As the unemployment rate remains low, there may be more available jobs than qualified applicants to fill them. So, job-seekers are in high demand. One possible side effect of aggressive recruiting and rising wages is that employers are experiencing what is colloquially known as “ghosting.”

Likely coined in the dating context, “ghosting” means disappearing without notice, traditionally called job abandonment in the employment law milieu. The “ghost” worker vanishes, sometimes without even informing the employer. The employer is left wondering whether the employee is ill, has been in an accident, or resigned. 

Naturally, ghosting results in unplanned understaffing. It also leads to potential payroll, leave of absence, and wage-hour issues. To mitigate employment law risks, employers should consider how to address this relatively new phenomenon

Pitfalls for Employers

Uncertainty about why an employee is absent without notice presents challenges. Managing workflow is an immediate concern, of course. Employers routinely handle occasional absences due to illness, and longer leaves. But ghosting may cause different staffing concerns, primarily because of the lack of notice. 

When may an employer decide that an absent employee has abandoned the job?  On a human level, employers and co-workers may be concerned when an employee just stops showing up.

Employment laws, too, complicate the answer to that question. Incapacitated employees may qualify for job-protected family and medical leave, or paid sick leave, for example. The employer should assess whether the employee is eligible for these and other leaves before acting. If the employee has a history of absences for protected reasons, confirmation of the reason for the absence becomes more important.  

If the employee has indeed quit, the employer will need to consider how and when to comply with its final pay obligations.  Questions that arise include: what is the “termination date,” how will final pay be managed and delivered timely, and what to do about unpaid bonuses or commissions?  

Employers frequently are concerned about preservation and recovery of company property, including equipment, trade secrets and other confidential information.

Policies and Practices

Communication with a suspected “ghost” is a common-sense first step. Employers may call, email, text, or send a letter to inquire about the absence. If employee do not respond, consider checking social media activity, such as a new job announcement on LinkedIn.  Documenting the communication, including unsuccessful attempts, is essential.

Every employer should have a job abandonment policy. A “no-call / no-show” policy usually provides that employees are deemed to have resigned after, for example, three days of unexplained absence.  The policy may be revised to state that any “no-call/no-show” will be considered job abandonment, if the employer is unable to make contact.

Employers should not “selectively enforce” a job abandonment policy as an excuse to get rid of employees.  Consistency generally boosts an employer’s defense to a discrimination claim, for example.

Additionally, employers face potential liability for discharging employees who might otherwise be entitled to legally protected leaves of absence or reasonable accommodations. Employers therefore should ensure a job abandonment policy allows for incapacitation due to illness or accident, particularly if protected medical leave or paid sick leave is available. Employers also may flex this policy if a known disability includes accommodation for unplanned absences. At minimum, employers should consider whether to reinstate an employee who failed to call in, but was unavailable for bona fide medical reasons.

Employers may set expectations by requesting adequate notice before resignation in employee handbooks or other policies. At orientation, new employees should be informed about the job-abandonment policy, and that providing notice of quitting is appropriate and appreciated.  Mandatory notice, on the other hand, may compromise an at-will employment policy, and may require payment for the notice period if the employer does not allow the employee to work until the resignation date.

Finally, the employer should set the termination date as the date the employer determined under its policy that the employee abandoned the job. The termination date is significant because, for example, final pay for an employee who resigned without notice is due within 72 hours of the resignation date. The termination date also may trigger obligations such as a COBRA notice. Employers should never withhold final paychecks to punish employees for failing to provide notice or return company property.

The Labor Code provides that a terminated employee’s final check must be ready for pick-up at the employee’s work location or the employer’s office on the termination date. However, an employee who resigned can request mailing of the check. Notwithstanding the statute, the Division of Labor Standards Enforcement may require the employer to make efforts to pay the final check for the employer to avoid “waiting time” penalties. So, if the employer contacts the employee, ask whether the employee wants the check sent instead and document the answer. Send final pay with via a service that permits “tracking” the shipment. If the employer cannot make contact, it may be safer to send a letter to the employee’s last known address, via a service that tracks the delivery.

Employers should avoid using reference checks as a way to punish former employees.  Employers should respond to reference inquiries in a factual and evenhanded manner.  That said, it is lawful to have a policy that the employer will truthfully report to prospective employers whether the employee resigned without notice. Along with the other issues discussed in this article, employers should work with qualified employment counsel on a reference policy.

 

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