When Should an Employer Discharge an Employee After Giving a Final Warning for Attendance Violations?

After The Final Warning

When should an employer discharge an employee after giving a final warning for attendance violations?

Firing an employee can be complicated. If the discharge takes place after the first violation, the employee may not have been given sufficient time to improve their performance in this regard.

If an employer discharges after several violations, then the employer may have implicitly “condoned” the continuing lateness.

The New York State UI Appeal Board has faced this issue several times over the past few years in determining eligibility for unemployment insurance benefits.

Unfortunately, the board’s decisions have been inconsistent and they provide little guidance to employers on deciding what to do in this matter.

Some board decisions were determined as misconduct. For instance, for repeated lateness after a final warning without an acceptable reason. Others have held that by not immediately discharging after the first violation, the employer has condoned the lateness or absence, and therefore the claimant is eligible for benefits.

The best option is to inquire of the reason for lateness after each incident. If the reason is not acceptable, then the prudent step to avoid liability for UI benefits, is to discharge at that point.

However, if the reason is “acceptable” then it’s important to document why the violation occurred and remind the employee that the warning still is in effect. This of course requires an employer to be vigilant in monitoring the attendance of employees on final warning.