# Need help as an employer.



## SDKath (Sep 3, 2011)

I have a situation at work that is driving me crazy and I thought I would ask for any advice/help.  I own a small business with only 4 employees.  One of the employees has shown up for work late 2x last week.  He apologized and said it would never happen again.  Then last Friday, he never went to work.  I was at home and he was supposed to be at the office opening at 8:30.  I just assumed he was at work and at 9:30 I was totally surprised when he called me to say that he is not coming in and needs a 2 week leave for "an emergency."  The phone call was very short and he didn't give me any explanation, just didn't show up and then wanted this 2 week leave.  He's only been with our company for slightly less than 90 days.

I hemmed and hawd on the phone as I have never been in this situation before.  I told him I couldn't promise anything and we left it at that.  I have not heard from him since.  He is the ONLY person who I have at the company running the front office so I had to go in myself to answer phones Friday.  I made a number of phone calls to my HR advisors (a company who we contract with to do our paychecks and such).  They told me I could theoretically terminate him but that he can come back and sue me for discrimination.  

So today I go to my hairdresser to get my hair done.  Just out of coincidence it is the salon owner who does my hair (this is a chain salon, Carlton Aveda).  I am chatting with her about this situation and she tells me, "oh we have receptionists who don't come to work one day and the next day they show up as if nothing happened.  We just fire them on the spot."

It now has me thinking.  Can I just let this guy go?  His 2 week leave (which he offered no explanation for , just took after not showing up), is over next Friday. I am hoping he just doesn't show up for work and I can let him go for abandonment of his job.  In the meantime, I have 2 part time temp workers filling in, who we have invested a LOT of time training in front office work.  The office has been pretty chaotic all week with this guy vanishing and me having noone to replace him at a moment's notice.  I want to hire the temp ladies since they both seem much more organized and responsible than this guy.

I am just not sure what I can and can't do.  I surely don't want to be sued! I would appreciate any insight.  I may have to even contact a lawyer, although I would hate to do that since it's so much $$$.

Katherine


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## Rose Pink (Sep 3, 2011)

Why could he sue you for discrimination?  You can't just take two weeks off after only being hired three months ago, especially with no explanation.


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## vacationhopeful (Sep 3, 2011)

If you are worried about a lawsuit, HIRE a lawyer. Employment law has different terms based on the number of employees you employ and what their status is (FT or PT) AND the state your business is located in.

I think it is also time you write up a simple "Terms of Employment" with a conditions stating Reasons of Termination and Status of Employment. I would also think you need to document and give written of these minor Notice of Violations (remember, notices must be given to everyone).

If you want to reseach on the web, search "Emergency Family Leave Act". I don't think he can just *SAY* I am taking the next 2 weeks off.

I personally would just send a Certified Letter of termination and CHANGE the locks on your business. If you still own him money, tell him to notify you when he will be picking up his personal office items, return the keys for his final check in the next 7 days - or you will dispose of any personal items and mail him his final check. If he shows up unannouced, call the police  ...  you gave him written notice to STAY AWAY.

As to his termination, you can just state unreliable attentance - cite the dates & times of late arrives and his total nonappearance for the past week. I personally believe he has to provide MORE info than, "I am taking a two week leave". 

Sounds like he is trying out a new job for 2 weeks - interviews before and a start immediately offer.


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## vacationhopeful (Sep 3, 2011)

*My experence on missing worker ...*

One of my large employers had a employee who was "sick" for 3+ weeks. Human Resources was do all the "proper" help the sick employee; my department boss (with 75 employees) was just plain pissed off; employee's wife was citing STRESS and no, he can't talk on the phone because his doctor told him not to (remember, stress). He was a really poor performer and told at last review, he needed to improve drastically to AVOID termination.

I was called into department boss's office and asked if I could give directions to his house to 2 strangers (rural location). I was told NOT to mention anything to anyone else in the office.   

Things got real weird 2 mornings later. The 2 strangers were officiers in the company's corporate security division. They went at 5:00AM and staked out his house. They followed his friend's car (yes, he was in a carpool) for an hour to his NEW job. Legal contacted the other companies HR department (who then talked to their Legal Department) --- both companies FIRED his stinking butt immediately. Former employee was personally threaten everyone and gonna sue everyone. I was dispatched for 3 days "to gossip" to every person who worked in my department or who had had contact with him where I worked. Bosses could not say a word; water cooler gossip was from the person who sat in the cubical next to him; it was all hearsay.

By the way, the other company was paying him OVER twice as much as my employer. Greedy and STUPID. And that info I was not to gossip about.

Perhaps, you have friends who could do a stakeout for you? And I would do a drive by this holiday weekend -- he might be on vacation for these weeks.


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## Big Matt (Sep 3, 2011)

My advice:

1) if he's an hourly employee just lay him off and replace him with someone else.  When he gets back just tell him that you don't need his services. If it was a salaried position, then you need to get some legal advice.  

2) in my experience, people who have somewhat low paying jobs who take two weeks off may be actually working in another job and seeing if they like it.  As hard as this is to believe, I've seen it several times.

3) Look for him in the county jail.  Many times people will get a DUI or something like that and serve a short time in jail for second offenses.  Who knows.

4) Work with your HR company to draft a corporate policy regarding leave, etc. and make every employee sign acknowledgment when they start work.  My company is only about 60 folks, but we have pretty good HR policies.  Believe me we've seen some weird stuff.


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## vacationhopeful (Sep 3, 2011)

Big Matt said:


> ...3) Look for him in the county jail.  Many times people will get a DUI or something like that and serve a short time in jail for second offenses.  Who knows...



How did I forget that one! :hysterical: 

He could be on probation/parole and got violated due to a bad drug test --- would explain his "late" appearances earlier. It is amazing what I learn from caller-id.


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## jerseygirl (Sep 3, 2011)

FMLA doesn't apply to Kath because she doesn't have 50 employees.  

Kath - I think you should consult with a good employment lawyer.  He/she is probably going to want to know what was said to this person about attendance policy when he was hired, when he was late and when he asked(?) for the two weeks off.  The lawyer can immediately advise you on this particular situation and, as advised above, come up with "terms of employment" for future use.  For example, if allowed under California law, you might be able to state that unpaid leave may be granted for emergencies after one year of employment ... or, tardiness will be grounds for immediate termination during the first six months of employment. 

The good news is that he probably will not show up on day eleven and - as a worst case scenario - you will probably be able to fire him for job abandonment, via certified mail, on that day (as suggested above).  I also agree with the suggestion above to change the locks.

Good luck!


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## vacationhopeful (Sep 3, 2011)

jerseygirl said:


> ...The good news is that he probably will not show up on day eleven and - as a worst case scenario - you will probably be able to fire him for job abandonment, via certified mail, on that day (as suggested above).  I also agree with the suggestion above to change the locks.
> 
> Good luck!



*Esp since DAY 11 is a FRIDAY.*

I would already have that letter written out and delivered to the post office 15 minutes after his start time.  

And I would consider changing the locks immediately. Just remember to be at the office before start time on Day 11. You do not want to be accused of locking him out (and if he shows up, you can decide if you want to be letting him in for the remainder of his employment by NOT giving him the new key). As this is a Holiday Weekend, it would be a shame if all you office equipment disappearred while he had an bunch of his friends as alibili complete with pictures 100 miles from your office.

Yes, I have had to change locks because of former employees. Yes, they do come back and steal stuff - including customer records and other important info about your company (some to start their own companies and steal/sell your good customers).


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## ronparise (Sep 3, 2011)

Lots of good advice here on why you should and how you can get rid of this guy, but I note some reluctance to do that on your part. Maybe you started to like him, maybe you dont want to go through the hiring process all over again. Maybe you think the devil you know is better than the devil you dont.  And maybe its just too much a pain in the neck to train someone new.

I dont know what reasons you might have to want to keep him, but if you do, figure out whats going on in his life that he needs 2 weeks. if you feel its legit (and wont happen too often again in the future)...forgive and forget, if not let him go.

I would also consider the effect it might have on the other employees..You might have to deal with 2 week vacations every month.

As a side note, (from the perspective of an employee) (and please ignore this if Im on the wrong track).  In my 50 years in the workforce, I have worked on my own, for small firms and large organizations. In my experience the worst kind of place to work for is a small company. The owner expects the employees to have the same loyalty and devotion as he does, but without the potential reward.  Unless you are offering profit sharing and a strong benefit package, including a living wage, a meaningful retirement plan and health care, you will never get the kind of employee you want. We employees will always be looking for something better....It sounds like your guy thinks he found it after just 90 days. or maybe he really does have an emergency he needs to deal with.


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## glypnirsgirl (Sep 3, 2011)

Hi Kath - I have a small business with 7 employees - so about the same size as yours. However, Texas is an "employment at will" state so the laws are very different. 

I do not mean this to be legal advice because I know that California's employment laws are almost certainly different from ours. 

My concern about you keeping this guy is the effect that it might have on other employees. I have found that any time that I make exceptions for one employee, it makes my other, more dependable employees, angry. Then they in turn become more unreliable. It become a downward spiral. Because of the effect on other employees, I would take affirmative steps to get rid of him now.

And change the locks. NOW. 

Send his termination letter for job abandonment NOW. He has not earned 2 weeks off. It does not sound like you gave him permission nor promised him his job when he returned. 

I change the locks every time I have one of these incidents. My concern is that he has already stolen from you. He is giving you the chance to discover the theft and if you do not do so while he is gone, he will take advantage of that in the future.

Good luck.

elaine


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## pedro47 (Sep 3, 2011)

gleipnirs girl said:


> Hi Kath - I have a small business with 7 employees - so about the same size as yours. However, Texas is an "employment at will" state so the laws are very different.
> 
> I do not mean this to be legal advice because I know that California's employment laws are almost certainly different from ours.
> 
> ...



Good advice: May I suggest also, you document everything in writing time missed, the number of time this person was late reporting to work and the total time that this person has abandon their job and send a copy to this person via certify letter.

Terminating this employee from your place of business.

PS: one copy to the employee & one copy in your personal file.

Good luck.


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## Ken555 (Sep 3, 2011)

Kath,

Get a lawyer. You should have one anyway whom you can call with misc questions throughout the year. It's a valuable addition to your business advisors and essential when you hit a problem needing a fast solution. Ask around and get referrals. 

I suspect this is a simple solution, given that it's a new employee. But, as others have already advised, I'd ask a lawyer first.

In future, I suggest having a probationary period of employment where you may terminate at will. I believe this is still permitted in California. In this manner, you can have the first three months (or some other time period) to determine if the new hire is a good fit for your business. And if not, it's not complicated to terminate and move on. The other would be to use an outsourced agency to provide the staff on a contract basis...this provides you with ultimate flexibility, but will be more expensive than hiring direct. I use this, along with direct contractor relationships, for much of my staff (and it doesn't solve all problems but is an option).

Good luck.


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## vacationhopeful (Sep 3, 2011)

Ken555 said:


> ... The other would be to use an outsourced agency to provide the staff on a contract basis...this provides you with ultimate flexibility, but will be more expensive than hiring direct. I use this, along with direct contractor relationships, for much of my staff (and it doesn't solve all problems but is an option).
> 
> Good luck.



The temporary-to-hire agency model has been around for years here. Most firms/warehouses do not accept applications or hire directly anymore. It seems to be a minimum of 6 months or 12 months before an transition to becoming a direct employee happens at the warehouse level, but some personal work for years without a offer to going inhouse.


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## vckempson (Sep 3, 2011)

I'm a small business employer myself and wouldn't dare put up with that.  Fire him and fire hime now!.  No delay.   Anyone who doesn't come to work doesn't deserve a job.  Showing up is the absolute minimum to expect of an employee.  No show... No job.  What's the point in hiring a lawyer for this.  This is about as straight forward as you get.  Just document his firing in a letter sent to him by certified mail.  If he's stupid enough to sue you when he doesn't show up then, so be it.

BTW, what state are you in?


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## SDKath (Sep 3, 2011)

We are in CA and are an "at will" state.  My offer of employment letter states that I can let people go for no cause.  The reason I didn't is because my HR company strongly advised me not to just in case he turns around and sues me.  They gave me this crazy example of an employee who came in drunk to work.  The employer fired the person.  Next thing you know, the person sued the employer's company for discrimitation, saying that he was never given a chance to go to rehab and clean up.

I am shocked but in CA, most of the time, the rules side with the employee.  I don't want a lawsuit because it could cost me thousands of dollars just to justify that what I did was right.  So I am documenting everything like crazy.  

To make things more interesting, I received today in the mail an IRS notice for mandatory withholding of his salary (25% per payperiod) for his failure to pay his DMV registration fee of $285!

So IF he does come back, now I have to NOT pay him fully in order to comply with this IRS mandate!   

I just hope he doesn't come back or call me next weekend.  I feel like in that case I can just say he "abandoned" his job and terminate him then with really no recourse on his part.  

I like all the suggestions above (yes he is per hour employee) and I will most definitely rekey AND have a letter ready for him IF he does show up.  I called a locksmith and they can't do it this weekend so I guess I will call the alarm company and tell them that we have NO ONE who should be in the office this weekend.  I am kinda freaked.

Katherine


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## Rose Pink (Sep 3, 2011)

Are you an employer or a babysitter?  Good grief.  I had no idea employers had to go through all this.  Condolences and best wishes for a positive outcome for you.  I hope he never shows up at your door again.


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## isisdave (Sep 3, 2011)

You know, if he didn't tell you what the "emergency" was (BTW, why didn't you ask?), I doubt he'd be very successful suing you for anything.  And since you didn't actually grant him the leave, according to your first post, he is essentially AWOL.

In fact, if he DOES come back and you  accept his return, you may be in worse position than if you fire him now for abandonment.  If you take him back, even for a day, it might be construed that you HAD agreed to the leave.


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## vacationhopeful (Sep 3, 2011)

SDKath said:


> We are in CA and are an "at will" state.  My offer of employment letter states that I can let people go for no cause.  The reason I didn't is because my HR company strongly advised me not to just in case he turns around and sues me.  They gave me this crazy example of an employee who came in drunk to work.  The employer fired the person.  Next thing you know, the person sued the employer's company for discrimitation, saying that he was never given a chance to go to rehab and clean up. That is a disability - medical condition.
> 
> I am shocked but in CA, most of the time, the rules side with the employee.  I don't want a lawsuit because it could cost me thousands of dollars just to justify that what I did was right.  So I am documenting everything like crazy.
> 
> ...



My answers in BLUE above.

As for your HR company, they are NOT a legal beagle. Did they do a credit report and criminal background on him? I don't believe you can not hire due to a low credit score, but you certainly can decide he has poor judgement or lacks accounting skills, esp if he is handling your money. Then again, maybe you need to get your KEY employees bonded. Did they actually check his prior employment & references.

I was chatting with a key employee at my car dealership (key as he handles all the money for his DAD). He was telling me stories of the week - a job as a titling clerk who asked if he did a criminal background check as all her arrests involved non-financial issues (and she didn't live at her street address, but on a boat). And the applicant for body shop laborer who said he had to check with his parole officer (who vouched highly for him), but whom they fired because his actual body work stunk.


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## SDKath (Sep 3, 2011)

isisdave said:


> You know, if he didn't tell you what the "emergency" was (BTW, why didn't you ask?), I doubt he'd be very successful suing you for anything.  And since you didn't actually grant him the leave, according to your first post, he is essentially AWOL.
> 
> In fact, if he DOES come back and you  accept his return, you may be in worse position than if you fire him now for abandonment.  If you take him back, even for a day, it might be construed that you HAD agreed to the leave.



Very good points.  I didn't ask because I think I was so caught off guard that I didn't even think to!  I was at home and had just stepped out of the shower when my cel phone rang.  Given that he was supposed to be at work an hour before, I just couldn't believe that he was calling to say he is not coming in AND needed 2 weeks.  The call was very short.

Now I am afraid to ask.  My friend told me to jsut call him and talk to him and find out what is going on.  Frankly, at this point, I don't want to know!  The more BS excuses he gives me, the more he can turn around and throw it back in my face.  "I told her I was dying and she wouldn't listen, she just fired me!"  I can see him saying such nonsense.  So I figured the ball is in his court.

You are all correct, if he comes back, it is going to be a big problem for me, especially since I have 2 wonderful ladies who are now there and trained and waiting for an offer for more permanent employment.  The wait is killing me and the "what if" scenarios are not pretty.

Katherine


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## vacationhopeful (Sep 3, 2011)

isisdave said:


> ...In fact, if he DOES come back and you  accept his return, you may be in worse position than if you fire him now for abandonment.  If you take him back, even for a day, it might be construed that you HAD agreed to the leave.



That is highly likely. And you will have a tribe of unhappy employees ... the ones who show up for work everyday ontime.

I have for years run rental apartment buildings.* One bad apple of a tenant can have a ripple effect .... and the good apples easy move on. *


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## vacationhopeful (Sep 3, 2011)

The ball is in YOUR court. If your employment letter states he is an hourly at will employee and he abandon his job by NOT showing up at 8:30AM last Friday morning. At GREAT EXPENSE, you have lost business by YOU personally having to cover his job, hire and TRAIN new personnel and this was NOT the first time he was late.

You didn't ask what his emgerency was, because you didn't care. He had NOT come to work on time again; he abandoned the job. When he was late before, did you address that tardy behavior - by saying, you are to be a work at 8:30AM - no if, ands, or buts? Did you say, I can't tolerate you being here late, as the business opens at 8:30AM? 

I learned years ago - I am the boss. MY seizing control of situations is my job. 

I would just send out that JOB ABANDONMENT letter ASAP. Why are you waiting on pins and needles? Either he will sue you now or later ... sounds like you are much happier with the new people. Why suffer with a idiot who is jerking YOU around? 

PS You should NOT talk to him. Just like I don't talk to people who say they are going to sue me or who I might be suing for damages. "NO GOOD WILL COME OUT OF IT" - is my standard chant to myself.


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## teepeeca (Sep 3, 2011)

You have TWO (temp) people who are doing an excellent job for you,  One, or both, WANT to be hired !!!  Terminate the "gone" employee, and hire one or both of the "temps".

If the (soon to be "ex") employee had cared about you, your company, and his job, he would have called you, or had family and/or friends call you, to explain his situation.  That didn't happen.  Firehim !!!

As far as the two "temps", who would "love" to have the job, a possible "great solution" for them, if they could "job-share".  One person would work 3 days one week, and 2 days the next week, and the other would work 2 days one week, and 3 days the next.  It would mean that they would NOT be full-time employees, BUT, each of them would have a job, and, if one "got sick" or needed time off, the other would be available to fill in.  Sounds like a "win-win" situation to me.

Tony


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## Sea Six (Sep 3, 2011)

You're in a position to hire and fire people, but you ask what to do on a Time-Share Forum?  I hope you have a lawyer. You are in this over your head.


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## SDKath (Sep 3, 2011)

teepeeca said:


> You have TWO (temp) people who are doing an excellent job for you,  One, or both, WANT to be hired !!!  Terminate the "gone" employee, and hire one or both of the "temps".
> 
> If the (soon to be "ex") employee had cared about you, your company, and his job, he would have called you, or had family and/or friends call you, to explain his situation.  That didn't happen.  Firehim !!!
> 
> ...



Tony, that is exactly what I am doing!  One is working 8:30 to 2 and one is working 11:30 to 5pm.  This way I have overlap during our busiest time and since both are trained, I can hope to use one if the other calls in sick.  Also, I don't have to pay benefits (yet) since they are PT and I can really try them out for a number of months.  If they truly are as good as they appear now, I can then maybe promote them to full time once we get super busy in the late fall.  

I think I will call a lawyer on Tuesday.  You guys all have good points about what my role should be.  Sea Six, I realize this is "just a timeshare board" but having a good sounding board for suggestions and feedback is very important to me and I think a lot of people often raise great "counter arguments" that you may not think of.  Yes, I will need to consult a professional about this (it is becoming clear to me), but I still greatly value others' perspective!

Katherine


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## 1950bing (Sep 3, 2011)

Start now and put together an employee handbook. Ask for lawyer input because things change from state to state. Have a copy for each employee and one located at you place of business. Make mention that it can be ammended and get them to sign a master employee list that they have read and agree. Mention that people can be written up for being tardy and other violations and then DO IT !Meet with them each time with a witness. You must have documation(sp). After a certian number of violations you have in print why you came to a decision. This could protect you.
I have been down that path and that is what I did.

bing


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## Ken555 (Sep 3, 2011)

Kath,

Based on your previous posts over time I believe you are in the medical profession. Assuming this is correct, then you have more than the traditional business issues at risk...confidentiality, etc. I'm sure you are HIPAA compliant and more, and while I don't know for sure, but I think each staff at such a location needs to be documented etc. It certainly sounds like this character you hired wasn't going to last. Once you select an attorney, I suggest you review everything - take a deep breath and ask your advisors for suggestions on how to improve your policies so that you are covered for the next issue...whatever it may be.

Fwiw, this is exactly the type of nonsense issue that I absolutely hate as a business owner. I'll probably start a new thread soon but the latest for me is that some jerk of a lawyer notified me that our company website is using a copyrighted image...and he wants $7500 to make this issue go away...my lawyer basically laughed when I told him about this. Good advice is worth paying for, and a good team who know your business and how you operate is essential in providing you peace of mind.


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## SDKath (Sep 4, 2011)

Ken555 said:


> Kath,
> 
> Based on your previous posts over time I believe you are in the medical profession. Assuming this is correct, then you have more than the traditional business issues at risk...confidentiality, etc. I'm sure you are HIPAA compliant and more, and while I don't know for sure, but I think each staff at such a location needs to be documented etc. It certainly sounds like this character you hired wasn't going to last. Once you select an attorney, I suggest you review everything - take a deep breath and ask your advisors for suggestions on how to improve your policies so that you are covered for the next issue...whatever it may be.
> 
> Fwiw, this is exactly the type of nonsense issue that I absolutely hate as a business owner. I'll probably start a new thread soon but the latest for me is that some jerk of a lawyer notified me that our company website is using a copyrighted image...and he wants $7500 to make this issue go away...my lawyer basically laughed when I told him about this. Good advice is worth paying for, and a good team who know your business and how you operate is essential in providing you peace of mind.



I definitely need to update my handbook!  I just reread it and it doesn't specify anything about "leaves" except that they must be submitted in writing and approved by me!  I am going to have to go through the book with a fine toothed comb and try to think of scenarios I need covered.  Like no leave until you work for 6 months or a year or something....  Good advice!

Sorry to hear about your $7500 copyrighted image!  That must be some image -- what did you do?  Reproduce Mickey Mouse on your site??? :hysterical:  

Sigh.  I am so bummed about this guy.  He was so good, at least for the first  3-4 weeks.  K


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## vacationhopeful (Sep 4, 2011)

SDKath said:


> He was so good, at least for the first  3-4 weeks.  K



Most con artists are good. What is the old saying "If it is too good to be true, it most likely isn't".


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## pedro47 (Sep 4, 2011)

1950bing said:


> Start now and put together an employee handbook. Ask for lawyer input because things change from state to state. Have a copy for each employee and one located at you place of business. Make mention that it can be ammended and get them to sign a master employee list that they have read and agree. Mention that people can be written up for being tardy and other violations and then DO IT !Meet with them each time with a witness. You must have documation(sp). After a certian number of violations you have in print why you came to a decision. This could protect you.
> I have been down that path and that is what I did.
> 
> bing



This is very sound advice. doucment each incident and make sure everyone has an updated employee hand book.  This one document could save you some time & money in a unemployment insurance case.

You sound like an employer, or a HR person or a state unemployment insurance hearing officer.


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## RonB (Sep 4, 2011)

In my state, employees can be fired for any reason for the first 90 days. On day 91 you must be able to show reason for termination ~ Ron


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## pwrshift (Sep 4, 2011)

I agree you need the assistance of an employment lawyer as the laws differ from other states and countries, and while TUG is a good place for opinions it's probably not the place for making legal decisions.

In addition to legal advice, talk to your state employment offices and get up to date 'rules' that may help.  If you're soft with this nut you'll have morale problems with other employees.  Change the locks tomorrow.  Consider the lost guy gone...if he comes back he'll poison others.  

This is a time for you to show leadersip.  One of the problems of business ownership is having to hire people who don't intend to work as hard as you do.  But if you get 50% of your effort from two people you'll have a company that is twice as good.  So you need people to grow...but if you find any one as good as you consider yourself lucky.  JMHO

Brian


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## Twinkstarr (Sep 4, 2011)

pwrshift said:


> I agree you need the assistance of an employment lawyer as the laws differ from other states and countries, and while TUG is a good place for opinions it's probably not the place for making legal decision
> 
> Brian



Very true Brian,

I sold my company 10 yrs ago to a Canadian company. Ohio and Quebec employment laws are very different. 

During due diligence, I think they went through every termination over x number of years and had to have employment lawyers from both firms explain to them that every reason was legal in Ohio. Everyone we got a  really? from their head HR person and CEO.


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## jlr10 (Sep 4, 2011)

This won't help in this situation, but might for the future.  Check with your insurance agent in regards to obtaining Employment Practices Liability Insurance.  It is intended  for discrimiation, hiring and firing practices, etc. Besides providing coverage for expenses, should you need to put in a claim, most offer some basic advice on how to handle HR situations that come up.  Depending on the carrier some will also help you with a review of your employee handbook. This advice is included as a part of the policy premium. Just be sure to review the policy with the agent for terms, as some provide only defense coverage, not claims for judgements.  But frequently the biggest part of the claim is the defense anyway.  I don't have a problem that most are defense only, just like to make sure that employers are aware of that limitation. They are not usually expensive for a small business, and the premium is lot less expensive than a lawsuit.


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## caribbeansun (Sep 5, 2011)

Sometimes you just have to do what's right for the business.  If every company did everything to avoid every possible chance of being sued by an employee then nobody would EVER be terminated.

The rules favour the employee, that's reality but so be it, you can't run your business hoping not to be sued.  Terminate this person and put them out of your misery.


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## Patri (Sep 5, 2011)

Since this all occurred within the first 90 days, I don't understand why it is even an issue. You can't let a guy off the street dictate how your business is run.
The 'leave' was not submitted in writing, you didn't approve it in writing. Don't run scared. Lead.


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## Mosca (Sep 5, 2011)

RonB said:


> In my state, employees can be fired for any reason for the first 90 days. On day 91 you must be able to show reason for termination ~ Ron



This. You are in Pennsylvania, 90 days is considered a probationary period.


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## SDKath (Sep 9, 2011)

Just an update that of course I did not hear from my employee today (today was the end of the 2nd week of his supposed "leave").  He was supposed to come in at noon and of course he did not.

I wrote him a letter of termination and will Fed Ex it Monday.  We closed up the office at 1pm for the weekend.  If he came late, he was locked out (we rekeyed and changed alarm settings too).

Anyway, happy to have it behind me.  Now he is considered to have abandoned his job so my life is much easier (and more protected).  Thanks all for the advice.  I am really liking the 2 part time ladies on staff who will be his replacements.  Likely one of them will get a full time job offer after a few months if they continue to do well.

Katherine


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## Htoo0 (Sep 10, 2011)

Glad it worked out. Hope you can be better prepared for the future while you're at it.


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## funtime (Sep 10, 2011)

Call the California agency that deals with employment discrimination or search for them on the web.  They usually are quite helpful to provide information to employers and they are free.  I believe that your company is too small to be covered - it is too small for federal discrimination laws most of which need 15 employees - but you want to check the California state agency to be sure as I believe that employee threshold is smaller.  Further discrimination is what it says - an employee of a covered employer has to establish that the reason for termination was discrimination for a protected category - such as the employer discharging the employee because he is too old, the wrong color, pregnant etc.   Being a goof off is not a protected category.   It is good to get some education and I believe the state agency might be able to help you get some good materials.  Funtime


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## SDKath (Sep 10, 2011)

Great suggestion.  I need to rewrite my company's employee policy handbook too, I realized.  It is super vague and basically almost useless, now that I read it through.  Argh.  I hired a company to help me write it and now that I am reading it, I am realizing how little it has helped in actual situations.

I do need to learn a LOT about this!  I have been lucky to have no prior issues for the last 4 years since my business opened.  But I can see that in the future things will come up and I need to be prepared.

I am very glad things worked out.  I am still holding my breath that he may show up Monday, but I doubt it.

I have written the discharge letter and I am sending it Monday via Fed Ex.   

Katherine


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## presley (Sep 10, 2011)

Just a suggestion - hire everyone on a 90 day probationary period.  Make it clear that in the first 90 days, you can terminate for any reason.  Normally, 3 months is enough time to tell if someone is a flake.

This guy sounds like a guy we hired once.  In his first 6 weeks, he missed half of his shifts.  Some days he called in sick, other days he just didn't show up because he figured we should know that he was still sick.  Finally, I called him and told him that he needed to bring a doctor's note when he came back.  He got all pissy and quit.


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## GrayFal (Sep 11, 2011)

SDKath said:


> Just an update that of course I did not hear from my employee today (today was the end of the 2nd week of his supposed "leave").  He was supposed to come in at noon and of course he did not.
> 
> I wrote him a letter of termination and will Fed Ex it Monday.  We closed up the office at 1pm for the weekend.  If he came late, he was locked out (we rekeyed and changed alarm settings too).
> 
> ...


Something to consider is to keep the two part timers...they are more likely to cover for each other for vacations, sick time, times u might need extra help, and you would have two competent people who know the job. Consider it a "job share" and you would have two happy employees.


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## frenchieinme (Sep 11, 2011)

If you are the owner of a business, it is very important for you to know if your state is an employee at will state or other.  Here in Maine employees are considered employees at will (unless they are covered by a collective agreement and then covered under JUST CAUSE for termination purposes).  As an employee at will the employee can up and leave at anytime and the employer can terminate an employee at any time with no explanation.

Hence, for future reasons, check with your state department of labor.  Not knowing your employer rights can come back to haunt you financially.

frenchieinme


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## ondeadlin (Sep 11, 2011)

Kath - You want someone who specializes in the employer side of employment law for small businesses (a key distinction over large businesses).  A call to your local bar association or the local SBA office should get you several numbers. Good luck!


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## Patri (Sep 11, 2011)

GrayFal said:


> Something to consider is to keep the two part timers...they are more likely to cover for each other for vacations, sick time, times u might need extra help, and you would have two competent people who know the job. Consider it a "job share" and you would have two happy employees.



Unless they want fulltime. No benefits parttime, and it's hard to live well without them.


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## SDKath (Sep 11, 2011)

We are an at will state and our employment offer letter says that (the one I and the employee sign).  It also says that in the employee handbook so yes, that part is very clear to everyone I think.

Katherine


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## frenchieinme (Sep 11, 2011)

SDKath said:


> We are an at will state and our employment offer letter says that (the one I and the employee sign).  It also says that in the employee handbook so yes, that part is very clear to everyone I think.
> 
> Katherine



If your state is an at-will state, then you have no worries.  Just tell the employee he (she) is no longer needed and show them the door.  End of story!  Keep in mind thought the employee can do the same also.  At-will is good for both parties.  Your employee handbook in an at-will state is not worth the paper it is written on unless of course collective bargaining is part of the process.  I would not worry at all.  Sleep well at night even after terminating someone.  You owe an employee no reason for termination in an at-will state.

frenchieinme


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## Kagehitokiri2 (Sep 13, 2011)

SDKath said:


> shown up for work late 2x last week
> 
> Then last Friday, he never went to work. I was at home and he was supposed to be at the office opening at 8:30. I just assumed he was at work and at 9:30 I was totally surprised when he called me to say that he is not coming in and needs a 2 week leave for "an emergency." The phone call was very short and he didn't give me any explanation, just didn't show up and then wanted this 2 week leave. He's only been with our company for slightly less than 90 days.



consult lawyer for details, but sounds like he made your job easy


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## SDKath (Sep 13, 2011)

Still no show today...  Tomorrow is day 3.  I spoke to an employment lawyer today who said CA requires 3 days for "job abandonment" so if he is no show tomorrow, off goes the letter certified mail.

Also, the guy said that while we can let go of anyone at any time in CA due to the "at will" state, they can still turn around and sue you for just about anything.  He said to always be conservative and protect yourself with documentation as much as possible!  So I am learning quickly here.

Fingers crossed that he noshows tomorrow.

Katherine


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## SDKath (Sep 14, 2011)

And it gets better...

I sent off the certified letter today terminating his employment.  Then tonight I got an email from him saying he will no longer be working with us due to a family emergency.  But he wants his last check???  I already sent him his last check, covering his last day of work (in late August).  Is he expecting pay for his leave?  I sure hope not.  Anyway, I replied kindly stating that I sent the full payment of his last check via Fed Ex about a week ago and there is no other monies owed to him.

Hmmmmmmmmm.  Well, at least he quit!  Katherine


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## Htoo0 (Sep 14, 2011)

All's well that ends....


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## stmartinfan (Sep 14, 2011)

SDKath said:


> Also, the guy said that while we can let go of anyone at any time in CA due to the "at will" state, they can still turn around and sue you for just about anything.  He said to always be conservative and protect yourself with documentation as much as possible!
> 
> Katherine



I used to work with lawyers at a large company, and they always had a similar philosophy.  While it may take some time to go through the process, you're always better with the right documentation, etc. 

Even though you are in the right, someone can sue you anyway.  And it will cost you time and money to defend yourself, even if you are guaranteed to win. So the lawyers wanted to be sure we proceeded in such a way that we minimized the chances of being sued by giving the proper notice, doing official "warnings, and so on.


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## dwojo (Sep 14, 2011)

SDKath said:


> And it gets better...
> 
> I sent off the certified letter today terminating his employment.  Then tonight I got an email from him saying he will no longer be working with us due to a family emergency.  But he wants his last check???  I already sent him his last check, covering his last day of work (in late August).  Is he expecting pay for his leave?  I sure hope not.  Anyway, I replied kindly stating that I sent the full payment of his last check via Fed Ex about a week ago and there is no other monies owed to him.
> 
> Hmmmmmmmmm.  Well, at least he quit!  Katherine


You should create a list of company policies and have new employees read it and sign something stated they have read and understand them. Cover the things you can think of and put one in stating that you can add, remove, or change one at your discretion Also post them in an area easily visible to all employees. Written policies and documented proof of having read them reduces confusion and starts the paperwork avoid another situation like that.


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## SDKath (Sep 23, 2011)

dwojo said:


> You should create a list of company policies and have new employees read it and sign something stated they have read and understand them. Cover the things you can think of and put one in stating that you can add, remove, or change one at your discretion Also post them in an area easily visible to all employees. Written policies and documented proof of having read them reduces confusion and starts the paperwork avoid another situation like that.



That's just what I did today.  I met with an HR person and she is helping me rewrite the company handbook, with much more explicit spelling out of policies than the vague stuff I have now from my previous HR firm.

ON top of it all, the guy didn't show for work for 3 days so I sent a no show letter to him (job abandonment basically).  He refused the letter but I have proof that I sent it.  Then he emailed me that he quit.

Today I got a form for EDD.  He is asking for unemployment benefits.  He said he quit because it was too far for him to drive to my office!!!  The nerve. 

HR consultant said to contest it ASAP.  What a jerk this guy is!  I can't wait to see what the EDD will do with this case.  Given that it's the government, I bet they will side with him and give him the unemployment anyway.  I'll keep everyone posted.

Katherine


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## presley (Sep 23, 2011)

He won't be able to collect unemployment because he didn't work there long enough and he quit - he wasn't let go.  

If he is applying for any type of aid for just about anything, they will tell him that he has to file for unemployment and be denied.  So, he may not be serious about applying, only doing as he is told to.


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## bjones9942 (Sep 23, 2011)

Kath,

I'm sorry to hear of your troubles!  I really don't know where the work ethic my parents instilled in me went, but it seems to escape a great many people these days.

As to your employee handbook.  Employees can not sign their legal rights away, so if your list of employee requirements are not up to snuff you are still out of luck (for example, an employee can not waive the right to overtime or to earn minimum wage).  California labor laws are many and you should really employ an attorney who specializes in labor law to draw up your handbook.  I'm sure most of them have a boiler plate handbook and it wouldn't take much to tailor it to your business.

Once you have a well concieved handbook you are still not protected from litigation.  In this land of ours, anyone can sue anyone else.  You only have to alledge that a wrongdoing has been done to file a complaint.  Of course, proving such an allegation during trial may be impossible - but then the 'damage' has been done.  Attorneys have been hired, stress has been suffered and monies have been spent to defend.  This is why many people just settle out of court.  Not a nice picture, but perhaps a realistic one.

Speaking of employees calling in sick ... I am reminded of one of my first bosses.  When people would call and tell her they were sick and had to see the doctor she would say, 'If you're well enough to go to the doctor, you're well enough to come to work'    No, she wasn't a very pleasant person to work with!  She also told me when she hired me, 'Why would you give your current employer 2 weeks notice?  How much notice do they give people they fire?'.  I actually see her point on that one!


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