Stay at Home Moms

NSAHM: Are we screwed?

I need an impartial outsider's opinion on this:

We have an employee who is a good guy...when he shows up.  However, ever since we hired him it's one thing after another.  Long story short, he recently got divorced and has had issues with his ex and their kids.  It has resulted in a quite a few unexpected "personal" days.  Throw in a few illnesses (his mom called in to work for him today...over an earache) and he has left one of our trucks sitting for too many days.  DH is p*ssed and told him off this morning.  We'd fire him but my understanding is that our unemployment rates would go up should this guy file.  That doesn't seem fair to me as we'd be firing him for a good reason, not laying him off for lack of work or anything. 

DH wants me to write up some kind of "contract" for the employee to sign saying that excessive unexcused absences/tardies would result in the understanding that the employee is quitting.  Personally, I don't think anything like that would hold up anyway.  I think we either need to take on a back-up guy to fill the truck on these "personal days" (and make it clear to this employee that he is replaceable) or fire him and take the rate hike.  Or we talk to a lawyer and see what our options are (which may cost more than the rate hike).

I think we're screwed but just wondering if there may be an angle I'm missing.  Any thoughts/opinions? TIA!

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Re: NSAHM: Are we screwed?

  • I'd sit down with him first and have a performance plan in place. Give him X # of days (30, 90, whatever) to come in without any absences. If he gets through that period, he's off probation and life goes on. If he doesn't, he's getting fired.

    I don't think you can write up anything that says he quits if he doesn't perform up to standard. And I'd confirm a rate hike or see what the real deal is.

    GL

  • First, if there isn't one already, draft a policy regarding absences and have him sign it.  For example, 3 days no call/no show is considered voluntary separation on his part.  State the # of vacation and personal days employees have.  State that if an employee has an unexcused absence (i.e they went over their allotted days and don't have prior permission to be off), they must provide a doctor's note. 

    If he doesn't have a doctor's note, give him a written warning.  Make sure you have him sign it.  State that three or more unexcused absences results in a termination.  On his 2nd written warning, make sure you state in writing that if he has one more unexcused absence, that he will be fired.

    If you have proper documentation, he should not win unemployment.  But documentation is the KEY. You have to show that he knows what is expected of him and he had multiple warnings telling him he was in danger of losing his job.

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  • PP's already gave great advice. I am sure it's costing you money to not have him on the truck, so either way he's not doing good for your business whether he's on payroll or not (collecting unemployment, if a rate increase would be, in fact, the case. I hope this all clears up soon!
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  • imageApril37:

    First, if there isn't one already, draft a policy regarding absences and have him sign it.  For example, 3 days no call/no show is considered voluntary separation on his part.  State the # of vacation and personal days employees have.  State that if an employee has an unexcused absence (i.e they went over their allotted days and don't have prior permission to be off), they must provide a doctor's note. 

    If he doesn't have a doctor's note, give him a written warning.  Make sure you have him sign it.  State that three or more unexcused absences results in a termination.  On his 2nd written warning, make sure you state in writing that if he has one more unexcused absence, that he will be fired.

    If you have proper documentation, he should not win unemployment.  But documentation is the KEY. You have to show that he knows what is expected of him and he had multiple warnings telling him he was in danger of losing his job.

    I really like this plan, the only issue is that we don't really have a start/end time to our season.  Therefore, we don't offer vacation time or personal days.  If the driver needs the day(s) off for appointments, planned vacation, etc. we're definitely willing to work with them to get them the days off.  And if they get sick, they get sick and a truck just might sit that day.

    I definitely agree that we need some kind of documentation though to fight the unemployment should he file.  A previous employee quit and filed, we were able to appeal and say that he stopped showing up/answering his phone.  We won that without an issue.

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    DD#1~8/17/96------DS~10/24/05 Baby Birthday Ticker Ticker
  • I would go the written warning route as well.  I would say - since you don't have a policy - that he has had an excessive number of absences and list the dates.  I would then state that any further absences will require a doctor's note.  If a note is not provided, he will be terminated.  Also state that the employee, not a family member, must call in and speak directly to his supervisor in the event of an absence.  

    I would avoid anything that smacks of a contract.  That will end up being more trouble for you in the end.  But have him sign the warning letter and if he refuses to sign it, note that on the letter.  

    As for unemployment, it sounds like you've been down this road before.  He will have to file for unemployment, you will provide information stating he was fired then you will most likely have a telephone hearing.  When I've been involved in hearings they want to know what policy or rule was broken, proof that the employee knew the rule/policy (that's your warning letter) and documentation of when they broke the rule.  Excessive absences are usually pretty easy to defend - especially if there are no serious medical conditions involved.

     Good luck! 

    ETA:  You will only be liable for the unemployment claim if he wins.  I don't think filings raise your rates. 

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  • You need to check what your state's employment law is.  Even if he files for unemployment you can argue that he had quit and you were making it official by firing him.  That said, he may be covered under FMLA for the sick kid days. 

    Either way, knowing a lot of people who have gone through divorces and such, there is this time of adjustment.  Was he a great employee before the divorce...  If so, then you have to balance out, do you want to keep him.  Otherwise, you could tie the benefits package in to having a certain number of hours worked in.  You could also move him to being a part time employee for the time being and hire another part-time employee or use an on-call temp agency or trucking firm.

    I guess my overall thought is that you have to weigh out which is the best decision to make for your business in proceeding.  The call to the office to say that "We understand times are difficult in your personal life right now with balancing out your new role as a single Dad.  That said, we think you're a good employee however as a business we can't afford to have someone who is suppose to be a full time employee with benefits not here to do the job we hired them for.  We aren't making any decisions right this second, we need you either on board or we need you to make some tough decisions about your employment here.  Our business reputation is on the line when trucks are left sitting too long which hurts all of us.  If you're not here on short notice, that doesn't give us a chance to find a replacement driver.  We'd love to keep you on, but some things need to change, now." and negotiate something that is agreeable to both of you and that communication is key, and if he can't agree to something reasonable, then it may be time for him to seek employment elsewhere. 

    It's about striking a balance.  Once these issues are worked out and the new balance made in their life, they're life-long-loyal employees who will stick it through your tough times as a business because you helped them during their tough time.  OTOH, right now there is a great talent pool out there for people willing to do just about anything to have a job.

    ETA: is there any possibility of him bringing the kiddo along in the truck when he's making a run?  I remember a few times as a kid my Dad would have to sign a liability waiver for me to ride along with him when he was out driving semi.  I also remember riding along with him on deliveries.  Granted, I wasn't sick or anything like that, and I had to stay in the vehicle (summer the windows were rolled down, but I wasn't allowed to leave the truck unless told I could) but it's better to have a driver with a passenger than no driver at all...  Also, you could have a dress code if he brings the kiddo along as part of the agreement he would sign on a daily basis for those times (clean pants, golf/dressy shirt/company shirt, socks/shoes - no flipflops/sandles).. 

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  • imageMesmrEwe:

    That said, he may be covered under FMLA for the sick kid days. 

    He wouldn't be covered under FMLA because (unless Daisy has been hiding her secret trucking empire) the company doesn't have 50 employees within a 75 mile radius.

    There may be applicable state law that allows for unpaid absences at smaller companies.

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  • I own a business, so I know where you are coming from. You need an employee manual ASAP. He needs to sign it. You need your policy about personal days in writing. All employees need to sign your employee handbook. Talk to a lawyer to get a template of an employee manual that will hold up in court or you can sweet talk another small business owner to let you see their manual. You are going to want to make sure this manual you write up can hold up in court in case a former employee tries to come back and sue you. The document that your DH suggested will not hold up in court. You will probably have to take the rate hike on the unemployment and deal with it. Take this as a learning lesson. Also, make sure you and your DH stay cool with him. You don't want to say something irrational that can cause you headache later.
  • PP's have covered almost everything but i wanted to throw my 2 cents in since I do employment work here in MN - under the unemployment law he will qualify for unemployment if you fire him unless he committed some sort of misconduct, generally speaking, I don't think excessive absences would qualify as misconduct under our statute.  Also, if you created a policy stating that a certain number of absences will be considered a resignation there is a possibility that this could be deemed as a termination under the law because I *think* (and don't quote me on this) that the statute requires a "voluntary" resignation (i.e. with no employer / policy requiring it).  I don't know how much your tax rate would go up but, does he have other employers within the last year?  If so, the rate will be apportioned out among all of his employers and it may not actually be that much of an increase for you.  GL!!

  • A few things I wanted to clear up/address:

    1. We don't provide any kind of benefits except the flexibility with planned days off (and sick when needed) and the occasional "perks" (like paying for their drinks if we're out).  Also, if we're not running that day for some reason we have back-up work in the shop (stated when they are hired) or they run loads for my IL's (who pay them for that work).  Basically, we give them the word that they will be employed despite what is going on in our line of work.  Another "benefit" is that they are home each night and weekend, we pay for the fuel, and the repairs are ours to make.

    2. With his divorce...it's just messed up.  They're divorcing but still seeing each other. Hmm  They have a few kids, she got custody, he flipped out (in court) and went to jail after being found in contempt of court (2 more days he didn't show up). Just...ugh.  They have issues they need to work on outside of company time.  I have been through a divorce, it sucks.  But this guy was sharing way too much with way too many (um, other employees, foremen on the jobs, my MIL!) until DH told him to stop and keep it professional.  He's been good about that but the issues themselves continue to be the problem.  Sick kid, that's one thing.  He hurt his knee, needing to (repeatedly) unexpectedly pick up his kids, one of his 3 vehicles broke down, etc.  I feel for the guy because I understand that you just can't help some things.  But a phone at 4:30am from his mom that he has an earache?  It's always last minute stuff that leaves DH in a tough spot.

    3. We're wary about having kids in the trucks.  DS use to go with DH all the time and DS loved it.  However, that very truck, driven by my brother, rolled this past June after a front tire blew.  My brother probably wouldn't have survived if he hadn't been wearing his seatbelt and had there been a passenger, they most likely would have been killed (passenger side was destroyed).  It was a fluke accident and nobody's fault, but knowing that it could have been DH and DS (in the passenger seat) that day :::shudder:::

    4.   "He wouldn't be covered under FMLA because (unless Daisy has been hiding her secret trucking empire) the company doesn't have 50 employees within a 75 mile radius."  No secret empire...yet, lol;)  We're small but pretty well known in the area.  We have 4 trucks (only 3 running right now) and have worked pretty hard to get and keep a good rep amongst the big construction companies.

     

    Thanks so much ladies!  I think we will definitely look into getting some kind of manual with our expectations so it's clear what flies around here and what doesn't.  I just wish we could clone my brother (our other driver).  He's been working with DH and learning about repair, took the initiative to get his license, and he shows up with little complaint (the super early mornings and long days can get tough).

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