When employees fail to report for work without notifying their supervisor ("no call/no show"), an employer can be left scrambling to find a replacement. Maintaining productivity levels might also be difficult. The situation can become more frustrating and costly if it happens more than once or with more than one employee. And after a number of no calls/no shows, an employer may consider the job abandoned. To address these situations, employers may include job abandonment guidelines in their attendance policies. Here are some points to consider when drafting and enforcing such provisions.
Communicate clear notice requirements.
It's a best practice to have a written attendance and punctuality policy that requires employees to give the company reasonable notice for unexpected absences where possible.
Your policy should outline who the employee should contact (for example, their supervisor), when (before the start of their shift, when possible), and how (such as, by phone).
When crafting your attendance policy's notice requirements, also pay attention to notice requirements for any leave of absence laws that may apply to your business, and make sure your notice provisions comply.
Consider extenuating circumstances.
Extenuating circumstances, such as a serious accident, emergency or illness, may prevent employees from giving notice. This is particularly important when the employee's absence is protected under a federal, state or local law where the employee may not be required to provide advance notice.
Taking adverse action against an employee for a protected absence or for failing to provide advance notice, could violate these laws. For these reasons, consider establishing procedures for attempting to contact the employee, before your no call/no show policy is enforced.
Draft policy language carefully.
Many employers draft policies stating that if employees fail to report to work without proper notice, they may be subject to discipline, up to and including termination. This gives the employer some flexibility based on the facts and circumstances of each case, including the severity of the offense and any past performance and conduct issues.
To address repeated violations, many employers state in the policy that after a certain number of consecutive missed shifts without notice, the company will consider the job abandoned (that is, the employee quit).
Many employers have discretion to determine how many consecutive absences without notice will be considered job abandonment, but some states may have laws that address what timeframe is considered reasonable.
Review decisions before acting.
If after fully evaluating the circumstances, you determine that the employee has abandoned their job or is subject to discipline for violating your policy, carefully consider next steps.
Be sure to comply with all applicable laws and act consistently with how you have handled similar situations in the past. You may want to work with legal counsel during this review, especially if the decision involves termination.
Notify the employee and document.
When you determine that the employee has abandoned their job or is subject to discipline for violating your policy, notify the employee in writing via certified mail with return receipt requested.
As with all employment decisions, keep adequate documentation in case the decision is ever challenged, or you need it to support future disciplinary decisions.
Comply with final pay and other separation requirements.
Final pay
In cases of termination, remember to comply with applicable final pay requirements, including requirements to pay employees for accrued but unused vacation and other paid time off. Under federal law, final pay is generally due by the next regular payday, but many states require final pay sooner.
In some cases, this timeframe differs depending on whether the employee initiates separation or the employer initiates separation. For final pay purposes, job abandonment is generally considered an employee-initiated termination without notice, but check your state law to verify this.
Benefits
If the employee is enrolled in group health insurance sponsored by your company, separation may entitle the employee to health insurance continuation (or "COBRA"), which triggers certain notice requirements. Work with your health insurance provider to ensure compliance.
If the employee is enrolled in a company retirement plan, you should also provide information on their options after leaving (such as cash out, roll over, or keeping the plan as-is). Consult legal counsel and your benefits administrator for specific requirements.
Separation notices
Several states require employers to provide a separation notice detailing, among other things, the reason for, and date of, the separation. In some cases, these notices are given to the employee, but some states require employers to send the notices directly to the state unemployment agency.
Some states also require employers to provide written information about unemployment insurance benefits or an unemployment insurance pamphlet to employees at the time of separation. Employers may also be required to provide notices about certain other benefits. Check your state requirements to ensure compliance.
Seek return of company equipment.
Upon termination, instruct the employee to return all company equipment. If the employee fails to return company property, you may want to speak with legal counsel about your options.
As a general rule, you may NOT withhold final pay until an employee returns company equipment. You must meet the applicable final pay deadlines even if the employee hasn't returned company property.
For non-exempt employees, the Fair Labor Standards Act (FLSA) does permit employers to make deductions from employees' pay for lost/stolen/unreturned equipment provided it doesn't reduce the employee's pay below the minimum wage and does not cut into any overtime pay. However, some states prohibit this practice or have additional requirements, such as requiring prior written consent. Check your state law before making a deduction. Keep in mind the FLSA does NOT permit this type of deduction from exempt employees' pay.
Conclusion
While no call/no shows aren't the norm, they can be disruptive when they do occur. Carefully develop policies and procedures to help your company prevent and respond to these types of situations.