Time & Attendance
By Jon Hyman
Dec. 10, 2013
Today’s blog post is a multiple-choice quiz.
An employee takes a day off work to attend his own deposition, which you are taking in defense of the employee’s discrimination lawsuit. Do you:
A. Charge the employee attendance disciplinary points for missing work to attend his deposition;
B. Permit the absence as unexcused with no points accumulated?
If you chose “A,” you might be liable for unlawfully retaliating against that employee, at least according to the court in Younger v. Ingersoll-Rand Co. (S.D. Ohio 12/3/13).
The attendance points at issue were assessed to discipline Younger for missing work to attend a deposition scheduled and noticed by the Defendant. Defendant’s scheduling of Younger’s deposition for a date and time when Younger also was scheduled to be at work at the very least placed Younger in a Catch 22 in which he risked discipline from the Court in the form of sanctions if he chose to skip the deposition to attend work or risked discipline in relation to his employment for missing work to attend the deposition.
Under the Supreme Court’s generous adverse-action standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, the court concluded that under the unique facts of this case, the assessment of disciplinary attendance points, albeit points that were later removed and resulted in no ultimate penalty, could constitute an adverse action.
Retaliation is a low standard for employees to meet. This case illustrates how carefully employers must treat it when dealing with an employee who engaged in protected activity.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or email@example.com. You can also follow Hyman on Twitter at @jonhyman.
Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.
ComplianceMinimum Wage by State in 2023 – All You Need to Know
Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1. Thr...
federal law, minimum wage, pay rates, state law, wage law compliance
HR AdministrationIs your employee attendance policy and procedure fit for purpose?
Summary: Lateness and absenteeism are early warning signs of a deteriorating attendance policy. — More ...
compliance, HR technology, human resources
HR AdministrationClawback provisions: A safety net against employee fraud losses
Summary Clawback provisions are usually included as clauses in employee contracts and are used to recou...
clawback provisions, human resources, policy