Employers are generally within their legal rights to take disciplinary action when an employee is late for work, even if it's the first time. Some employers have a policy of writing up all incidents of tardiness in case they need to document a pattern of misconduct. However, in some situations a write-up for tardiness could be discriminatory.
When an employer fires an employee for misconduct, the employee can be barred from receiving unemployment benefits. For instance, Vermont law considers chronic tardiness simple misconduct, which can disqualify the employee from unemployment for between six and 15 weeks. Maryland considers chronic tardiness gross misconduct, which can disqualify the employee from receiving any unemployment benefits for that job. To prove a pattern of misconduct, the company needs to document the employee's tardiness in writing.
Defense Against Misconduct
The legal definition of misconduct is behavior that disregards the employer's legitimate business interests. For instance, it would be a clear case of misconduct to yell at a customer because it directly harms the employer's business. However, being late because of something you couldn't have helped is not necessarily misconduct even if your employer refuses to accept your reason for being late. In this situation, being written up for tardiness could actually help you. For example, if the write-up states that you were late because of traffic it could provide written evidence that you weren't deliberately disregarding your employer's interests and the unemployment commission might rule in your favor.
Although employers can legally write up employees for even a single incident of tardiness, they may not do so in a discriminatory way. For instance, if you get written up for tardiness in a situation in which male co-workers are not usually written up, then your employer may be in violation of the law. The Equal Employment Opportunity Commission's enforcement guidelines specify that companies may not apply disciplinary actions based on the sex of the employee.
Discrimination against caregivers also can be illegal depending on the circumstances. If an employer writes up an employee who was late to work because of child care responsibilities even though it does not usually take disciplinary action against either male or female employees for tardiness, then the action can be considered discriminatory even though the company may not discriminate against female employees in general. However, if the company treats mothers the same as it treats other employees, it can discipline a female employee for being late even if the reason for her tardiness was child care related.
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