Late To Work? These Excuses Could Get You Fired
Michelle Edwards says she called in one hour late to work, telling her boss she needed to care for her mother, recovering from surgery. But the boss' response was that she was already fired for "no call, no show," according to the lawsuit Edwards filed against her employer, Advanced Temporaries Inc.
Which raises the question: Can you legally be fired for coming to work late? Even if you're only one hour late? The answer is yes, of course. You are probably an at-will employee (unless you live in Montana or have a contract saying otherwise), which means you can be fired for any reason or no reason at all. You can be fired because your boss was in a bad mood that day, so you can definitely be fired for coming in late.
There are, however, some laws that protect you from being fired for coming in late under some limited circumstances. These five laws might protect you if you have an emergency that requires you to come to work late:
Fair Labor Standards Act:
If you are classified as an "exempt" employee, your employer is supposed to pay you for a full day even if you are late. If the employer treats you like an hourly employee, docking you (or firing you) if you are late, you might be misclassified under the Fair Labor Standards Act. That means your employer could be liable for all the time they docked you, plus all your overtime worked, plus liquidated damages that double the amount they owe, plus your attorney's fees and costs. Even worse, they can be forced to pay for any other employees who were misclassified.
Americans With Disabilities Act:
If you are disabled or have a chronic medical condition that is disabling when it is active, you might be covered under the Americans With Disabilities Act. This law says your employer must grant a reasonable accommodation that allows you to do your job with your disability. You might be able to request a reasonable accommodation to come in later when you need to have a medical appointment, if your chronic condition kicks in, or if you suffer side effects when your doctor prescribes new medications.
Family and Medical Leave:
If your company has 50 or more employees within a 75 mile radius, you've worked at least a year, and you've worked at least 1,250 hours in the last 12 months, you may be covered under the Family and Medical Leave Act. This law gives you up to 12 weeks of continuous or intermittent leave to deal with a serious medical condition of an immediate family member or you. If an immediate family member or you need regular doctor's appointments for a medical condition, you can apply for intermittent leave (but you have to apply in advance, as soon as you know about the need for the appointments). If an immediate family member or you have an emergency relating to a serious medical condition, you may be covered even if you haven't applied for leave in advance. In that case, you need to call in ASAP, and fill out the FMLA paperwork as soon as you can.
Domestic violence leave:
If you need to come in late due to a medical emergency cause by domestic violence, or if you need to apply for an emergency injunction or seek police assistance relating to domestic violence, at least 16 states have laws or local ordinances that protect you from being fired. The legal requirements vary from state to state (or municipality if there's a local ordinance), so you should talk to your lawyer or your victim's advocate to find out your rights and responsibilities under these laws.
Testifying under subpoena:
Some states have laws that protect you from being fired if you need to miss or be late for work due to being subpoenaed to testify at a trial or deposition. Sometimes, if you're subpoenaed for a trial, you'll be on call and might not know until the last minute that you'll be called that day.
What Isn't Covered?
Most other common excuses for lateness aren't protected under any law. You probably have no law that will save you from being fired if you use these old chestnuts:
Your car broke down.
Sorry. No legal protection. Take public transportation or a cab if you have to. Just get to work. It may cost you some money, but it's cheaper than getting fired.
You have a case of "wine flu."
Employers know that workers sometimes are hung over from too much partying, particularly on Monday morning. You'll find that many employers keep track of Monday absences and lateness in particular. No employer is going to excuse you for having a hangover.
Teacher conference ran late.
Many schools aren't accommodating to working parents. Teachers sometimes demand conferences when it works for them -- during the daytime -- and sometimes those conferences run late. If your boss isn't understanding, you can be fired. Try to schedule those conferences after work, at lunch, or on your day off if you can.
You had to go to jury duty.
Get real. You know you got your notice weeks in advance. While you can't be fired for missing work for jury duty, you can absolutely be fired if you don't bother to tell your company about it until after you show up late the day you had to report for jury duty. You should have told them as soon as you got the notice. If you get excused from jury duty early, you have to let your boss know and come in to work if they want you to. It's not a vacation day.
If you do have an excused absence that's legally protected, you still have some responsibilities.
Even if there's a law protecting you, you're not home free. You have responsibilities to your employer whether or not you're legally protected. Make sure that you jump through these five hoops so that you don't get fired for being late:
Let your employer know as soon as you can about your need to be late. If you have a doctor's appointment, for instance, you'll know in advance. If you are subpoenaed, let the employer know when you're on call and that you might be called at the last minute. If you have a medical emergency, call before you head to the doctor if you can, or as soon as practical. If you're so sick that you can't call, make sure a family member calls. Then call personally as soon as you can.
Call the right person. Your handbook or company policy might require you to call a specific person if you're going to be late. Don't leave a message with a co-worker or rely on leaving a voice mail if you are required to speak to your supervisor or human resources department. If you can't reach the person directly, follow up with an email, text message or a follow-up phone call. Make sure that the person acknowledges that they know you are going to be late. Don't be accused of a no-show no-call.
Confirm in writing. Even if you confirm by phone, follow up with a text, email or fax. Make sure you have proof that you called. If your supervisor is unscrupulous, they might deny that you called.
Get a doctor's note. Family and Medical Leave and disability discrimination laws may require you to have medical certification. For FMLA, your doctor needs to fill in the forms that your employer gives you. Doctors sometimes punt on this and don't fill them out, don't fill them out completely, or give the wrong information. Before you turn in the forms, make sure that the information is correct and complete. If you need a doctor's note each time that you have a doctor's appointment for intermittent leave or for a disability, make sure that you get it before you leave the doctor's office.
Every minute counts. Don't be one of those people who come in five or 10, or even one minute late once or twice a week. It may seem petty to you, but your boss has to deal with other employees as well. How hard is it to wake up a few minutes or an hour earlier to make sure you get to work on time? If they let you come in one minute late, then the employee who sits next to you will want to come in five minutes late. Then another will want to come in 10 minutes late. The next person will think an hour is reasonable. It has to stop somewhere. Your boss can stop it by firing you.
Don't give them an excuse.
Confused? Don't forget that you can comment below about this article or email me, care of AOL Jobs to ask your general questions about your discrimination, harassment, Family and Medical Leave, employment contracts and other employment law issues.
Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase.Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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