HR & Compliance |13 min read

My Employee is Late THREE TIMES A WEEK! – HR AMA With Paul Edwards (October 2023)

Last updated February 18, 2024

Hello AADOM Tribe! Welcome back to the monthly LIVE Ask Me Anything with Paul Edwards, CEDR CEO & Founder, and Heather Colicchio, founder and president of AADOM. Anytime you feel like a little extra perspective, or help might be nice throughout the year, keep sending your most challenging HR questions to Paul and CEDR’s team of HR professionals. Our team will pick from the dozens of great questions you all submit and do our absolute best to give some effective and creative ideas for solving your issue. To submit your questions, click here…Click to open link in a new tab…!

All your daily human resource issues likely have some state, federal, or local employment laws that you must comply with while, at the same time, we know you are trying to find the best human way to solve the core problem. We will fit the two in this series together and help you devise some great resolutions.

Here are three of your best submissions this month. You’re not alone in being faced with these struggles; these are also issues that we help our members deal with daily in our solution center…Click to open link in a new tab…:

I have an employee who is late ALL. THE. TIME. We’re talking at least three times a week she shows up 30 minutes or more after her shift starts. She was an hour late today and left us stranded with a patient. I’ve finally had enough and just want to let her go. The trouble is, I never actually documented her performance issues. I’ve talked to her about it, but never made a record. Can I still let her go safely?
I recently had an employee get upset when they found out that their vacation time wasn’t going to be paid out upon separation (they put in their notice a few weeks ago). Our handbook states that unused vacation time will be forfeited upon separation, but this employee says that multiple other employees had their vacation paid out when they left. Could this be a problem from a compliance perspective?
It recently came to my attention that one of my employees took a second job somewhere else and I’m worried that it could create a problem for my practice. Can I tell them to quit the second job and terminate them if they don’t?

Let’s Get to the Answers

Question: I have an employee who is late ALL. THE. TIME. We’re talking at least three times a week she shows up 30 minutes or more after her shift starts. She was an hour late today and left us stranded with a patient. I’ve finally had enough and just want to let her go. The trouble is, I never actually documented her performance issues. I’ve talked to her about it, but never made a record. Can I still let her go safely?

The legal side of things: You aren’t required to have documentation or to issue warnings before termination. However, at CEDR, we are big fans of documentation…Click to open link in a new tab…. Why? The point of keeping records of an employee’s performance problems is threefold:

Your records of an employee’s performance issues can help you support your reasons for taking adverse employment actions against that employee, up to and including termination, and
Diligent record-keeping will help you demonstrate your efforts to manage your team in a way that is consistent and in accordance with labor laws.
An employee who is not told there is a problem often thinks there is no problem. The first step to accountability is to communicate there is an issue. Showing that you are communicating via documentation is the right thing to do, and it can help you manage people back to acceptable performance behaviors.

You never know if and when an employee might turn around and claim that you took an adverse action against them for an illegal reason.

Sure, you’ll have time records showing the employee has been coming in late. But your lack of records also suggests you were okay with letting that slide.

The question the employee’s lawyer will have is, why is it suddenly a big issue now? If something else has happened recently that puts some protection around the employee (they complained about pay, they announced they’re trying to get pregnant, they had a workplace injury, etc.), that could be enough to make a retaliation claim against you.

So, if you terminate an employee and they claim that your reason for doing so was an illegal one, it will be up to you to prove that you made the decision based on legal criteria. That’s where your documentation really comes in handy. In your case, if there are no other mitigating factors and you are comfortable in your complete understanding of what those factors might be, then the time records are your best friend.

Now for the human approach: Ensuring everyone on your team is on time to work is more than just a matter of timeliness; it’s a critical component of ensuring efficient operations and maintaining a high standard of patient care. When consistent lateness becomes a recurring issue, it sends ripples through the team and can hurt team morale and patient satisfaction.

In this particular scenario, where an employee is late three times a week, this ongoing tardiness isn’t something that goes unnoticed within the team. In fact, it’s likely causing some discomfort and dissatisfaction among colleagues who are left to manage the gaps left by the delayed arrival. This persistence in lateness signals a lack of consideration for team dynamics and can ultimately erode the sense of cohesion that’s essential for smooth collaboration.

Given the circumstances, it is clear that terminating the employee might be the most logical course of action for the sake of your business and the well-being of your patients. However, before making such a significant decision, it’s essential to conduct a comprehensive risk assessment. This would be asking yourself questions like the ones we mentioned above: has something happened recently that could reflect on this termination, such as the employee talking about pay, a recent workplace injury, an announcement that they are trying to get pregnant, and so on?

This entails examining the situation from various angles to ensure that no external factors are skewing the decision or potentially creating a perception of bias. By taking this step, even without great documentation other than those time records, you’re ensuring that your decision-making process is transparent and justifiable, which is essential for the integrity of your organization.

In summary, the challenges posed by chronic lateness extend far beyond the clock. They touch upon team dynamics, patient care, and the overall reputation of your business. If you’re a CEDR member, log in to backstageHR…Click to open link in a new tab… today and reach out to our solution center today to get guidance on whether or not there could be other factors at play with this termination that would put your business at risk.

If you’re not a member, be sure to reach out…Click to open link in a new tab…, and let’s figure out together how we can help you. In the meantime, here are some free resources to help you make sure you’re on the right path.

The short answer: Yes, you are probably going to be able to let the employee go for being late too often but you need to take into account everything we listed above.

Remember, submit your questions to Paul…Click to open link in a new tab… for a chance to be featured on the next HR Tuesday!

Question: I recently had an employee get upset when they found out that their vacation time wasn’t going to be paid out upon separation (they put in their notice a few weeks ago). Our handbook states that unused vacation time will be forfeited upon separation, but this employee says that multiple other employees had their vacation paid out when they left. Could this be a problem from a compliance perspective?

The legal side of things: First, to address the issue of withholding vacation pay upon separation, whether or not this is allowed varies from state to state. This is one of the top mistakes we see made in self-made employee handbooks.

Some states view vacation time as “earned wages,” meaning that time must be paid out to employees upon separation, whereas other states view vacation time as a “fringe benefit” that does not have to be paid out.

If you are in a state with a specific law saying that vacation time has to be paid out upon separation from an employee, or if you’re in a state that does not, it should always be outlined in your employee handbook. Then, when you are faced with separation, everyone knows what to expect. This is yet another way it pays to work with an expert…Click to open link in a new tab… to make sure your policies are in line with the laws in your area.

Now for the human approach: This brings us to the question of “consistency” in policy application. If you’ve followed our HR guidance for any notable period of time, you’ve probably heard us nod to the importance of implementing policies consistently more than a few times. In fact, it’s one of our favorite HR buzzwords here at CEDR, and with good reason.

Where consistent policy application is important for morale and professional reasons (when employees find out that one employee was treated differently than another, it can cause trust and engagement issues in the ranks), there is also a legal component to treating employees consistently and sticking to your policies as they are written with all of your team members.

When you treat employees differently on a case-by-case basis – for example, by being more lenient with time-off requirements for one employee than you are for others, by writing one employee up for a performance issue that you addressed with a simple verbal warning for others, or by paying out vacation for some employees but not others upon separation – this can create real risk for your business.

Your policies should be written the way they are for a reason – either because the law dictates how a specific set of circumstances should be handled by your business or when there are no laws saying how you have to handle a particular situation because they fit with leadership’s preference for how to handle a given employment situation. Ultimately, you want to be able to say, as best you can, we treat everyone alike to the best of our ability.

By operating outside the guidelines established by those policies, you create vulnerabilities that could all too easily become liabilities for your business. Remember, all employees are in at least four federally protected classes…Click to open link in a new tab…. And, when you make policy exceptions for one employee or a group of employees and not for others, you are leaving the door open for them to claim that those exceptions were made based on legally protected criteria, which could leave you on the hook for a potential discrimination claim by any employees that feel slighted.

Consistency is key in employee management, and this is true for both professional and legal reasons. So, if you find yourself wanting to make exceptions to your policies, it might be a signal that you should consider updating those policies so that they are easier to stick to for all of your employees whenever an issue arises.

The short answer: No, we would not recommend that you withhold vacation pay for some employees and not for others. It feels punitive and begs a closer look by outside forces.

Question: It recently came to my attention that one of my employees took a second job somewhere else and I’m worried that it could create a problem for my practice. Can I tell them to quit the second job and terminate them if they don’t?

The legal side of things: It’s best to begin this conversation with the following statement: as an employer, you have very little ability to dictate what your employees can and cannot do during their off hours. What you can do, however, is set expectations for what is required from your employees in order for them to stay employed at your business.

It’s a good idea to have a moonlighting policy in your employee handbook. But, rather than saying outright that employees are not allowed to hold a second job while working for you, that policy should outline your expectations for employees when they do wish to seek additional employment opportunities. This includes:

Letting you or management know they intend to look for or take another job.
Explaining that they need to continue meeting the expectations of their current role, which might include working occasional overtime and covering shifts, as needed.
Stating that employees may be terminated if that job begins to interfere with their ability to perform the duties of their current role.

Note that none of these expectations actually prevents an employee from taking a second job. Rather, your moonlighting policy should simply explain what it takes to remain employed by your business.

Now for the human approach: We’ve seen a recent spike in Solution Center…Click to open link in a new tab… requests surrounding the question of what to do about employees working a second job, so here’s a brief breakdown of that issue.

With the recent surge in inflation, increases in the cost of living, and a general feeling of uncertainty looming over the economy, it’s no surprise that working people across the country are tightening their belts. And for some, this means taking on additional work when the opportunity presents itself.

Our best piece of guidance on how to take the human approach with this? Open a dialogue about it with your staff. Have a conversation with your employees about what their needs are. If they’re having a financial issue, can you give them more hours? Is there an opportunity for them to make a higher rate with you (such as by getting another cert, taking on more responsibility, etc.)? Is there a temporary financial situation that something like an overtime or bonus opportunity would help with?

Opening up this dialog will go a long way with your employees, showing them you care about their well-being.

If your employee starts showing up late every day due to working late at their new job, for example, you can address the tardiness issue rather than penalizing the employee for taking another job. If they are still performing at the same level they did before taking the second job, you’re probably better off not addressing it at all.

The short answer: Yes, for the most part, if you have the correct policies in place, and you so desire, you can draw a line regarding what is required to keep their job at your business.

If you would like to add a compliant moonlighting policy to your employee handbook, or if you feel like an employee’s second job is having a negative impact on their ability to perform the work they are required to do for you, reach out to the Solution Center…Click to open link in a new tab… for expert guidance on how to address this issue in a way that protects your business.

Remember, HR TUESDAY DEPENDS ON THE AADOM TRIBE, ASKING GREAT HR-RELATED QUESTIONS! Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here…Click to open link in a new tab…!