Help Wanted: Rating caveat could be punitive

Can an employer legally give workers demerits on

Can an employer legally give workers demerits on expected promotions or salary increases if they have to take a day off without notice or if they spend too much time in the bathroom? (Credit: iStock)

DEAR CARRIE: My employer reduces the performance ratings of employees who take time off and fail to give at least a five-day notice.

This results in fewer opportunities for raises or promotions. And employees who have several unplanned absences a year face warnings or termination.

So we get poor ratings unless we can predict at least five days in advance when we will get sick or have to take off because of family emergencies or car trouble.


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Now the company is planning to track time spent on bathroom breaks. It will reduce job performance ratings daily if it considers the breaks excessive. Are these policies legal?

-- Workplace Grades

DEAR GRADES: Your employer needs to tread carefully here with its punitive policies, because it could run afoul of some anti-discrimination laws.

If the absence was caused by a physical or mental disability and the employee couldn't foresee it, then disability anti-discrimination laws could prohibit the company's punitive approach, said employment lawyer Richard Kass, a partner at Bond, Schoeneck & King in Manhattan.

"Advance notice can be required only to the extent that the need for the absence was foreseeable," Kass said. "The only exception is if the surprise absences are so frequent that they cause the employer an 'undue hardship.' "

A similar rule exists for absences covered by the federal Family and Medical Leave Act, which provides for unpaid leave that protects the jobs of employees who have to tend to serious personal health problems or those of their spouse, children or parents.

In those instances, "employees must give an advance notice when they can, but they cannot be penalized for failing to give notice when the absence was not predictable," Kass said.

A new law that is likely to take effect in New York City next year will permit most employees to take some sick days without penalty, he said.

As for the bathroom-use timekeeping, it may be legal but it's still a questionable practice.

"Penalizing employees for spending too much time in the bathroom is probably not the best way to strengthen morale," Kass said, "but it doesn't break any laws unless an employee has a medical problem that requires him to spend more time in the bathroom."

The potty-break monitoring could cut into productivity, something you might want to point out to the office timekeeper.

"Some might say that employees are likely to be more productive when they aren't squirming in their seats due to bladder discomfort," Kass said. "But the law does not always require employers to act with wisdom or compassion."

 

DEAR CARRIE: I teach at a local high school. One of my students wants to know if her employer has to pay her for a six-hour online training course the company requires employees to take. The company maintains it doesn't have to compensate employees for that time.

-- Paid Time?

DEAR PAID: At her age she is most likely an hourly employee, and that means she has to be paid for all the time she works. Federal labor law says that training time is considered work unless it meets all the criteria of a four-part test, said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department in Westbury.

In order for the company to justify not paying employees for that time, the training has to take place outside normal hours; it has to be voluntary; it can't be job-related and the employees can't perform any company work during that time.

"If it's required, and it's part of the job, then it has to be paid for," Miljoner said.

For more on definitions of hours worked, go to http://1.usa.gov/M6EBiy. For more on disability anti-discrimination laws, go to www.eeoc.gov.