The Adjudication of Attendance

By on August 14, 2016 in Court Cases, Human Resources with 46 Comments

Out of office written on a card at the desk

It is a well-established fact that management has the vested right to establish standards for requiring employee attendance at work, and for holding employees accountable by the way of discipline if they are not regular and punctual for reporting for duty.

The Haine vs. Department of the Navy, 89 FMSR, August 9, 1989, decision affirmed that an agency is inherently entitled to require an employee to be present during scheduled work times, and an employee’s absence disrupts the efficiency of the service. Chronic absenteeism and tardiness can become a major problem in the workplace if left unchecked, and reigning in absences and tardiness is a major function of all first-line supervisors.

Within collective bargaining agreements it has been typically affirmed and anchored in the well known “Just Cause” for discipline, and this right is customarily rooted in the “managements rights” section of the contract.

To implement this right, arbitrators and judges typically have divided absenteeism into four general categories, with each representing a different type of absenteeism: absence of a short duration, AWOL, absence of a longer duration, and excessive absenteeism that is irregular and unpredictable.

Each of these require a different analysis as a cause for discipline, and a different penalty for discipline if necessary. There is not an arbitrator or judge who will sustain a management action if management has not followed its own procedures or has been inconsistent in the application of their attendance policies. Failure to follow-up on absenteeism or tardiness will only result in a significant loss of productivity, a loss of management respect where others will have to be responsible for their own work and that of others, and the potential for fraud where taxpayer dollars are being paid because the organization’s internal controls are not being followed.

The loss of actions before arbitrators and judges because of a lack of consistency should be expected. This latter point was driven home in the Woebcke vs. Department of Homeland Security, NY-0752-09-0128-I-1, May 6, 2010, where there was a Doppler shift in case law. This decision replaced the consistency of the deciding official with the consistency of discipline throughout the entire organization among ALL deciding officials for a like offense. (Now, if this standard is to be applied to all disciplinary/adverse actions, would it be unreasonable for agencies to expect that MSPB judges would follow the same consistency in deciding cases. Yeah, that is too much to ask now isn’t it!!)

The most common form of absenteeism encountered for which discipline is taken is absence of one to three days where leave procedures were not followed or the person is chronically tardy. For these situations, oral counseling is not worth the paper it is written on if the time, date, duration, and the nature of the discussion is not recorded.

When I was an HR Officer, I had one senior manager camp out in my office six times for the same tardiness issue by the same person. I finally had to tell her that she was wasting my time since we had gone over what she needed to do several times, and until she got engaged further discussion with me was superfluous.

She is not alone. Too often supervisors wink at the problem, or half-heartedly make an attempt to address it. When this occurs, absence can become more severe, under a theory that is known as the incremental escalation of wrongdoing.

Now, the focus of minor discipline becomes a discussion of suspension or even to discharge because the misbehavior has increased. Remember the Douglas Factors will always apply and generally, discharge is reserved for only the chronic offenders.

Supervisors and managers should never be afraid to initiate the appropriate action when warranted. Their fear commonly surrounds an apprehension that they will not be supported by senior management, it takes too much of my time away from my other duties, they may lose the case, or they may lose the friendship and productivity of an employee who has been part of the unit for a period of time.

Below are examples from case law intended to dispel any notion that disciplinary/adverse actions are not being sustained by adjudicators. These are just a very small sample where HR and counsel can research Cyberfeds or Lexis/Nexis to come up with a more comprehensive list of actions that have been sustained, and can serve as a model to follow.

Failure to Request Leave

The employee fails to request leave of any kind, and does not report for duty as expected. In Valenzuela vs. Department of the Army, 107 LRP 73370, 107 MSPR, December 21, 2007, the agency removed the employee for 1) absence without leave for 137.5 hours and failure to follow established leave procedures, and 2) providing false or misleading information that was inconsistent with the medical documentation. The Board found the agency proved the charges and upheld the removal.

Leaving the Worksite Without Permission

The employee reports to work but leaves the workplace without permission. In Westmorland vs. Department of Transportation, 91 FMSR 5477, August 9, 1991, the agency removed the employee because she left the workplace after being notified she was to have a drug test. Her removal for AWOL and refusal to take a drug test was affirmed.

Agencies must have adequate internal controls over the expenditure of public funds if it looks to have a clean opinion on its annual audit by an outside accounting firm under the Certified Financial Officers Act. In the case of 2014 MSPB 56 of Patrick G. Hollingsworth vs. Department of the Air Force, SF-0752-14-01 99-1-1, July 23, 2014, the agency’s removal action was overturned because they could not definitively prove that Mr. Hollingsworth was chronically tardy or AWOL. In this case, the administrative judge implicitly analogized the charge of tardiness with a charge of AWOL. He found that to prove a charge of tardiness, the agency must show that: (1) the employee was scheduled for duty; (2) the employee was late for duty for the time charged; and (3) either the employee’s absence was not authorized or his request for leave was properly denied.

In the opinion of this writer, this case is very instructive because in the modern era of compressed work schedules, flexible schedules and telework, you must have a mechanism to determine when your employees are expected to be on duty, whether they are indeed on duty, was leave requested in advance, and was the leave approved/disapproved.

Refusal to Return to Work for Non-medical Reasons

The case of Curtis v. Department of Commerce, 103 FMSR, 279, (03-3382 Fed Cir.), June 5 2003, the employee’s removal for AWOL was sustained after he failed to return to duty from a period of approved leave.

Incarceration

Larry vs. U.S. Postal Service, 102 LRP 30260, June 10, 1999, events surrounding a stop for speeding escalated to an arrest and subsequent conviction leading to a one-year jail sentence. If a person calls in and requests leave that was un-anticipated, a supervisor has every right to ask why. When the reason is either not given, not supported, or it is made known that the person is in jail and it is uncertain when they will be able to return to duty, a charge of AWOL is completely appropriate. In this case the person’s removal was sustained for AWOL.

Failure to Attend Training

Training is an assignment of work for which the employee is expected to attend the training. In Sherlock vs. General Services Administration, 107 FMSR 99, 103 MSPR 352, September 15 2006, GSA removed the employee for AWOL, failure to follow leave procedures, and failure to attend training without informing her supervisor. Initially the ALJ mitigated the penalty of removal to a 90-day suspension, but upon appeal to the full Board, the penalty of removal was deemed reasonable and reinstated.

The above are only vignettes of many cases sustaining management’s actions against people who think they are above the rest, and do whatever they want. The basic principle in the workplace is that you are hired to work 80 hours in a pay period, expected to abide by the agency’s rules, perform your duties to the very best of your abilities, and in exchange the agency will pay you an agreed-to sum of money every two weeks. It is when this equilibrium is disturbed, prolonged or irregular attendance, rules are not followed, and/or behavior modification is not evident, then disciplinary action up to and including removal may occur. Done properly, these actions will be upheld, and tranquility and productivity will be maintained or restored.

In a later article, I will address excessive absenteeism and some of the case law on these actions.

© 2016 Robert Dietrich. All rights reserved. This article may not be reproduced without express written consent from Robert Dietrich.

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About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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