Strictly Business

Wednesday, Apr 24 2013 12:00 PM

ROBIN PAGGI: Hold employees accountable for being late

BY ROBIN PAGGI Contributing columnist

One of the biggest pet peeves of employers is chronic tardiness, according to CareerBuilder.com. That's not surprising since one in six employees reported being late to work once a week or more in a new CareerBuilder survey. What do tardy employees attribute their tardiness to? Traffic is the No. 1 excuse, followed by lack of sleep, kids and bad weather. I would add another reason to the list -- not being held accountable for being late by their employer or supervisor.

In her article, "How do employers contribute to tardiness?" Amanda McMullen says that, "Employees are more likely to be late when employers don't notice tardiness, don't take action against it, or fail to follow through with threats of disciplinary action."

This contribution to tardiness can be used against employers if they continuously allow it and then terminate or discipline employees for being late. Such is the case of McMillan v. City of New York, where a supervisor's condoning of late arrivals then subsequent disciplining for them turned into an Americans with Disabilities Act lawsuit.

According to court documents found at caselaw.findlaw.com, McMillan, a case manager for New York City's Human Resources Administration, took medication for schizophrenia that made him feel drowsy and sluggish in the morning. As a result, he was often late for work. The HRA allowed supervisors to approve late arrivals or to discipline employees for them. McMillan's late arrivals were either explicitly or tacitly approved over a 10-year period, and then his supervisor determined that she "wouldn't be doing (her) job if (she) continued to approve a lateness every single day," so she stopped approving them.

McMillan requested a later start time as an accommodation to his disability, which the HRA denied because there would be no supervisor on duty when McMillan finished his shift. After subsequent late arrivals, McMillan was fined eight days' pay, charged with "misconduct and/or incompetence," and suspended for 30 days without pay. McMillan then sued alleging violations of the ADA, among other things.

The district court ruled in the HRA's favor because the agency said that arriving to work within a certain time period was an essential job duty, which McMillan failed to perform. However, the Court of Appeals overturned the lower court's ruling because the HRA's approval of his late arrivals over a 10-year period indicated that arriving to work at a specific time was not really an essential function of McMillan's job.

As an ADA case, the HRA blew it because:

* It failed to recognize, analyze and document the late arrivals as an accommodation. Instead, it looked like the supervisor was just looking the other way when it came to McMillan's tardiness.

* When McMillan later requested to arrive late as an accommodation, the HRA alleged that timely arrival was an "essential job duty," which was ludicrous because he had been late every day for 10 years.

In other words, if an employer continuously bends a rule, that employer may be precluded from citing that rule as the reason an accommodation can't be provided.

Aside from the ADA issue, this case demonstrates that employers who consistently allow employees to be late are essentially communicating that being on time is not an essential part of the job. If being on time is a requirement, hold employees accountable when they are not.

-- Robin Paggi is the training coordinator at Worklogic HR Legal Solutions. Reach her at rpaggi@worklogiclegal.com. These are her opinions, not necessarily those of The Californian.

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