CHAPTER 6
Excessive Absenteeism
and Tardiness

There is a lot to know about how to handle excessive absenteeism and tardiness, so rather than reinventing the wheel, allow me to excerpt a few pages from a book I’ve written called The Hiring and Firing Question and Answer Book. This introduction will provide you with a quick snapshot in terms of some of the key issues that you’ll want to consider before initiating disciplinary conversations or written warnings with your employees. In addition, note that attendance and tardiness problems typically lend themselves to written warnings once the issue is deemed to be excessive, so the goal of the conversations outlined in this chapter will focus on helping employees avoid getting to that “excessive” point of no return.

Commerce Clearing House (CCH) Inc.’s 2007 Unscheduled Absence Survey estimates that excessive absenteeism costs corporate America somewhere in the neighborhood of $600 per employee annually, which is a hefty toll considering that not all absenteeism stems from legitimate illnesses. (The CCH publishes the only survey that provides U.S. businesses with a clear look at the rate of unscheduled absences, as well as the financial impact of no-shows on companies nationwide. This annual survey asks HR professionals about unscheduled absence patterns in their organizations. The survey shows how unscheduled absence patterns change from year to year, which absence control programs are being used, and how effective they are considered to be.) The first place to look when addressing excessive, unauthorized absenteeism is your company policy. Many companies place caps on annual sick leave allowances; others refuse to write a policy for fear that the documentation will limit their discretion in dealing with employees on a case-by-case basis. Your decision to implement a policy should depend on the frequency of worker absenteeism relative to industry and geographic standards.

In addition, setting policy can be challenging because employers need to determine the parameters of the program:

• Will it measure actual days or incidents (i.e., an uninterrupted series of days off from the same sickness or injury)?

• Will a no-fault or an excuse-based system be more effective?

• Will a rolling year or a calendar year serve as the optimal performance measurement time period?

Beyond the nuts and bolts of your written policy, your past practices must also be closely examined. If you’re inconsistent in the application of your organization’s rules, a judge or arbitrator may determine that your fickle actions could justify a claim of wrongful termination, discrimination, or retaliation from a terminated worker.

How much time off is considered excessive? There’s no easy answer, but juries typically consider one sick day per month, or twelve days a year, as a threshold. More than that and it’s likely that the discharge will be sustained; less than that and a plaintiff attorney may be able to convince a jury that your decision to terminate was premature and possibly pretextual.

Fixing the problem can be accomplished in three steps:

1. Review your organization’s written policy with the help of legal counsel to ensure that you’ll be able to retain the most discretion in managing this thorny issue.

2. Review your organization’s past practices (for example, all of the disciplinary actions and terminations related to unauthorized absence in the past two years) across departments, divisions, and locations. Account for inconsistencies in prior decisions. Remember that you retain the discretion to change a policy or practice by notifying employees in advance and in writing: you’re not obliged to perpetuate a problem once you discover that changing the rule or practice could make things better. Simply follow a rule of reason: If employees are given advance notice of the organization’s changed expectations, they should be held accountable for meeting the new standard from that point forward.

3. Document substandard performance consistently.

The documentation itself should begin like this:

Maintenance of good attendance is a condition of employment and an essential function of your job. In order to minimize hardships that may result from illness or injury, our company provides paid sick time. However, periodic sick leave taken on a repeated basis may be viewed as abuse of the system. It is your responsibility to establish legitimate illness or injury to receive sick leave pay.

Note that many states have privacy laws that could affect an employer’s ability to ask for specific information relating to the need for sick time off. Therefore, an employee who is asked to establish a legitimate illness or injury shouldn’t necessarily be asked to reveal specific details about that illness or injury.

List the dates and days of the week of the actual incidents like this:

You have incurred five incidents of unscheduled absence in this rolling calendar year:

Friday, October 8, 2009

Monday, October 11, 2009

Friday, November 19, 2009

Monday, November 22, 2009

Thursday, December 23, 2009

In addition, document the negative organizational impact that resulted from the individual’s unauthorized absenteeism, which might look something like this:

This number of incidents has disrupted the workflow in our unit and has caused the department to incur unscheduled overtime because others have had to carry the extra workload. In addition, a temporary worker had to be assigned to your area so that the deadline for the Vanguard project could be met.

Finally, if your policy does not spell out the specific number of incidents that could lead to termination, include general consequential language like this:

It is imperative that you minimize any future occurrences of unscheduled, unauthorized absence. Failure to provide immediate and sustained improvement may result in further disciplinary language up to and including termination.

On the other hand, if your company policy spells out the number of incidents of unscheduled absenteeism that will result in dismissal, include that specific consequential language in the written warning instead.

You are now being placed on notice that according to company policy, if you reach seven incidents of unauthorized absence in the rolling calendar year, you will receive a written warning. A ninth incident of unauthorized absence in the rolling calendar year will result in a final written warning. A tenth incident will result in your immediate dismissal.

Patterning time off around weekends and holidays poses an additional challenge to you as an employer. If you look at the previous example, you’ll note that four of the five days of unauthorized absence occurred on a Monday or a Friday. The definition of a pattern is a frequent, predictable, and observable employee action that repeats itself over time. When employees take more than 50 percent of their time off around weekends or holidays, then a pattern may be established. (In the previous example, the employee took four of five days off on a Monday or a Friday, or 80 percent of his unscheduled absences around the weekend.) Just remember that this 50 percent rule isn’t a legal definition; it is, instead, a reasonable company rule that you may wish to establish.

Patterning, in this author’s opinion, is a separate infraction from unscheduled absenteeism. Consequently, it should be handled separately in the written warning. Simply create two headings in the written warning itself:

Issue 1: Excessive, unauthorized absenteeism

Issue 2: Patterning incidents of unscheduled absenteeism around regularly scheduled time off

Under this second heading, you might step up the consequence language like this:

Four of the five incidents of unscheduled absence occurred on either a Monday or a Friday. You have therefore demon strated a pattern of taking time off around your regularly scheduled weekends.

If any other patterns appear in the next year in terms of how you take time off—that is, if you take days off either before or after weekends, holidays, or vacations—you will be subject to further disciplinary action up to and including dismissal.

In addition, human resources will be notified of every additional occurrence of absenteeism from this point forward in order to provide you with additional support. Finally, you are now formally notified that any further occurrences of sick leave must be substantiated by a doctor’s note. The doctor’s note will not excuse the absence; it will, instead, allow you to access your sick leave accrual bank. The doctor’s note will be necessary to return to work.

Note that in many states, employers may institute a policy requiring a doctor’s note verifying the illness from employees who use a certain number of sick days in a row. With these progressive discipline tools in hand, you should be successful in minimizing further incidents of “patterning” because most employees will avoid this perception problem once it’s been brought formally to their attention.

There’s one more key issue that you’ve got to be aware of when heading down the road of disciplining employees for excessive absenteeism. In certain cases, the Family Medical Leave Act (FMLA), a labor standard and leave law, may hinder your ability to discipline effectively. The FMLA makes you liable for punitive damages should you run afoul of its rules. It’s no surprise, therefore, that many employers avoid confronting excessive absenteeism for fear of facing a lawsuit somewhere down the road.

Still, a little knowledge will go a long way in shedding some light on the mysterious shadows surrounding the FMLA. Does a doctor’s note legitimize excessive absenteeism? More important, does it mean “hands off” any employee who relies on a doctor’s note to substantiate his own or a family member’s illness? These are difficult questions and will depend on the laws of your state.

What’s important to remember when looking at the FMLA’s reach over your company’s performance management program is that FMLA-related leaves apply only when an employee or family member has a serious health condition as follows:

1. An episodic or chronic condition that requires inpatient hospital stays

2. Continuing treatment by a healthcare provider

3. A period of incapacity of more than three calendar days

More often than not, employees who take off for sick time don’t necessarily meet the threshold of having a serious health condition. As such, the FMLA may have little impact on your decision to document excessive absenteeism in the form of progressive discipline or to ultimately terminate an employee who violates your company’s absenteeism control policy.

On the other hand, doctors’ notes may preclude you from taking any adverse action (including progressive discipline or termination) against an employee for one key reason: in certain states, medical certifications need not identify the condition being treated unless the employee consents. Therefore, a doctor’s note will usually only tell you the date of the condition’s onset and its estimated duration—no more. As a result, determining if an FMLA-qualified “serious medical condition” is the cause may be difficult. When in doubt, speak with legal counsel about your rights when doctors are padding an employee’s file and allowing the individual to take excessive time off. Cases like this need to be handled on a case-by-case basis.

Scenario 35: Excessive Unscheduled Absence: “No Fault” System

A “no fault” attendance control system does just that—it looks beyond the reasons for incidents of unscheduled absence and simply counts the number of occurrences. No-fault systems assume that people will need to be out from time to time and establish numeric thresholds that violate the policy. For example, a hospital may set its no-fault system as follows:

• Five incidents of unscheduled absence = verbal warning

• Seven incidents of unscheduled absence = written warning

• Nine incidents of unscheduled absence = final written warning

• Tenth incident of unscheduled absence in a rolling calendar year = termination

The idea behind this kind of system is that it’s fair and consistent in its treatment of employees and does not ask for employee justification (as would be the case in an excuse-based system). Conversations with employees governed by a no-fault system are simple and straightforward; what becomes important is that you provide them with a copy of your company policy so that they understand the consequences of future incidents of unscheduled absence.

The Solution

In a program like the one just outlined, it’s best to meet with employees well before they reach the fifth incident. Let’s assume that an employee reaches a third incident of unscheduled absence in the rolling calendar year. It would make sense to have the following conversation:

Rudy, we need to talk about yesterday’s absence. As you know, our company has a no-fault attendance control policy, meaning that we don’t ask employees to justify or give details about the reasons for their unscheduled absences. We respect that people get sick from time to time, as do their family members, and we don’t want to invade anyone’s privacy.

However, this is your third incident in the rolling calendar year, and I’m not sure if you’re aware how our policy works. At our hospital, we’ve structured the attendance control policy to allow for four incidents of unscheduled absence in a rolling calendar year without triggering any formal company response.

Therefore, on the fifth incident, you’ll receive a formal verbal warning. On the seventh incident, you’ll receive a written warning. And on the ninth incident, you’ll receive a final written warning. A tenth incident in the rolling calendar year would result in your termination. Here’s a copy of the written policy so you can review it. Were you aware of how our policy works, and do you have any questions? [Actually, I didn’t know, so thanks for telling me.]

Of course. Let’s talk more about that, though. I know it’s intuitive that companies don’t want employees to take unscheduled days off due to illness, but we get that it happens sometimes. Just so you’re aware, though, when someone calls in at the last minute, we’ve got to scramble to get coverage. We either have to redistribute duties for the day so that coworkers can cover for the missing person, or we have to call a temp agency to send someone over, which we rarely get to do because of budget constraints.

I’m telling you all this because I don’t want you to take any of this for granted—not that you are, but sometimes people assume that those first four days are “freebies.” When that happens, it becomes an issue of entitlement. What I’m here to tell you is that employees aren’t supposed to take them off. They certainly can if there’s an illness involved, but I don’t want you or anyone else on staff to consider those days like extra vacation days. That’s not what they’re meant to be, and as you might imagine, coworkers can get a little miffed over time if they feel like they’re continually being asked to cover for a peer. Could you see how that might happen? [Yes.]

Great. Then I hope you’re feeling better, and I’m glad you’re back. Thanks for meeting with me, and let me know if you need anything or if I could help in any way. [Thanks.]

It’s interesting how a simple talk like this could go a long way in sensitizing the employee to the fact that you’re aware of the absences, tracking them, and holding everyone accountable for being at work with very little exception. In truth, many workers do indeed view sick days like vacation days (i.e., as an entitlement). Once you’ve outlined your concerns and shared the policy with even one employee, you’ll be surprised how few incidents occur in your group from that point forward. They do talk with each other, after all.

Scenario 36: Excessive Unscheduled Absence: “Excuse-Based” System

In comparison to a no-fault system, an excuse-based system actually looks at the reasons behind the incidents in terms of determining if discipline is warranted. Those reasons are typically documented in the written warning itself if it comes to that. And the reasons behind the absences are certainly up for discussion in terms of counseling the individual if excessive, unscheduled absenteeism appears to be becoming a pattern.

The Solution

Here’s how you might handle a typical conversation with an employee if your company adheres to an excuse-based attendance control system:

Jamie, we need to talk about yesterday’s absence. Although this hasn’t risen to the level of formal progressive discipline, I’m concerned that the number of occurrences and the reasons for them are becoming problematic.

Yesterday morning at 7:30 A.M., you called me to tell me that you wouldn’t be able to come to work. I asked you why that was the case, and you told me that you were obligated to attend a family-related function. If that was indeed the case, you could have advised me in advance of the time you needed to be away from work so that I wouldn’t have had a last-minute scramble to reassign work to the rest of the staff. Just so you know, I ended up doing the majority of the work on your desk myself, which stopped me from doing my regularly scheduled work, and now I’m behind a day as well.

On May 13, you also failed to report to work without prior notice. When I called you at home at 9:00 A.M., you said you were feeling sick and had overslept. I had previously reminded you and the other members of the staff that if you were ill, you still had the responsibility of contacting the company receptionist by 7:00 A.M. so that we could get a temp in to cover your desk. Because you hadn’t called in at 7:00 A.M., a half day’s productivity was lost as we awaited the temp’s arrival that afternoon.

And back on April 25, you failed to report to work without notice. I asked you why you were out when you returned to work the next day, and you told me you didn’t have a good reason but that it wouldn’t happen again. I didn’t pursue the matter any further because that was your first incident of unscheduled absence, and I believed you when you assured me that it wouldn’t happen again.

Clearly, I’m a little frustrated here, primarily because I don’t know exactly what’s going on at your end. However, I’m concerned that this may be becoming an issue of entitlement. It’s important that I remind you that employees aren’t supposed to take sick days off. They certainly can if there’s an illness or other legitimate reason involved, but I don’t want you or anyone else on staff to consider those days like extra vacation days. That’s not what they’re meant to be, and as you might imagine, coworkers can get a little miffed over time if they feel like they’re continually being asked to cover for a peer. Could you see how that might happen? [Yes.]

Okay, then I won’t beat the issue into the ground. Just know that three incidents of unscheduled absence in a three-month period really concern me. I expect everyone on our team to hold themselves accountable for all aspects of their and the department’s performance. Do I have your commitment that you’ll assume responsibility for improving the situation at hand from this point forward? [Yes.]

That closing line becomes very important in a situation like this. After all, Jamie is now cognizant of the fact that you’re aware that she let you down on April 25 and, more important, that you haven’t forgotten. Suffice it to say that you’ve increased her sensitivity to this whole matter of unscheduled absences, and you’ve done it very nicely—but the point has been driven home. You’ll more likely than not experience a significant reduction in terms of Jamie’s unscheduled absences from this point forward.

Scenario 37: Patterning Excessive, Unscheduled Absence Around Weekends

As defined earlier, a pattern is a frequent, predictable, and observable employee action that repeats itself over time. When employees take more than 50 percent of their time off around weekends or holidays, then a pattern may be established. It’s certainly worth sensitizing a subordinate to the fact that you’re aware of the coincidence that the occurrences often happen on Mondays and Fridays.

The Solution

After you’ve discussed the issue of excessive incidents of unscheduled absence, it’s time to add the following language to your discussion regarding the potential patterning that you’re starting to see. Once an employee realizes that you’re onto that particular little factoid, the problem typically soon fixes itself.

Sarah, now that we’ve discussed the number or quantity of incidents, we’ve got to discuss the quality, so to speak. Yes, I look at the number of unscheduled absences. But I also look to see when they’re occurring on the calendar. In your case, two of the three incidents either happened on a Friday or a Monday, and that’s a separate problem in and of itself.

The way we look at it, any time an employee takes more than 50 percent of his or her time off around weekends and holidays, we may have a pattern problem on our hands. In your case, with two of the three incidents happening around the weekend, that represents 66 percent of your incidents occurring on either end of your regularly scheduled time off. That’s an additional problem and is considered a separate infraction, as far as I’m concerned.

Yes, three incidents won’t trigger anything formal at our company in terms of a disciplinary response. And two of three incidents occurring on Mondays or Fridays may be pure coincidence. But I need you to become very sensitive to this issue as well. In short, I need you to fix both areas. Can I count on you to do that? [Yes.] Good. Thanks for meeting with me and agreeing to fix this issue.

And voilà—mission accomplished! Once an employee experiences this sit-down and commits to fixing the problem, the patterning problem should stop immediately. Now, of course, you may have a sick employee who shows up to work on Monday morning out of fear of having one more of these “talks” with you, but hey—you could always send the employee home if he or she isn’t feeling well. At least then you’ll be part of the solution and have a better handle on what’s going on staff-wise.

Scenario 38: Rolling Calendar Year Maneuvers

Many companies employ a rolling calendar year when it comes to their absenteeism control policies. In comparison to a calendar year, which simply runs from January 1 to December 31, a rolling calendar year is triggered by today’s date and goes backward from there. So if today’s date is May 13, 2009, the rolling calendar year goes back exactly one year and one day to May 14, 2008.

As you might guess, some employees game the system. In essence, they pattern their time off around the calendar year, so that when one date falls off the calendar from a year ago, they take a new day, always conscious of staying below a fifth incident (which, in our case, would trigger a first, formal warning). These “gamers” think they’re getting away with something—that is, until you sit them down and let them know that you’re on to their game.

Note that in a union environment, your ability to enforce a policy that limits such calendar gaming may be severely restricted. That’s because if the collective bargaining agreement spells out a five/seven/nine/ ten system, you may not be able to reinterpret the rules and censure employees for taking new days when old days roll off the rolling calendar. You can appeal to their sense of responsibility and commitment, but you may not be able to formalize any disciplinary action against them. In our previous example, we’re assuming the employee in question is at-will and that you have the right to reinterpret this problem as good business practices would dictate.

The Solution

Here’s how your conversation might sound:

Wes, now that we’ve discussed the number or quantity of incidents, we’ve got to discuss the quality, so to speak. Yes, I look at the number of unscheduled absences. But I also look to see when they’re occurring on the calendar. In your case, you seem to be taking time off whenever a prior incident rolls off the rolling calendar year.

Here’s how I came up with that. When you took the day off yesterday, May 13, I noticed that you also had an absence on May 13 of last year. So now that it’s one year later, we can’t count the May 13 incident from last year toward the five incidents necessary to receive a formal warning. Therefore, in essence, the day that one incident fell off the calendar, you immediately took another day.

Now I’m not accusing you of doing this on purpose or of gaming the system. I realize that this may have totally been by oversight or coincidence. But you’ve got to be careful here: If you create what looks like a pattern, taking a new sick day off any time an older incident falls off the rolling calendar, it will be a problem and it won’t work for me.

I’m not unreasonable when it comes to these types of things, but if I sense that an employee is gaming the system and taking off new time once older dates have fallen off the radar screen, then that would be considered a separate offense in and of itself in my opinion.

In fact, I’m sure if you were the supervisor, you wouldn’t want people on your staff who report to you playing those types of games. Again, like I said, I’m not accusing you of anything. I just wanted to heighten your level of awareness when it comes to these sorts of things because they could get in the way of an otherwise successful career with our company. Can you understand why I’d want to give you that heads-up? [Yes, I understand.]

Once again, you’ll have proactively addressed a pending problem situation by sensitizing a subordinate to how their behaviors might appear to others. Congratulations again, Ms. Supervisor—job well done!

Scenario 39: Excessive Tardiness

Regular attendance and punctuality are expected of all employees. Workers are expected to commence and end their work on schedule, meaning that they’ve not only clocked in by 8:00 A.M. but that they’re sitting at their desks and ready to begin work at that time as well. Accordingly, arriving late or leaving early poses significant problems for your company, and both fall under the definition of tardiness. And as most employees know, repeated incidents of tardiness may result in disciplinary action, including possible discharge.

When documenting problems relating to excessive tardiness in the form of a written warning, it’s important that you list the arrival (or departure) times of the individual so that the appropriate record is made. In the following example, the starting time is 8:00 A.M.:

Of course, if you have an electronic timekeeping system, there will be no dispute as to the time of clock-in. However, if you measure this manually, make sure the employee knows at the time of occurrence that you’ve marked down a late starting time so that he can’t later argue that you had mistakenly jotted down the wrong arrival time.

It’s true that many good, hardworking people are occasionally late. However, workers who have a tendency of being habitually late cause serious problems, both in terms of productivity and morale. After all, an employee who is habitually late can have a demoralizing effect on other staff members who arrive to work on time. Worse, habitual lateness tends to be an infectious disease: Before you know it, others will start matching themselves to this lowest common denominator, seeing that there is no consequence for such behavior.

Of course, the key question is, where do you draw the line on tardiness? And how do you select one person to discipline for habitual lateness when you don’t discipline others for occasional lateness? Ah, isn’t management fun?

The Solution

Generally speaking, if a person is ten or more minutes late more than four times within a given month, it may be time for a gentle chat. Assuming the employee’s overall performance is acceptable (with the exception of this one little issue), your conversation might sound like this:

Mark, I enjoy having you on our team, and I’m impressed by the consistent work that you do. I’ve got one issue that I’ll need your help with, though, and I’m wondering if you could guess what that is. [My tardiness?] Correct! I’m glad you see it, too. I don’t want to make too much of an issue over this, but I do get concerned if occasional lateness could possibly turn into habitual tardiness, and I just don’t want to go down that slippery slope. Is this something that you could fix now that I’ve brought it to your attention? [Yes, and I’m sorry I made you have to have this talk with me.]

And that should be all that’s necessary to fix this minor problem before it becomes more progressive and pronounced. Now what about the employee who already demonstrates habitual tardiness? How do you address his situation once the problem is noticeable to others and possibly causing them to feel resentful? In such cases, try a discussion like this:

Rebecca, I enjoy having you on our team, and I’m impressed by the consistent work that you do. I’ve got one issue that I’ll need your help with, though, and I’m wondering if you could guess what that is. [My tardiness?] Correct! I’m glad you see it too.

One of the things you need to understand is that although your work product and customer service are very strong, your ability to get to work on time makes up a significant part of your overall performance as well. And I’m afraid that your being late four times in the last two weeks is now at a point where it’s noticed by others and may be negatively affecting morale. That’s why I’ll need to ask you to take a whole new approach to timeliness and assume full responsibility for fixing this part of your overall performance. Can I count on you for that?

[Well, other people come in late too. I don’t mean to place blame or get others in trouble, but are they going to be held to this same standard?] Yes and no. First, Rebecca, there’s a difference between occasional and habitual lateness. I’m not an ogre about these things: I realize that occasionally someone may be running late for whatever reason. But in my mind, that’s one day a month, not four days in two weeks. Your tardiness is now becoming habitual, meaning that we could expect to see you arriving to work ten to thirty minutes late every few days.

In short, treating situations like these consistently is key here, not necessarily treating all situations the same. So you know, though, I’ll remind everyone to cut down on any unnecessary tardiness, so expect that message to be one of the talking points at our next staff meeting. For now, I’d like you to focus on your performance only and not worry all that much about anyone else on the team. Does that sound fair? [Well, okay.]

Good. Then will you make a commitment to me to avoid future incidents of lateness to the best of your ability and to assume responsibility for the perception problem that’s been created? [Yes.] Thanks—I appreciate your willingness to help here.

Tardiness is one of those issues that typically fixes itself after a gentle talk. Just remember to distinguish between occasional and chronic lateness when discussing this topic with repeat offenders. You’ll find that one talk does it all when dealing with this particular workplace topic. If a written warning needs to follow because the behavior doesn’t change, however, then refer to the date of this conversation in your written warning to demonstrate that you’ve accorded the employee with workplace due process.

Scenario 40: Exempt Employees Who Choose to Come and Go as They Please

All this discussion about tardiness leaves one more target area needing redress: exempt employees who feel that they have the right to come and go as they please and who see nothing wrong with arriving two hours late or leaving two hours early. After all, exempt workers aren’t paid for their time: they’re paid for their work product and the result of their labors. Since they’re not paid for their time, they reason, then time shouldn’t be a boundary or a hindrance of any sort.

Funny enough, in a way this individual’s logic is right on the button. Nonexempt workers are protected by the provisions of the Fair Labor Standards Act (FLSA). They are paid for their time and will be docked if they come in late but receive overtime pay for hours worked in excess of forty in a week. Exempt employees, in comparison, are “exempt” from the protections of the FLSA (which is where the term exempt comes from) and could work until midnight every night without receiving a dime extra in pay. The question is, does that give them carte blanche to come and go as they please any time they want, and more important, does that limit your discretion as their supervisor to insist that they adhere to normal business hours?

The Solution

Before you engage in a debate about the merits of differing interpretations of the FLSA’s intent, just remember to keep it simple: Even though exempt employees are not paid for their time, you still have every right as a supervisor to expect all employees—exempt or nonexempt—to adhere to regular store hours.

Here’s how the situation played out at a research hospital where one particular scientist felt he had the discretion to come and go as he pleased. The laboratory head confirmed with human resources that, generally speaking, he had the right to insist that the researcher arrive at work at 8:00 A.M. and remain in the lab until 5:00 P.M. Furthermore, the laboratory head clarified for HR that there was a logical business rationale for his request: The employee in question needed to be available to meet with colleagues and clinicians who visited the lab on a regular basis. Armed with that information, the laboratory head held the following conversation with the researcher:

Doctor Johnson, I needed to meet with you in private because I see that you’re keeping very erratic hours. This morning you came in at 10:30 A.M., and last night you left at 4:00 P.M. I’m not quite sure why that’s happening since you haven’t mentioned anything to me or gotten my advance approval to arrive late or leave early, so would you mind sharing with me what’s going on?

[Well, I had to come back at midnight the night before last to check on my petri dish experiments, and I thought it would be appropriate to sleep in this morning. Last night I left at 4:00 P.M. because I knew I’d have to be back in the lab right at midnight, so is this a problem?]

Well, yes it is for two reasons. First, you didn’t ask for permission or otherwise give me any heads-up that you’d need to come back at midnight. As a result, I simply assumed that you were coming and going as you pleased. Had you told me those things, I wouldn’t have had a problem granting you that flexibility. But because I didn’t know, some of the administrative assistants and junior lab researchers who are paid hourly felt that it was unfair that you could come and go at your own discretion when their pay would be docked under similar circumstances. Had I known about your midnight returns, I could have explained this to them and shared that I had given you advance approval to arrive late and leave early, so this wouldn’t have been a problem.

Second, though, I want to be clear that there is a legitimate business need for you to be present during normal business hours so that you can meet with colleagues, clinicians, and anyone else visiting the lab on a regular basis. Just because you’re an exempt employee doesn’t mean that you’re not accountable for your time or that you can come and go as you please. It’s true that we don’t pay you according to the hours you log in, and we also don’t track your comings and goings in that sense. That being said, however, I would still expect you to be here at 8:00 A.M. as well as 5:00 P.M. unless you’ve received advance approval to leave early or arrive late.

Special Note

Treating exempt employees as nonexempt workers in any manner may risk destruction of their exempt status. Deductions for work-rule violations requiring exempt employees to punch a time clock or awarding hour-for-hour compensatory time off are all examples of how an employer may destroy the exempt status and be required to pay back overtime. Although that’s not really at issue in our previous example, be sure and check with your human resources department or with qualified employment counsel to ensure that this way of handling this particular issue poses no threats of jeopardizing the exempt status of your workers.