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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11266
Experience:  Significant experience in all areas of employment law.
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I just wanted to know if my employer changes the attendance

Customer Question

Hello, I just wanted to know if my employer changes the attendance policy does that mean that my current attendance record will be wiped out to 0.
JA: OK. The Employment Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: No I have not
JA: Please tell me everything you can about this issue so the Employment Lawyer can help you best. Please give me a bit more information, so we can help you best.
Customer: In October our employer gave us a new attendance policy that stated after the 10th occurrence it is grounds for termination and our attendance record started back at 0. They were not consistent with the policy and as of February they have begun to have reviews with us regarding our attendance policy. They also stated that if you use sick time it will not count as an occurrence. As of today that stated it has to be a full 8 hours of sick time to not count as a point against our attendance. This has all been word of mouth. They are employees with 18 and 17 occurrences and none have been terminated. They also state that they will be putting a new policy (yet again) within a few weekd
JA: Is there anything else important you think the Employment Lawyer should know?
Customer: Not at this time that I can think of immediately
JA: OK. Got it. I'm sending you to a secure page on JustAnswer where you can place your fully refundable $5 deposit (plus $13 after the Employment Lawyer responds). While you're filling out that form, I'll tell the Employment Lawyer about your situation and connect you two.
Submitted: 9 months ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 9 months ago.

Thank you for using JustAnswer.

I'm sorry to hear about your situation. Can you tell me what state this is in? Are you part of a union, or do you have a written contract in place that would prohibit this?

Customer: replied 9 months ago.
This is in California. This is not a union and the contract was signed in October however they have not followed through
Expert:  ScottyMacEsq replied 9 months ago.

I see. California is a separate legal category, which I am not admitted to. I have to opt out to allow another expert to assist you further. Please be patient and another expert will assist you shortly.

Customer: replied 9 months ago.
My employer is stating that I have 18 occurrences however, after the 10th occurrence you were supposed to be terminated. They also stated that if you use sick time, at 1-2 hours that it would not count as a point against your attendance. I have been verbally warned that after one more missed day I will be terminated (as well as other employees) but again today 3/7 we were verbally told that it has to be a full 8 hours to not count as a point against us
Expert:  Patrick, Esq. replied 9 months ago.

Hello, different attorney here. I am happy to address your concerns.

In California, the default rule is that employment is "at will" absent an express agreement to the contrary. At will employment can be terminated for any reason not amounting to discrimination on the basis of a legally protected trait (race, religion, gender, etc.) or retaliation for engaging in certain forms of legally protected conduct (filing a wage claim, taking FMLA leave, etc.). It doesn't matter whether the basis for termination is fair, reasonable or even true.

Since employment is "at will," absent an agreement stating otherwise, employers are not required to implement fair termination policies, or to even enforce their termination policies at all. Such policies can be changed at any time and are not legally required to even make sense since employees can be terminated for literally no reason at all.

So really, it is not the employer's attendance policy that controls. You cannot argue that a specific version of your employer's policy must apply, or that the policy should be enforceable as interpreted in a specific way and therefore somehow bar your employer from terminating you. Ultimately, they can terminate without regard to what's fair or without any reason at all, and all you can do is attempt to reason with them. Courts interpret absence policies and mere guidelines that employers offer to give employees an idea of what to expect, but nothing more.

There are a couple statutory exceptions to the general rule articulated above. The first is for employees who are missing work due to a serious health condition. Specifically, if the employer has 50 or more employees and the employee has been working for at least a year, the Family Medical Leave Act would entitle the employee to take up to 12 weeks of unpaid but protected job leave. Regardless of the employer's attendance policy, they MUST allow up to 12 weeks of protected job leave for the employee to deal with their serious health condition. Their policy does not override the FMLA.

Similar to the FMLA, the Fair Employment & Housing Act requires employers to "reasonably accommodate" disabled employees. Reasonable accommodations can include allowing a disabled employee to take time off work. So again, like the FMLA, the employer's attendance policy is not what controls. What controls is the law, and the law requires employers to allow disabled employees to take time off to the extent that such time off is reasonable and does not impose undue hardship on the business. Regardless of the employer's attendance policy, the employer may be required to allow additional time off if reasonable for them to do so.

Barring application of these two statutes, though, employers are free to enforce attendance policies however they like, due to the principle of at will employment.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

Customer: replied 9 months ago.
Thank you for your response. So you are stating that since it is an 'at-will' contract they can fire us whenever they want too regarding our attendance even if they-themselves are not following the policy agreement that they had us sign?
Expert:  Patrick, Esq. replied 9 months ago.

Yes, that is essentially correct, barring the exceptions I noted above concerning the FMLA and FEHA. Just as you can terminate the employment relationship at any time, so can your employer. Neither you nor they need a reason, nor does fairness come into play. This is the very essence of what it means to have an at will employment relationship.

Please let me know if there is anything else I can clarify or do to assist you.

Kind regards,

Patrick

Customer: replied 9 months ago.
That is all. Thank you for your assistance.
Expert:  Patrick, Esq. replied 9 months ago.

You are very welcome. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Very best wishes.