Question for HR people

[MinnieLynnie]

My company is VERY small. We only employ 17 people at this time.

A few days before Christmas, one of the employees left work early without telling anyone. Then, the next day she sent a fax saying she was taking a leave of absence due to work-related stress.

We've made many attempts to reach her by phone (she is still in possession of a company-owned phone) to talk about this. She will not answer or return any calls. So, we sent her a letter indicating we want her to come back into the office after the New Year to discuss any issues she may have. We are willing to listen to any issues she wants to discuss.

My question is this: if she fails to contact us within a reasonable time following the 1st of the year, or fails to return the phone (or any other materials she may have), we will consider this job abandonment and terminate her. But, how do we go about getting our property back? Any thoughts?

 

[kennedyzdad]

I have a few questions before I answer this. Are you the owner of the company? Does the company have an HR manager? Does it have a on-site nurse? If there is an acting on-site nurse, the employee could've spoken with them of their reasons and then it would fall under HIPPA and doesn't have to be explained to no one. Companies also have LOA paperwork that the employee would complete so that it doesn't count against them while they are out.

Although I'm not a HR representative but I have to work closely with them on issues such as these or if someone quits who have taken all of their vacation even though they haven't actually acrued all of it at that time. My company will allow you to take 5 weeks vacation if you've earned it through the years but you actually have to acrue it each year which means so many worked days equals so many vacation days you get to take. If i take 5 weeks of vacation within the first six weeks (which they will allow me to do) then quit on the sixth week, they will garnish my pay for the 5 weeks as I had not accrued that many at the time.

The answer or one of the answers to this and your question is to withold their paycheck or take that amount out of it if the property isn't returned. You have every right to do that and companies do it all the time. This will or in most cases be more money than the property the employees hasn't returned.

 

[SMD]

Check you state's employment law. You can't withhold a final paycheck in California, it may be the same in other states. You also can't deduct from a paycheck if it takes someone below minimum wage, and certain deductions that benefit the employer are not allowed. You might want to post on a labor law board or consult an HR specialist that does consulting for small companys. You may have to just send her a final paycheck and then file a report for stolen property with the police. You may also want to consider suspending service on the cell phone so she doesn't run up the bill.

 

[disneychrista]

Unless there is an employment contract to the contrary, you can terminate for any reason. This would be considered job abandonment. As for getting company property back, your only remedy would be to sue in small claims court, if she does not willing give it back to you.
After the first of the year, if she fails to contact, I would send a second letter asking her to contact you by a specific date (say January 10th). Spelling out that failure to do so will constitute job abandonment and as such her employment will be terminated.

We have had to do this with employees out on extended leave. Those that want to keep their job contact us, those that don't well they pretty much don't care.

 

[littlejimmy]

agree with above. give her a specific date

 

[OceanAnnie]

I agree with the above too.

Is this the first time the employee went off the rails? If not, hopefully it's documented. A pattern of erratic behavior would add to the case. Although this is a pretty big bang by itself. Tough spot.

 

[erinmarie2224]

Sorry about the situation - I've been through a few of these. I would also recommend consulting with a lawyer or some specialist. I know it can be expensive but best to get advice now before it turns sour and could cost more - did she have documented poor performance, written warnings, has she filed anything with the company - FMLA, Worker's Comp, harassment claims, etc.

In CA, an employee can file for worker's comp due to stress. Chronic stress and anxiety (or any mental issues) conditions may also have protection under the American Disabilities Act.

I agree that the next step would be sending a 2nd letter (certified or FedEx with signature) stating the date she must contact you by to discuss her situation and what, if any, accommodations she is asking the company may make for her and her condition.

If the employee is not responding to letters, IMO you likely will not get the phone back easily. You should terminate service and change network/email passwords right now. We had threaten to file a police report in one state in order for one ex-employee to actually return company property to us. Very few states will let you deduct wages to recoup expenses - those that do often require when you deduct the expense she is still making at least minimum wage for hours worked.

Good luck - these are never easy!

 

[undertheradar]

Why not turn the service to the cell phone off? Phone has no purpose without service.

As to your other concerns, probably a good time to meet with legal counsel.

 

[Arielle22]

HR Mgr here.

I suggest sending a letter either via FedEx or certified mail which she has to sign for. The letter should state that you have received her fax and need to speak with her about her leave.

Give her a set timeline to respond. If she doesn't you will have considered her to have resigned. You could also send a return FedEx so she can send back her phone and any other company belongings.

In my company, if she wants to request a medical leave of absence, she would need to submit a doctor's note with information on how long of a leave she requested. She can't say she wants a leave and not give any more information.

ADA is about accommodations allowing her to work. If the doctor's note states she is unable to work, then the only accommodation you need to consider is if the leave is reasonable.

Depending on your relationship with your worker comp carrier, you might want to report her alleged injury and when you were notified.

W/C claims for stress can be difficult to prove. The employee has to open their lives up to the carrier and show the stress was from work and not from their personal life.

The key is to do everything to keep your hands clean. If she tries to come back at the company for a lawsuit you want to show you took all reasonable steps and did not fire her because she alleged a w/c injury.

The phone should be the least of your concerns at this time. As another poster stated, labor laws vary by state so refer to your dept of labor for payroll withholding questions. Keep in mind even if you are allowed to withhold payment, it would be for depreciated cost of the phone and you are not allowed to go under minimum wage and OT wage to recoup the money.

 

[eliza61]

My company is VERY small. We only employ 17 people at this time.

A few days before Christmas, one of the employees left work early without telling anyone. Then, the next day she sent a fax saying she was taking a leave of absence due to work-related stress.

We've made many attempts to reach her by phone (she is still in possession of a company-owned phone) to talk about this. She will not answer or return any calls. So, we sent her a letter indicating we want her to come back into the office after the New Year to discuss any issues she may have. We are willing to listen to any issues she wants to discuss.

My question is this: if she fails to contact us within a reasonable time following the 1st of the year, or fails to return the phone (or any other materials she may have), we will consider this job abandonment and terminate her. But, how do we go about getting our property back? Any thoughts?

My company is a huge fortune 500 company so we have very specific steps that we take.

I've only been in HR for about a year.

I agree with others, simply cut the phone service and call it a day.
Unless employee has a specific contract, most employment is "at will" which means one can be fired for almost anything. Now do get that wrong, you can fire some one for protected classes. Like you can't fire someone for being a women, that's discrimination.

Start with a registered letter. document every thing. all attempts to contact her, etc.

good luck

 

[Arielle22]

eliza, it is illegal to fire someone as retaliation for a w/c claim, even if the claim ends up being denied. That is why it is important to document all steps taken.

 

[disneychrista]

eliza, it is illegal to fire someone as retaliation for a w/c claim, even if the claim ends up being denied. That is why it is important to document all steps taken.

While this is true, the employee has not filed workers comp. Just said she was taking leave (which every company I know of has to be approved, not just taken).

 

[SMD]

Another reason that you want to consult an HR specialist is that once an employee takes leave, others may try to follow. You want to have a clear policy in place so that the company isn't opening itself up to claims that different people were treated differently. Even if it's not for a protected reason, you don't want to defend that claim after the fact.

 

[MinnieLynnie]

Hello -

Thanks for all the information and suggestions. I agree that it is a good idea to consult with an attorney about what we DO and NOT have the right to act upon.

Happy New Year everyone

 

[tvguy]

Hello -

Thanks for all the information and suggestions. I agree that it is a good idea to consult with an attorney about what we DO and NOT have the right to act upon.

Happy New Year everyone

Yup, get an expert involved. HR these days is a mine field. Worse yet, you can follow the law of the letter, and in the end still be ordered to pay restitution or damages.

 

[Sadie22]

While this is true, the employee has not filed workers comp. Just said she was taking leave (which every company I know of has to be approved, not just taken).

The statute of limitations on filing has not run. In other words, the employee might still file for Workers' Compensation benefits. The HR specialists who are advising the company to tread carefully and to document all actions are spot on.

 

[I loveStitchnippyjon]

Unless this employee is absolutely invaluable to your company, i would cut her loose ASAP before you have to get ensnared in workman's comp and whatever else she may sling at you.

 

[Bluestars]

My company is VERY small. We only employ 17 people at this time.

A few days before Christmas, one of the employees left work early without telling anyone. Then, the next day she sent a fax saying she was taking a leave of absence due to work-related stress.

We've made many attempts to reach her by phone (she is still in possession of a company-owned phone) to talk about this. She will not answer or return any calls. So, we sent her a letter indicating we want her to come back into the office after the New Year to discuss any issues she may have. We are willing to listen to any issues she wants to discuss.

My question is this: if she fails to contact us within a reasonable time following the 1st of the year, or fails to return the phone (or any other materials she may have), we will consider this job abandonment and terminate her. But, how do we go about getting our property back? Any thoughts?

In our company, unless an employee goes out on FMLA, worker's comp, or disability, we consider the leave-of-absense a termination of employment. We have the option of rehiring them if they wish to return in the future, but we don't legally have to do that.

When an employee of ours fails to show up for work and fails to answer calls, we consider their failure to respond as them quitting. Unless she presents a doctor's note, I don't think her letter saying that she is stressed means anything. It is a good idea to get legal advice on how to handle this since each situation is different.

As far as the phone, I would simply turn off the service. We aren't able to deduct anything from a person's check unless they have signed something giving us permission.

 

[eliza61]

eliza, it is illegal to fire someone as retaliation for a w/c claim, even if the claim ends up being denied. That is why it is important to document all steps taken.

I didn't read that the employee had ever file for workers comp. Where'd that come from. she left without contacting anyone, a day later she says she's taking a leave of absence due to work related stress (by fax, which in my company is not viable proof, how does the employer know it's here and not her 16 year old daughter and her boyfriend, for example). lol, in my company a fax saying you are sick wouldn't even begin to get the workers comp paperwork started.


Now like I said I work for a company with over 50K worldwide so I don't know what happens in a small organization but we consider an injury or work related illness a serious safety/health incident so filing a claim for comp or disability could not be done via fax.


I did say for op to document every thing.

I stand by my original thoughts. walking off the job, no call, no contact could be viewed as job abandonment and we could possibly terminate.

 

[Gumbo4x4]

I didn't read that the employee had ever file for workers comp. Where'd that come from. she left without contacting anyone, a day later she says she's taking a leave of absence due to work related stress (by fax, which in my company is not viable proof, how does the employer know it's here and not her 16 year old daughter and her boyfriend, for example). lol, in my company a fax saying you are sick wouldn't even begin to get the workers comp paperwork started.


Now like I said I work for a company with over 50K worldwide so I don't know what happens in a small organization but we consider an injury or work related illness a serious safety/health incident so filing a claim for comp or disability could not be done via fax.


I did say for op to document every thing.

I stand by my original thoughts. walking off the job, no call, no contact could be viewed as job abandonment and we could possibly terminate.

No-show for 3 days in this state & it's considered "voluntary termination". You're not eligible for unemployment, either.