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How you handle the termination of an employee can have huge legal consequences.

Done incorrectly, an employer could face an imminent lawsuit with a slew of legal claims amounting to tens or even hundreds of thousands of dollars.

One question I get quite often is what can or can’t an employer do when an employee fails to come to work and does not call explaining their absence (“no show/no call”)?

First and foremost, you should make sure that the company has a specific written policy in its employee handbook regarding no show/no calls.

Many of our clients have policies informing their workers that they will be deemed to have voluntarily resigned from their employment after 2 or 3 days of absence if they have not called in to say they will be absent.

Guidance from California courts suggests that a policy that allows 3 no call absences before terminating the employee is reasonable. Nevertheless, it is always prudent for the employer to attempt contacting the absent employee before terminating.

There can always be those rare circumstances where advance notice of absence is not possible. 

Also, great care should be taken to check the employee’s file to see if the employee had taken any recent medical leaves or had a disability that needed accommodation.

Terminating an employee for violating a no show/no call policy in these instances could look poorly on the employer and make a stronger case for retaliation or discrimination. 

Get your termination policy clear, use your best judgment, and as always, make sure everything is in writing!

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