Can I terminate w/o potential problems?

Elle

I have only been employed here for 4 1/2 months. Upon my arrival, I was told of an employee that is pregnant and has a very bad attendance record (but even before pregnancy she always called in, I was told). Currently, as she progresses in her pregnancy she requires more time off due to doctor appointments. She has excercised all her paid time off, her peformance is poor to average, and when she isn't present it affects other staff employees b/c then I have to take someone out of their job position and place them into hers.

But b/c I have been here a short period of time, there is very little paperwork documented on her performance and attendance problem. She is creating problems b/c other employees are affected and they are beginning to talk about her. Can I terminate her w/o it being an issue of her pregnancy or discrimination even though I don't have much documented?

juju

Is she eligible for FMLA? If so, you could count her pregnancy-related absences under intermittant leave. I don't think terming is a good idea unless she is not eligible for any type of leave of absence AND you have documented performance/attendance issues.

marc

Welcome to the forum.

Juju has directed you properly on some first steps. Determine whether or not your company falls under the FMLA (Family Medical Leave Act). Basically 50 or more employees within a 75 mile radius. Then does this EE qualify? 1250 hours of service and one year of service.

If you meet these criteria, then pregnancy is a qualified medical condition that could require you to give up to 12 weeks of leave.

This requires an official notice to the EE on your part that you have started the FML clock. Once noticed, you can start counting the absences toward the 12 weeks.

In the meantime, review your companies policies with respect to absenteeism and tardiness, if you have one. If not, it might be time to consider one so that you can treat all EEs in a consistent fashion. It would not be good to terminate one EE for behavior that was tolerated in others.

Then begin documenting incidences of non-compliance with your policy. There is a point that excessive absenteeism can and should cause termination.

As to pregnancy discrimination - you basically cannot treat her any differently than you would any other EE in similar circumstances.

Looks like you have some work to do to protect your company. Good luck.

Elle

No, we do not qualify for FMLA, the organization is very small. I have started to document everything and she is following company policy. Meaning, she calls in through her supervisor, she submits her requests as required and she follows the rules, it is too much though, 2 times the average employee, and her performance is poor.

Thank you all for your feedback!

marc

Check your state regs also, some states have a form of FML that is different than the feds. I don't know if IL has it or not.

Good luck.

Don D

Be very careful that her 'performance' is suddenly not up to par because she is pregnant. FMLA may not apply in your case; however, the laws regarding pregnancy discrimination can envelope you and cause you more problems than you ever imagined possible. Do not terminate a pregnant employee without advice of counsel, which I seriously doubt you will get. x:-)

mbeam

Start the documentation process (not term yet) treating her the same as you would anyone else relative to job performance. What does her last performance appraisal indicate?

Pregnancy is not a free ride for poor performance. The situation you find yourself in is unfortunate due to mismanagement of the situation before you came on-board. Would also have a talk with her supervisor to find out why nothing has been documented for her.

mrbill

Has the Company terminated other PG employees ?
I have learned that it is very risky to take such serious action against a PG employee. Would suggest that you have a sit-down with her, and express the companies concern about the lost time, and the disruption that it causes. No discipline. Document the discussion.
This answer is given prior to reading the prior responses.

Shadowfax

Lots of good advice here, and no, you cannot term w/o potential problems. But, you can never term w/o potential problems, you just anticipate the problems and prepare for them. Your dilemma is to be sure you have treated a not PG employee the same as you intend to treat the PG e/ee. That is why, whenever anyone is termed in my co. we use a form setting forth the reason of terming, and require confirmation on the form how other similarly offending employees have been handled. That form is reviewed by at least two levels of management. If the problem is absence, and other e/ees have been termed for her pattern of absences or less, then you have your preparation of your defense to a PDA claim. Is the claim still a potential problem? You bet! Will you win? Who knows? But you atleast know you have some backup. The good thing about absence as a reason for term is that it probably doesn't matter too much that you were not there, because attendance is a matter of record. If you're a small operation, you might do a chart of all the e/ees absences to show hers is so far out from all the others that the action was fairly obvious. Just remember, anyone with the $100 filing fee can sue you. If you let that fact alone determine how you will administer the co. you'll soon be out of business. Understand the potential problems, prepare to deal with them and then make the decision that is in the best interests of the co. If sued, you are ready to defend your actions. Good luck.

Crout

The short answer is "no". You started off your post by stating the EE had a history of poor performance and attendance, then went on to say that there's "very little" documentation. You need to understand that if there's no documentation there's no history, so you can throw that part of your argument out the window. What's left is a vague statement that she's causing problems because other EE's are asked to fill her shoes when she's at the doctor. My feeling is that's just not enough to let her go at this point in time.

SDDCHR

Start the documentation process. You are asking if you can terminate without a reason....you have a reason...attendance! And remember, attendance is a part of the essential functions of a positoin. Unfortunately, other then verbally addressing it with her, how can you prove that she has been informed of this problem? Start the documentation and it won't be long before you can take corrective action (i.e. termination).