Half-Naked and a No-Show: HR Base Camp Roundup

HR Base Camp, our private professional group hosted on Facebook and composed of over 9,000 leaders of small dental and medical practices, is overflowing with practical, real-life examples and HR knowledge. In our group, members with personnel issues can post HR-related questions and get guidance from, not only their peers but, occasionally HR experts from CEDR’s own Solution Center. As you can imagine, the questions we get run the gamut. All of the questions illustrate the importance of having support when it comes to HR problem solving because state laws and city ordinances almost always change what the solution will be. Some illustrate the unique challenges particular to small business owners, and, frankly, some of your employees leave us shaking our heads and thinking, ‘You just can’t make this stuff up!’ 

We have a wide variety of questions that spark such great discussion, and it made us think, “We shouldn’t just let this valuable HR information disappear into the ether that is internet social media.” Isn’t there a way to share this information without violating the privacy of our professional group? After all, the best way to learn about HR best practices is by looking at real-life scenarios. 

So, crack that proverbial bullwhip, ya’ll! It’s time for our first ever Base Camp Roundup!

Come back with our office key, please!

A Base Camper wanted to know: 

Well, we thought we hired the right person. We onboarded her and now, turns out, she’s ghosted us!  Not only is she a no-show, she won’t respond to or return texts. To make things worse, she still has a key to our practice! We have a deduction release where she acknowledged she received a key, and it is signed by the employee. What should we do now? Should we change the locks? Send a certified letter documenting she did not return the key? Threaten to deduct the cost of the key if she does not respond? 

HR experts from CEDR’s Solution Center said:

Not only are no-shows unbelievably frustrating for management, but they also impact the entire team. However, anytime an employee ceases communication completely, it’s a good idea to touch base with their emergency contact in order to show that you made a good faith effort to reach out to them. While the lack of contact could most certainly be due to poor professionalism, anybody who has watched way too much true crime knows that failure to show up for a scheduled shift at work can sometimes be the first indication of an emergency. It’s possible that the employee has had an accident, a health crisis, or is in some other unsafe situation.

If you reach out to the emergency contact or learn that the employee is indeed safe but simply not going to do the decent thing and give you the courtesy of a call, you can address this particular situation as a standard no-show. Your employee handbook should include a job abandonment policy, so take care to follow your own policies outlined in your handbook. Much of how you will proceed will be determined by the decisions you made while writing that employee handbook ages ago. (For those of you who are still getting around to having your policies properly written, distributed, and acknowledged, this should be a wake-up call.) 

When it comes to job abandonment, we even recommend adding a little padding. For example, if the policy states that two consecutive missed shifts qualify as job abandonment, you should wait one more day to see if the employee responds to your messages or shows up on your radar with a legitimate reason for having gone missing. If she fails to show, you know that you can safely move forward drafting a letter that outlines failed attempts at contact and indicates, based on your job abandonment policy, you are considering their lack of communication confirmation of their resignation. In this particular case, it also might be a good idea to use the specialized, CEDR-created exit interview process, whereby you gain the legal advantage by simply sending a form without actually having to sit down with the ex-employee. 

Should the employee surprise you by resuming communication or attempting to return to work, you can move forward with either corrective action or termination, depending on the reason for the absence. Check to see if your jurisdiction has any sort of protected sick leave because, if so, retaliation for failing to provide notice can be tricky. More than 26 jurisdictions protect no-shows, some for up to three days! 

As far as the missing keys, In your particular case, CEDR recommends changing the locks as a precaution. HR Base Campers had some additional great advice for you! They suggested, in the future, to wait at least thirty days before giving a new employee a key. Members of the group also mentioned that if you have an alarm system, you should make sure you delete the code of the former employee so if they come in with your key, they will set off the security alarm. They even suggested converting the office into keyless entry– all great suggestions with which we agreed!

The problem is members of HR Base Camp wrongly suggested that since you had a form signed by the employee, you have every right to take the cost of the key from her last paycheck, a suggestion which we do not recommend following since it doesn’t pass legal muster in your particular case. The issue seems so straightforward on the surface. After all, you have a policy, and the employee signed it! However, as HR experts, we are trained to spot and solve the question asked as well as the questions left unasked. In this case of your practice, we happened to notice you live in a state with very specific restrictions on paycheck deductions, and those restrictions override the form. 

When it comes to deducting the cost of the keys from the employee’s pay, not only do some state laws require employee authorization, that authorization must be given at the time of the deduction. So, the signed form is not enough in your particular location. For that reason, even though the employee signed and acknowledged she received the keys, we don’t recommend deducting the cost from her paycheck if she fails to return them. This is a really great example of why it’s so important to speak with an expert who can factor in local and state laws when it’s time to make HR decisions.

You can find more guidance on employee walkouts from CEDR here:

Employee No-Shows and Walkouts: What if an Employee Quits with No Notice?

Here’s Your Exit: A Guide to Firing, Layoffs, and Resignations– A free, downloadable guide from CEDR.

Never here are nearly naked

Another Base Camper wanted to know:

An employee is posting racy pictures on social media, and I am very concerned this might affect the practice!  But there is a twist. Not only do the pictures appear to be “professionally staged shots” according to a few employees, this employee is missing a ton of time and showing up late for work due to medical problems so I am unsure whether she is somehow protected based on the medical issues. There is yet another twist, and that is that other employees are reporting to me that it appears she is posting and or posing during times where she says she can’t come into work, and yet there she is hard “at work” on her page posting very provocative pictures. On top of all this, our employee handbook is self-made. It has a social media posting policy but no training or help on how or when it is okay to apply it. We are looking into getting new handbooks written by professionals sometime at the end of this year, but I’m not even sure the one I have now is legal!

More and more commonly, terminated employees are appearing in the news claiming they were fired over explicit social media posts. Last April, a mechanic at a Honda dealership was fired, she believes, because her employer discovered her Only Fans account. In our previous guidance about employees that smell like cigarettes or marijuana, we point out that, for better or worse, employers have precious little control over off the clock activities which is why we always recommend seeking one-on-one guidance from an HR expert or an employment lawyer before terminating a worker over their social media activity. 

If you are considering terminating an employee for off-duty, online activities there are several questions you want to ask yourself beginning with, “Is the activity legal?” If consenting adults appearing naked or, in your employee’s case, semi-naked, on the internet were a crime, there would be a whole lot of people in jail, so you might want to move on to the next question which is, “Is the online activity directly impacting her ability to perform her job?” The last question is the one that seems to most affect you and your particular practice, but, sadly, it’s the question that leaves a lot of room for gray which is, “Could the online activity directly impact the practice going forward?” That would be very challenging to prove, and even more challenging to hang an adverse action on, though, it might be possible… if there weren’t another, bigger issue clouding the matter.  

The thing about this particular situation that makes it so legally precarious is completely unrelated to the semi-nude pictures. You mentioned this employee has a documented medical condition for which she has recently been requesting time off. Firing an employee so close to her medical leave requests could be seen as a proximity issue. The documented medical condition makes this employee part of a protected class, and an employment law attorney would likely be able to take advantage of that, no matter how badly the employee in question behaves online. 

Never fear!  Just because an employee is part of a protected class, that doesn’t necessarily mean you’re stuck with a half-naked, yet often-absent employee! What it does mean is that the need for documentation and good HR policy increases exponentially as does the need for one-on-one professional guidance. Making sure your employee handbook is written and reviewed by professionals is a great first step, and we at CEDR are thrilled that you are taking it!

While we can’t help you stop the employee from taking the pictures, what our Solution Center could do is work with you to box the employee in and ensure that they are truly missing work for health reasons. It is a complicated process, but it works for our members every time.

If you’re looking for more guidance on social media or if you’re thinking about firing an employee, the following articles are a good place to start:

The “Facebook Firing” Case: How Far Employers May Go On Social Media Restriction Policies

CEDR Two Minute Trainer: Your Social Media Policy (and Why You Need It)

Hold Your Fire! Before Terminating an Employee, Ask These Questions

Happy Trails, Base Campers!

In order to maintain the anonymity of the professionals in HR Basecamp, some of the questions have been slightly changed. While the responses above were crafted by CEDR Advisors who are HR experts, this blog post is no substitute for legal representation and should not be considered legal advice. This is mainly because the Facebook Group format is limiting in terms of our ability to dive too deeply into specific issues. We simply don’t have the ability to ask the personal and pointed questions about your particular business that are essential to clarifying good HR policies and practices. 

If you are currently experiencing a personnel or HR issue, the best way to empower yourself is to either seek legal counsel or get one-on-one guidance from HR professionals in the Solution Center through a CEDR Membership. Want to learn how membership can work for your practice? Begin today by making a short appointment with a Personal Account Specialist and discuss your particular practice’s HR needs! 

So long, ‘til the next HR Base Camp Roundup!

HR Basecamp, which serves our purpose, was created as a by-product of our stated mission for the year 2020, and aligns with our vision, is the outcome of our strategic planning process. Click here to find out what those are and to learn more about how we used strategic planning to keep it all together in 2020 and 2021. 

Aug 5, 2021

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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