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by Kristine
(Erie, PA)

I recently returned from maternity leave back in September. Since then, my kids have been sick alot. Out attendance policy separates lates/leave earlys from total absences. Every year, an employee is allowed 6 absences and 12 lates and/or early quits before they are terminated. I am getting very close to the 6th absence. I have doctor's notes for the majority of the absences. My question is, if an employee is terminated for attendance, is that the only thing that the employer is able to use as their defense? The reason I am asking is because I have filed a complaint with my employer because I feel that they are retaliating against me for taking my LOA. Subsequently, I received a very poor performance review, and they brought up my attendance prior to my LOA, which was due to my pregnancy, kids being sick, etc. Can my performance and prior attendance be used? Just a note, my previous attendance 'incidents' were wiped clean as of August 4th, so any previous attendance issues will not be counted towards this termination. Please let me know if you have any questions or need clarification.

Hi Kristine,

Well, I would of course have questions, but if you would like to discuss the details I am available for a consultation.

States like to know what happened that "finally" motivated a termination.

An attendance policy is usually very structured as is yours. They often do not discriminate as to the reason for a late, absence, or early quit.

States most often do discriminate. We all know that being to work on time and consistently is an obligation we owe to an employer, but we do have a life outside of work and things come
up that are "beyond our control" because we also have obligations to our children and family.

If an employer intermingles performance with attendance policies it usually comes down to the "final incident". The question is whether the final incident was misconduct or wasn't it.

It's not a very smart move by an employer. It is exactly the same principle I harp on here. FOCUS!

When you try to throw in every conceivable gripe you can think of for quitting .. you are diluting good cause. All the extra banter only acts to misdirect attention away from the reason a party feels they have met the burden of proving good cause.

So ultimately, since you believe that you are going to be discharged .. you don't yet know what the final incident will be that prompts the employer to fire you.

You just need to document and protect your interests on all fronts until that moment. For instance, if you are written up for performance and your attendance is referenced as a reason the employer believes you are not performing .. document that you believe the warning is unfair .. because the absence was due to circumstances beyond your control for which you have provided the employer with a doctor's note .. etc.

There's nothing worse for an unemployment claimant than employer documentation bereft of the employees comments. A signature alone "appears" as if you are in agreement with the employer. If you are not .. document. Write see attached response next to your signature. The response needs to become part of your personnel file and if it doesn't .. hopefully you have emailed the response and saved a copy which shows when and to whom it was sent.


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