Privacy, Business and Law

Keeping track of employee attendance can be an administrative nightmare. The problem is particularly acute when employees work off-site, and when a company has multiple, small offices. Larger companies can invest in any one of a number of software packages that are designed to account for employee attendance, and will be able to assign someone to input and monitor the information. For emerging growth companies, it is much easier not to police time off, especially when everyone works long hours. “We’ll buy the software next year, when we’re bigger,” is a common reaction to the problem.

In a simpler world, the honor system would work well. Unfortunately, even small employers now are burdened with several levels of statutory obligations relating to time off for employees. Companies with 50 or more employers working within a 75-mile radius are covered by the federal Family and Medical Leave Act, under which employees are entitled to up to 12 weeks of unpaid leave in any one-year period for their own illness, or the illness of a spouse, child or parent, or for pregnancy or the birth or adoption of a child. Covered employers must guarantee that employees taking FMLA leave will be able to return to the same or a comparable job. Failure to adopt a FMLA policy, and to designate a leave as FMLA leave when it is for one of the enumerated reasons could lead to employees getting indefinite leaves.

Employers also have responsibilities under the federal Americans With Disabilities Act to give employees with physical or mental disabilities time off as a reasonable accommodation. Unlike the FMLA, the ADA is not specific about how much time off must be given. Employers who allow disabled employees to take time off, but do not document the leave of absence may be in the frustrating position of being unable to prove, in defense of an ADA claim, that it offered a generous accommodation.

As an example, an employee with diabetes takes two hours off every afternoon for treatment that he says he needs. His supervisor allows the employee to take the time off without a complaint, but doesn’t document these afternoon breaks. The employee later requests that he be given every Friday off to accommodate his condition. The supervisor tells him that they can’t afford to have him work only four days per week. The employee gets a lawyer who claims that the company is refusing to offer a reasonable accommodation. The company is unable to prove that it previously allowed the afternoon breaks, or how many afternoons the employee took off, or how long he was gone on each occasion. The employee denies he was given any breaks other than his lunch breaks. The company ends up looking hard-hearted in defending the ADA claim when it had actually been very generous.

Another area of concern is vacations. If a company has a policy of paying departing employees their accrued, unused vacation, and it has not kept track of how many days off employees have taken, it is likely the company will end up paying departing employees for vacation days that were already taken.
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8. Performance evaluations? We don’t need no stinkin’ performance evaluations!
There are few tasks more irritating to managers than writing up performance evaluations. The range of excuses received by Human Resources departments is limitless. Many emerging growth companies, concentrating on avoiding bureaucracy and creating as little paper as possible, dispense with formal performance evaluations, or written warnings for poor performance or misconduct. The problem with this attitude is that the power of paper is enormous in the legal world. Judges and juries who will ignore credible testimony of company witnesses about a plaintiff’s poor performance will often accept as gospel truth a written memo saying the same thing.

In employment cases, the battle is very often fought over whether the employer had a legitimate business reason for whatever action is at issue, e.g., a termination, demotion, or failure to promote. Memoranda, performance evaluations, or written warnings that were prepared at the time the events occurred by the supervisor on the scene are absolutely invaluable in proving that the company acted in good faith, without discriminatory intent. Not only do these documents carry a lot of weight in court, they are extremely helpful to a company trying to piece together events that often occurred years before a case goes to trial.

This does not mean that hundreds of forms must be created for every situation. Supervisors and managers should be trained to discuss performance problems with employees, and to document those discussions in some form, but the documentation can be informal, e.g., in the form of e-mail messages, or handwritten notes.

by Dan Weisberg “10 Mistakes Technology Companies Make With Employees”