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HR Magazine, April 2001: Missing in Action

HR Magazine, April 2001Vol. 46, No. 4

When an employee abandons a job without warning, how should employers seek closure?

It’s enough to make a supervisor weep. Why would an essential employee simply fail to turn up for work—for a day, or two or more?

There could be a million answers to that question—and none will satisfy a frustrated manager. But, by far, the more important question is: How should the employer respond to job abandonment?

“Job abandonment is probably more common these days because the economy has been so strong, and workers have a lot of options, especially young people in entry-level, unskilled or service positions,” says Greg Kult, an attorney and shareholder with Hall, Render, Killian, Heath and Lyman in Indianapolis. Labor shortages in recent years have created ambivalence among employees and hiring managers about job-hopping; there is no longer a stigma attached to having multiple short-term positions, or even holes, on the resume. “Job-switching has become so prevalent and casual that, in an employee’s mind, it may seem inconsequential simply to leave without giving notice,” Kult notes.​

Kult’s firm represents a number of health care clients, and perhaps because of concerns about patient care, he sees few cases of job abandonment. “The problem is more significant in lower wage, unskilled jobs, because those are the easiest to walk away from for an opening across the street.”

The Three-Day Rule

When an employee disappears without a trace, the company has no choice but to terminate employment. But the separation is almost always classified as a voluntary resignation, and, as a result, the employee will not qualify for unemployment benefits.

Employers differ wildly on how long they will cool their heels before enacting the separation. Some consider five days of “no call, no contact” to be abandonment. The handbook for employees of the state of New York allows a generous 15 days without contact before a job is considered abandoned. On the other hand, the Nebraska Health and Human Services System grants just 24 hours.

But employment policy experts are coming to consensus on a three-day stipulation. “I learned a long time ago that three days is safe,” says Ethan Winning, employee relations consultant and author of Labor Pains: Employer and Employee Rights and Obligations (E.A. Winning & Associates, 2001). In his experience, “Two days is not enough, and four days is a lifetime.” Many states, such as California and Maine, have case-law precedents on the books supporting the three-day stipulation. Check with an attorney for your own state’s history.

If the missing person is hospitalized, incarcerated or stranded without a phone, for example, you probably won’t hear from him the first day of absence, and perhaps not the second either, if the situation is extreme. “But by the third day, most people will have found a way to contact an employer,” says Winning.

Three days also allows time for HR to investigate the absence. In many cases, the missing employee may indeed have made contact with the organization but not with the appropriate supervisor. A co-worker, receptionist or line manager may have received the message but failed to pass it up the chain. “That’s why we recommend the three-day wait,” says Chris Hoffman, a labor attorney with Fisher & Phillips in San Diego. “It’s a safeguard for our clients; they can’t always trust their front-line managers to give them all the info.”

When FMLA Is a Factor

An employee who is unexplainably absent for possible medical reasons can create a sticky situation with regard to the Family and Medical Leave Act (FMLA), Hoffman points out. “If the employee’s absence is suspected to be medically related in any way, the employer must investigate.”

Consider the scenario of the employee who goes missing after telling his supervisor of a doctor’s appointment. “Under Department of Labor regulations, the employer should be spending those three days trying to find out what’s going on, because the company arguably had notice of the employee’s medical status,” Hoffman explains. If the absence is medically related, FMLA kicks in, and the employee cannot be terminated as a no-show.

Employees with conditions covered by the Americans with Disabilities Act (ADA) also challenge the no-call, no-show litmus test for job abandonment. In the case of an employee with a history of psychiatric illness, periodic unexplained absences may be part of the drill. “An unscheduled leave of absence can be considered a reasonable accommodation [under these circumstances],” says Hoffman.

Hoffman cautions that even if you know for a fact that a no-show employee is working somewhere else, you shouldn’t assume the separation will be uncomplicated by FMLA issues. “You should still investigate if you suspect an absent employee is working elsewhere. Say a worker had a job in your warehouse and developed back problems. He leaves without notice and begins working a clerical job elsewhere. An employer can still be subject to discrimination charges for terminating him for job abandonment.”

Maternity leaves that end in a no-show can be particularly problematic, sometimes involving both the FMLA and the ADA. Questions of what constitutes family leave or disability leave can become extremely complicated, and the onus is on the employer to sort it all out.

Take the case of Dintino v. Doubletree Hotels Corp., No. Civ. A., 96-7772, 1997 (E.D. Pa., 1997). Audrey Dintino, Doubletree’s manager of telemarketing, notified management that she would be taking a maternity leave of absence from July 15, 1994, through Oct. 17, 1994. But, in late June, pregnancy complications required her to take an immediate medical leave of absence. Believing her absence was now classified under unpaid medical leave/disability, she informed her employer that she would take her 12 weeks of FMLA leave after the expiration of the medical leave. She restated this again in a letter dated Oct. 7. She received no response and was discharged by Doubletree on Nov. 28 for failing to return to work.

Dintino sued and won. The court claimed, “In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, based on information provided by the employee.” In essence, the burden is on the employer to notify the employee in writing as to how the absence will be qualified.

Abandonment--or Protected Concerted Activity?

Sometimes, job abandonment takes the form of a staff walkout--thus triggering labor relations considerations. In the case of Bob Evans Farms Inc. v. National Labor Relations Board (NLRB) (1998 US App. LEXIS 31486, 160 LRRM (BNA) 2024 (7th Cir. 1998)), shift workers walked off their restaurant jobs to protest the firing of a popular manager. A few days later, all but one employee agreed to return to work unconditionally, but the employer refused, citing job abandonment. The supervisor subsequently filed an unfair labor practice charge with the NLRB, which concluded that the walkout was a protected action be-cause it related to the employees’ terms and conditions of employment. The NLRB essentially ruled that the employees have an unlimited right to engage in peaceful strike activity.

The U.S. Court of Appeals for the 7th Circuit agreed to an extent but ruled in favor of the employer. “These workers really crippled the employer’s operations, and the court said that was unreasonable, and therefore not protected,” says Kult. Although the employer prevailed in the case, it was long and costly. The lesson for HR professionals, believes Kult, is to “proceed with caution on job abandonment. It can take two to three years to try a case, and if you lose, you can be looking at paying years of back wages—with interest.” Don’t assume you can terminate an employee for abandonment without exploring the labor issues. “Labor relations considerations are too often overlooked when the workplace is not a union environment,” he adds.

Keep Policies Simple, Direct

But in the vast majority of cases, a no-show employee is truly surrendering the job. So what are the employer’s obligations?

Certainly HR needs to investigate the whereabouts of the employee to rule out a medical cause for the absence. In some cases, an employer searching for an AWOL employee may be the first to discover that the person is missing and may be in a life-threatening situation.

Once satisfied that the job has been abandoned, employers should create documentation for the employee’s file showing that a change in status has occurred and on what date. Hoffman also recommends sending a registered letter to the employee identifying the action the company has taken and why. “The return receipt from the letter goes into the file, and there can be no dispute that the employee was informed. But usually you won’t get a direct response.” He also suggests including notes from the supervisor or others detailing attempts to contact the missing person.

But don’t make the mistake of developing too-detailed, too-specific policies about job abandonment, experts advise. “Most of the policies I’ve seen are written very badly, and it would take an inordinate amount of time to figure them out,” says Winning. He recommends putting into employee handbooks some brief language about job abandonment in the section on terminations and resignations. “I slip it in on one page and one page only.”

A simple approach makes it easier to be consistent with all employees, he explains. “The biggest problem with job abandonment policies is a lack of consistency, and that’s what leads to claims of discrimination.” The policies should be applied equally across the board, to both full-time and part time-employees, to both line workers and executives.

Hoffman also advises his clients to keep it simple. “I usually recommend putting some language in the attendance section of the employee handbook,” he says. “Something like, ‘Failure to report or call in to immediate supervisor for three consecutive work days will be called voluntary resignation or job abandonment.’”

You can be more aggressive with employees who are serving an initial probationary period, Hoffman noted. “You don’t have to wait the three days.”

For those employees who might be in a position to cry wrongful termination, Hoffman suggests leaving some wiggle room. “Even if you have someone who has fallen off the map for three days, but you can’t rule out a medical condition, send a registered letter. But consider tacking on a sentence such as, ‘If there is anything that would change our understanding of your absence, please contact us immediately so that we can re-evaluate your resignation as appropriate.’ You are building in your ‘out’ because you never know when you’re going to be challenged.”

Leaving the door unlocked is not appropriate in every case because you don’t want to give employees too much latitude, says Hoffman. “But 60 to 70 percent of the time I’ll have clients tack on that language as a safeguard.”

Prevention as Cure

The ultimate goal, believes Kult, is to discourage litigation by creating simple, clear policies that motivate employees to give the required notice before they quit. “We encourage our clients to create ‘voluntary quit’ policies that inform workers that if they don’t call or show up for three days, they will be considered to have quit. Where state law allows, we also try to link the policy to paid time off and vacation policies. For example, if the employee fails to give a certain number of days notice, the employer won’t pay accrued time off.” He added that the policies he recommends require employees to work every day of the notice period, or no paid time off is allowed.

Employers who attempt to withhold a final paycheck from a job truant are playing with fire, though. In most states this practice is illegal. Even in cases where an employee holds expensive company property—like a laptop or cell phone—or owes the employer for a loan or paycheck advance, “don’t assume you can use the paycheck for leverage,” says Kult. States have differing wage and payment laws, and there are varying processes for recovering property or money. “Our response would be to contact the employee right away, let them know we expect the property back, and what the penalties might be. The employer can sue in small claims court or get law enforcement involved.” He recommends drawing up and having employees sign a separate agreement when property or money is loaned. This is often required by state law and keeps the matter out of the employment equation.

In the end, whether a company has a written statement or policy about job abandonment has much to do with company culture, believes Hoffman. “You can have enforceable policies even if they’re not in writing. But this can cause HR people to be uneasy, wondering if they have consistently applied the rules.”

Some companies may feel they do not need such a policy. “I have some very paternalistic clients who will keep the job open forever,” says Winning. But he predicts a shift toward more structure in some of these companies. “Two years ago, if an employer hadn’t heard from a programmer in a few days, would they be terminating them? No, they would be calling the police and looking into the guy’s apartment windows.”

Times are changing, he assured, and companies need a simple plan in place to bring quick closure to walkaway workers.

Martha Frase-Blunt is a freelance writer based in Alexandria, Va.


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