Employee Shows Up Late/Leaves Early & You Want to Discipline Them? First, a Few Thoughts

Every employer has encountered it at one point or another:  one, several, or all of their employees show up late to work or leave early without prior approval.  It is one thing if time off has been requested or prior approval has been granted.  It is another thing when the employee is expected to be at work and simply shows up late or leaves early without getting approval to do so from their supervisor.  

Often, when an employer learns of an employee's tardiness or decision to leave early, the employer wants to immediately discipline that employee.  Before an employer acts, however, there are a few things to keep in mind:

• Set out expectations clearly for each employee.  Has the employee been made aware of the employer's expectations on when to be in the office?  Employers should note that simply relying on the arguments of "employees should have known when to be here" or "they should have recognized when other employees were required to be here...the same rules applied to everyone" likely are insufficient.  If no expectations have been set out, it is often difficult to attempt to discipline an employee who shows up late or leaves early. 

• Ensure that employees know who to report to in the event an emergency arises and they need to show up to work late or leave early.  It sounds simple enough, but you would be surprised how many employers do not establish a procedure for employees to follow in the event an emergency arises and the employee needs to show up late or leave work early.  If the employee does not know who to report to, or how to do it, it is difficult to discipline the employee for an unexcused absence.  As a result, make it clear on what an employee should do if an emergency arises that would disrupt their work schedule.

• Make sure the employee handbook dictates how an employees' tardiness or decision to leave early will be addressed by the employer.  If the employer does not have an employee handbook, consider making one.  Does the employee handbook address how employee tardiness or decision to leave early will be addressed?  Some employers provide that before any disciplinary action is taken, the employee will receive a verbal or written warning.  If that is the case, follow what the employee handbook dictates.  No employee handbook?  Well, this might be a good time to implement one.

• Not all employees will be disciplined the same way.  Consider the employee's job responsibilities and expectations before deciding what to do.  Are all employees treated the same way in regard to how tardiness or deciding to leave early is handled?  All employees of similar standing should be dealt with in the same way.  For instance, if a legal assistant routinely shows up to work late while one of the senior associates does as well, these employees might be dealt with differently.  The legal assistant likely needs to be in the office during 'normal' working hours to answer the phone, talk with court staff, and interact with opposing attorneys.  The senior associate though likely has more latitude to come in a little later as they can do work after hours at the office, at home, or on the road while traveling.  Note, I am not saying that anyone should get a free pass.  Rather, consider who is showing up late or leaving early when determining how to handle unexcused absences from the office.

• Ensure that employees are disciplined evenly so as to avoid discrimination claims.  Employers need to ensure that any discipline of employees is done evenly across the board.  So long as the situation is the same without major differences (ie  a few paralegals routinely come in late every Monday morning without prior approval), one employee should not be more severely disciplined than the others.  Granted there are always extenuating circumstances and no two situations are the same, but employers need to be wary of possible claims of discrimination if one employee is routinely singled out above the others. 

• Beware of time theft; if the employee is non-exempt and still getting paid for unexcused absences, that is a problem that must be addressed.  Is the employee an exempt or non-exempt employee?  If the employee is non-exempt and subject to overtime wages, the employer needs to be sure there is no "time theft" going on and the employee is not getting paid for time not actually spent working. 

Granted, this list is not exhaustive but provides employers a few things to keep in mind when determining how to discipline an employee who shows up to work late or leaves work early without prior approval.