I can’t believe in all of my years of answering questions, we’ve never been asked about “no call, no show”. That changes today. This is quite a story.
We had an employee that was a No Call No Show for three days. He ran one of our company trucks and had a company issued gas card.
When I ran the payroll, that’s when I found out the employee had been terminated. When I processed his final check, he had no regular hours worked and 40 hours of vacation time, which I paid him.
My boss came to me and asked how it came about that I paid the employee. He said that the employee was charging personal gas on the company gas card and we should have deducted it from his final check. He told me I needed to get approval to pay the vacation hours on a final check and said that the company gets extra time to pay the employee their final check. He tried telling me we get 30 days before we pay the final check, which I know is not correct. In a situation like this, what is the amount of time we have to pay the employee their final check?
A “no call, no show” situation isn’t as straightforward as it might look. To help us understand more, I asked our friend Kate Bischoff to share her knowledge. Kate is an employment attorney and HR consultant at tHRive Law & Consulting LLC. She’s shared her experience with us before. Her comments in this post about the “Employee Having an Affair with the Boss” are some of my favorites.
And don’t forget that Kate’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Kate, let’s quickly talk about no call no shows. Should they be viewed as a “termination” or a “resignation”? And does it matter which way it’s classified?
[Bischoff] It can make a difference in two different ways. The first way relates to unemployment. If an employee resigns, the employee may not be eligible for unemployment. If the employee was terminated, they could be. This may have a significant impact on employers with high unemployment taxes or experience ratings.
The second way is the timing of the final paycheck. In a few states, the paycheck may need to be paid within 24 hours of a demand by the employee. This requires payroll to have its ducks in a row, and some employers work on the assumption that payment will be made very quickly when they terminate. For employees who resign, their paychecks can often wait until the next regularly scheduled pay date.
This difference is why many employers have a policy somewhere in their handbooks that says three consecutive no call, no shows could be considered job abandonment, otherwise known as resignation. (Warning! Do not make this automatic. The absences could be due to an accident or illness triggering a reasonable accommodation or leave.)
How can employers find out the law when it comes to the amount of time to process final payroll checks?
[Bischoff] Organizations should check their state’s labor or workforce department. Unfortunately, each state is different. Give them a call or look at their online FAQs. Most will have final paycheck issues covered, because they often answer the same questions about this every day.
In this situation, the company believes that the former employee owes them money. If an employee does owe the company money when they resign, can it be taken out of an employee’s final check?
[Bischoff] Be very careful here. Some states, like Minnesota, have requirements before deductions for loans or losses can be taken out of a final paycheck and these requirements can be onerous.
Most employment lawyers will tell employers that it would be best to invoice the employee or take her/him to small claims court rather than mess with final paycheck laws that often carry civil penalties and even possible debarment from government contracts.
In this situation, the final paycheck was issued to the employee without taking out the funds allegedly owed. Could the company go back and ask the former employee for the money? Should they?
[Bischoff] Typical lawyerly answer, it depends. Most often, it is not worth the fight to get the money in small claims court or by improperly deducting the money. In other circumstances, like large loans or employee fraud or abuse, setting the expectation that an employer will seek the money is important too. It really depends on the individual circumstances.
Final question. The reader’s note alludes to the payroll clerk being given misinformation about the processing of final paychecks. What should an employee do if they are being asked to do something that they know (or suspect) isn’t correct?
[Bischoff] Good human resources people are curious and take the time to find the right information. If you have a sneaky suspicion that not everything is right, do your research.
- Look at state agency websites – even the actual laws – and ask your agency questions.
- If you have a friendly neighborhood employment attorney handy, reach out and ask them too.
When armed with the correct information, approach the individual with the wrong information carefully. You both want to do what’s right, so asking where they got their information and working toward the correct solution is the best approach.
As always, I want to give a HUGE thanks to Kate for helping us with this reader note about employee no call no show. If you want to read more of Kate’s insights (and I know you do), be sure to check out her blog.
Curiosity in today’s business world is a good thing. Don’t be afraid to ask questions or do a little internet research. It could make your job a whole lot easier.
Image captured by Sharlyn Lauby while exploring the streets of Las Vegas, NV14