By: Rob Parker

A recent HR Hotline call brought up an issue we see quite frequently: termination of an employee where poor performance has not been documented. Of course, in these situations, things are always more complicated than they first appear. This was the case in this recent HR Hotline call.

Company recently rehired an employee. When this employee worked for Company before, she had attendance issues (i.e. being late for shifts, leaving early, etc.). The employee resigned from her position before Company took any disciplinary action for the attendance issues. Company decided to rehire this employee despite these attendance issues because they had limited options in this tight labor market.  Almost immediately, she began the same pattern of poor attendance — late arrivals and early outs.  While being counseled about her attendance issues, she informed Company that she was pregnant.  Her manager reminded her of the attendance policy and documented the warning in her personnel file. Despite the documented warning, the employee continued her unsatisfactory attendance pattern. She alleged that some of these absences, late arrivals, early outs, etc. were due to her pregnancy, but others were not.  According to Company’s attendance policy, she was already past the threshold for termination.  As if things were not already complicated enough, she was also only a few weeks away from being eligible for FMLA.

This situation is not uncommon. We get calls, emails, etc. from members quite regularly with similar situations. The employer wants to terminate the employee but lacks sufficient documentation to support the reason for the termination. The employee has informed the employer that he or she wants to apply for FMLA.  In this recent HR Hotline call, the fact that the employee is pregnant only complicates the matter further considering the Nevada Pregnant Workers’ Fairness Act.

There are several issues that are problematic:

• The employee is intermingling pregnancy-related absences with non-pregnancy related absences.
• Company should have already terminated the employee based on the employer’s attendance policy.
• Coworkers are getting angry for having to pick up the slack during her excessive absences.
• The employee is very close to being eligible for FMLA and termination may look like retaliation for requesting it.
• The Nevada Pregnant Workers’ Fairness Act prohibits employers with 15 or more employees to take adverse action or deny a reasonable accommodation to employees based on pregnancy or a related medical condition.

Although the employer desired to terminate the employee, after consultation, Company decided to counsel the employee again, reminding her how many attendance points she had due to non-pregnancy related absences and that she would still be held accountable for those absences.  This counseling would be considered a final warning.

What is the ultimate outcome in this situation? We don’t know … yet. This matter is still in progress and we will not know what will happened until later.  Managing the attendance issue while getting closer to FMLA eligibility will be a challenge.

This is another example of why it is important for managers to document performance issues as they occur so that if protected activity, such as requesting FMLA leave, filing a workers’ compensation claim, or alleging unlawful harassment, occurs there will be adequate documentation to support disciplinary action, up to and including termination, while mitigating a charge of retaliation.