June 10, 2008

Dear Human Resource Professionals, Managers, and Employees:

This is a brief newsletter about the concept of cause and how it might apply to unscheduled absences and tardiness.

Cause is impairment of state service, and this concept of impairment must be apparent from facts presented at an appeal hearing. Impairment should be shown at that hearing, but in a great many cases impairment can be readily inferred from the facts presented. With a flagrant act, such as a physical striking, this inference is readily apparent from the fact of the striking. With unscheduled absences or tardiness, however, facts showing impairment should be presented. What, then, might these facts be?

The rule on unscheduled absences, Rule 12.6, was adopted both to show managers that unscheduled absences could be dealt with directly and to encourage managers to do that. It was not adopted to give managers a reason not to manage. By way of explanation of this point, one approach of a manager might be to follow the strict dictates of the rule about notice to the employee and to then count until seven absences in twenty-six weeks were encountered. This approach, I suggest, is a very deficient way to manage the problem. Further, such a bare bones approach may cause a judicial body such as the Civil Service Commission or the Court of Appeal to look for a way to help an employee. The exercise of judicial power is often not an objective exercise, but is an exercise that considers all facts and seeks to achieve substantial justice between and among all parties based on those facts. On matters such as these discussed here, it can be said that a manager is called upon to show how well he or she sought to manage the problem.

Management is about controlling and directing the activities of employees in order to achieve an efficient and effective organization. It is a significant responsibility and duty. The basics of good management of employees are reflected in the PPR process. The most critical component of that process is communication. The goal of that communication is to either reform behavior or to congratulate good behavior or accomplishment. Communication in this process occurs at the beginning and at the end of the rating year, and, critically, during the rating year. The attempts to manage unscheduled absences should also be the subject of ongoing communication.

In many organizations the failure to appear for work results in impairment that can be shown easily. Maybe another person has to be called in to fill a shift, or a truck does not get repaired as promised, or something similar. In other organizations such objectively identifiable facts stemming directly from the unscheduled absence may not be as easily shown. What should be able to be shown in all cases, however, is that the employee knew that following the directives of the manager was important to the manager. The employee knew this because the manager made an effort to communicate this to the employee. Impairment can then be readily inferred not because some piece of work did not get done, but because the clear directives of a manager were not followed. The manager should keep in mind that the employee is an asset to be managed on behalf of the public and that communication on a problem of unscheduled absences is directed at achieving the goal of reforming behavior, or failing that reformation, for showing there is a reason to get rid of the asset. Please read the PPR section of my newsletter dated August 19, 2002 on how to effect and show communication.

After reading the above, you should be able to discern my thoughts regarding the management of tardiness. They are the same as managing unscheduled absences. As with unscheduled absences, at some point the employee has demonstrated that they are no longer fit for public service, and appropriate action can be taken. Again, however, a showing of good communication will be very important in showing impairment.

One warning please. The appointing authorities in the tardiness cases shown below took some measure of disciplinary action in an attempt to reform behavior. This would not be advisable in dealing with an employee incurring a series of unscheduled absences. Taking disciplinary action on one or more absences will likely prevent them from being used as one of the seven unscheduled absences of Rule 12.6.

Appeal decisions relating to tardiness that illustrate the above concepts are Appeal of Anderson, Docket Number S-10417, Opinion on Application for Review issued January 24, 1995; Appeal of Bradford, Docket Number S-15432, issued October 14, 2004; Appeal of Lunkins, Docket Number S-15650, issued August 9, 2005.

In closing, please know that in coming before anyone asking for an explanation on any subject, including a judicial body, a manager should be able to show how he or she has managed. Techniques can vary, of course, but when it comes to managing employees, communication with employees in an attempt to reform behavior is the key in justifying and supporting a manager’s actions. Please do not use the counting of Rule 12.6 as a substitute for management.

Sincerely,

Robert R. Boland, Jr.

General Counsel

L:RRB:mcc

State of Louisiana

DEPARTMENT OF STATE CIVIL SERVICE

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