Recruitment & Staffing
Job Abandonment and the Employer's Responsibilities
Q: What should an employer do when an employee fails to show up for work? Is this job abandonment?
A: Job abandonment occurs when an employee has no intention of returning to the job and hasn't notified the employer of his or her intention to quit. Generally, this is considered a voluntary termination. However, the employer must comply with the state's unemployment division's definition of voluntary termination.
Employers are cautioned not to assume all “no call/no shows” are automatic job-abandonment cases. Occasionally, employees are unable to contact the employer, such as in medical situations, incarceration or some other form of crisis. If it's a medical condition, the employer is still obligated to determine if the absence is covered under the Family and Medical Leave Act (FMLA), and whether any leave will be paid leave or unpaid FMLA leave. In addition, the Americans with Disabilities Act (ADA) may apply in specific cases. Employers must investigate before making any determination to avoid FMLA and ADA claims, as well as wrongful termination claims.
Employers should develop a policy defining how many days of absence will be considered job abandonment. There are no federal or state laws that specify the number of days. However, in some states, case law establishes three days as reasonable. Three days is the most common measure and will provide employers with enough time to investigate the absence (but not long enough to put the company in a position of holding a job for someone who will never return).
In addition to policy development, employers must develop investigation procedures and follow the termination process. The process for investigating must minimally include contacting or an attempt to contact the employee before issuing the termination. Send a job-abandonment letter that explains the employer's position and requires the employee to contact the employer if there are any circumstances of which the employer is not aware, such as a medical issue that could potentially change the employer's action. Send the letter by registered mail and keep the return receipt in the employee's file for proof of notification. Follow termination procedures, such as updating the employee's file with documentation and termination dates, sending COBRA and insurance forms, if applicable, and cutting the final paycheck according to state requirements.
A sound policy and procedure will provide proper guidance and reduce employer liability by leaving little room for potentially costly errors.
Article by By Vicki Neal, PHR-CA, is an HR Knowledge Advisor in SHRM's HR Knowledge Center from http://www.shrm.org/kc/solutions/articles/archives/CMS_025358.asp#P-8_0