Get There Early

Some of us are habitually on time for events, or even early.  Others are habitually late and in some instances such tardiness can be the target of jokes or good natured kidding.  However, in this age of recession and high unemployment being late for work not only can lead to dismissal from your job, but also render the worker ineligible for unemployment compensation, leading to disastrous financial consequences for the worker and that person’s family.

In Pennsylvania unless the employee has a contract for employment he or she is an “at-will” employee.  This means the job can fire an employee for almost any reason whatsoever (as long as it is not discriminatory).  It goes without saying then if the employee is habitually late for work the employer can fire that worker.  Thereafter, if the fire worker files for unemployment compensation, it is likely that the worker will be denied unemployment benefits.

In a recent case the Pennsylvania Commonwealth Court was asked to decide if an employee’s habitual lateness was “willful misconduct” thereby preventing the employee from qualifying for unemployment benefits.  The Commonwealth Court considered that over the course of the employee’s 4 years with the company she had been reprimanded four times for being late for work.  In the three week period leading up to the worker’s termination she was late six times, with the worker being late at least 30 minutes for work in five of those instances.  The worker was then given a written warning, after which she began a scheduled vacation.  On the first day back from vacation the worker was 45 minutes late for work, resulting in her termination.

The employee sought unemployment benefits, which were denied.  She requested a hearing at which she claimed that she had good cause for being late on the first day back from vacation.  The Unemployment Referee determined that the employee did not have valid cause for her tardiness and that the habitual lateness was “willful misconduct”, making the employee ineligible for unemployment compensation.  The worker appealed to the Unemployment Compensation Board of Review, which upheld the denial.  She then appeal to the Commonwealth Court.

On appeal the Commonwealth Court agreed with the previous decisions.  The Court stated that where there is the existence of specific work rules the employer has the right to expect a certain standard of behavior from the employee.  The Court also noted that sometimes there are situations where a specific rule is unnecessary, and such an instance is when an employee fails to show up for work on time.  The Court wrote, “…chronic tardiness, particularly after a warning, exhibits a sufficient disregard of the employer’s interests to constitute willful misconduct.”  The Court also pointed out that Pennsylvania law does not require a detailed termination policy regarding tardiness or specific notice that future lateness will result in termination.  If the employee’s lateness is habitual and that fact is known or made known to the employee, future tardiness is unacceptable.

The best course of action is be early and be early often.  If you have a habit of running late for work, change the habit and make it customary that you are early. Failing to do so may not only lead to termination from work, but also to disqualification from unemployment benefits following termination.

Employees, Read Your Personnel Files

The Philadelphia Inquirer, courtesy of the Kansas City Star, recently reported that employees should be aware that personnel files kept by their employers are not the property of the employee, but rather property of the company.  This is true under Pennsylvania law.

In this day and age when it is uncommon for someone to stay at a job for decades, and where there is a great deal of unemployment, it is helpful to know that if an employee needs to have access to their file they do have the right under Pennsylvania law to review the file, but not to possess a copy of it.

Pennsylvania’s Personnel Files Act allows employees the right to inspect certain portions of their employment records.  The Act also allows the employee’s agent or representative to inspect the records.  The Act does not require that the employer provide a copy of the file to the employee, but it does allow the employee to take notes of what is in the file.  The Act was passed several years ago, and thus it is silent on whether the employee may use his or her cell phone to take photos of the contents of the personnel file.

The purpose of the Personnel Files Act has been explained by the Pennsylvania Commonwealth Court to acknowledge the right of both public and private employees to review files held by their employers that contain information about themselves, and not to permit access to employees’ personnel files by the general public.  The Court explained that without the right of inspection, an employee would have virtually no way of correcting errors in his or her file, asserting and enforcing rights to promotion and compensation, or protecting him or herself from improper or illegal termination.

Despite defining an employee as a person who is currently employed by the company, the Court specifically stated that it did not interpret the phrase “currently employed” to prohibit an individual from obtaining his or her personnel file when such request is made contemporaneously with termination or within a reasonable time immediately following termination.  This is important because often a person who has been terminated from the company will have the need to meet with a lawyer and to know what is in their personnel file.

The article provided two very important, and smart, suggestions to employees.  First, employees should keep their own personnel files, so that when they need to search for a new job or when there is a dispute with the employer, the employee will have readily available documentation upon which to rely. Secondly, employees should annually review their personnel files so that they can both be aware as to what is included within the file and so any mistakes or discrepancies can be addressed by the employer.

It is generally a good idea, when faced with the prospect of filing for unemployment compensation, making a claim for wrongful termination, or addressing a legal dispute with a current for former employer, that the employee have documentation to back-up his or her “side of the story”.  A good place to start in this regard is to annually review one’s personnel file kept by the employer.