Episode 13: Ghost Employees and Applicants

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber executive Vice President and General Counsel. With me today is one of our favorite podcast guests, Jennifer Shaw of the Shah Law Group. Jennifer is an expert in employment law, and we are fortunate to have her join us again today. Welcome, Jennifer.

Thank you. I'm so happy to be here.

Well, I am too, because today we are talking about a fairly new phenomenon in the workplace. And that's good.

Yes. And it has nothing to do with paranormal activity. Right.

And it doesn't have anything to do with dating.

No, but you would think it did. And I do think there's a bit of a connection.

Okay. All right. So. Okay, it's not you, it's me. Right. That's sort of the common in the dating world. Right. And we've talked so much about harassment in the workplace and whatnot. So today, what is ghosting in the workplace?

Well, this is where these applicants or employees literally disappear. Now, obviously, we have to have an economic perspective about this, right? Because when people are a little more desperate for a job, they're not gonna do this.

Right? Right.

But right now, a new opportunity presents itself, and it's like they forgot everything they learned from their mother about manners and how to behave in the workplace. They just drop off the face of the earth.

Okay, so let me understand this. We're seeing it not only in the applicant context, but in the employee.

Yes. The employees just disappear on a Friday, they say, have a nice weekend. Monday, they don't show up, they don't return your email, your text, your phone message. And then, of course, you've got all sorts of legal issues that come into play.

Because to me, I'm thinking that's job abandonment.

Sure, we can talk about job abandonment. And you and I have talked about handbooks, right, where people have these three day, no call, no show job abandonment. Which drives me crazy because, look, if you don't show up for one shift, that should be enough. What, I'm gonna sit around and wait for the boy to call? No, it doesn't work that way.

Okay, so let's take a step back. Let's first talk about from the applicant's perspective. Cause I can understand. You know, we've mentioned before on our podcast that the unemployment rate is at an all time low. It is definitely an absolute applicant market, so to speak. Right. Where there are far more employers looking for positions as there are employees who could fill them. So is it safe to say that applicants kind of are in the have the upper hand right now?

For sure. They're definitely driving the bus. And, you know, look, let's talk about how employers have not always done the right thing in a bad market. These employers don't even bother to write applicants and say, you're not qualified. We've chosen someone else. So in a way, we're sort of getting what we dished out.

Ah, okay. Be careful what you do.

Be careful how you treat people. Right. So what's happening now is these applicants might be scheduled for an interview, or maybe the recruiter or the manager has said, yes, I want to talk to you. They get another, you know, opportunity, and they don't bother to say, I'm going to cancel my interview or I'm no longer interested.

So what are the repercussions for ghosting on the applicant side of things?

Well, the problem is, the first thing I think that we need to think about is this idea of, look, you have set somebody for an interview or you've told someone that they're interested or that you're interested in them, then they disappear. So you gotta wonder, did they get hurt? It's very similar to what we deal with with employees. Right? Is there some medical issue? And can I move on now that I've told them I want to have an interview with you? Let's say they don't show up Tuesday at 3, Tuesday at 4, 15, can you start to schedule someone else for an interview? Because I think what employers worry about is, oh, gosh, is that person still in play? How do I get them out of play so that I know, okay, look, you don't want me, I don't want you. I'm moving on. Right? And I think that's what a lot of employers fail to do. Two weeks later, the applicant comes back, says, I'm ready for my interview. And now the employer says, oh, but I've already filled the job. Well, how could you fill the job? You made me, you know, you scheduled me to come for this interview, or you told me you were interested in speaking to me. So I think the clear communication on all sides is so important. If the person doesn't show up, you need to say, you didn't show up, and I wish you all the best. If they want to call you and say, look, I was in an accident, it wasn't my fault, we can reconsider. But I think there needs to be a process that employers follow because otherwise they have these people floating out there.

And this kind of brings to mind if an offer has been made and time passes and you don't Hear a thing. I mean, are we seeing applicants even ghost an offer?

Yes. And here's what I've always done in my offer letter that is even more important. Now. I will say in the offer letter, we look forward to a favorable reply. If we don't hear from you by X date and I literally give them a week, this offer is deemed withdrawn.

That's fantastic.

Because that way, you're done. That person is out of play. And now we can make an offer to someone else, and they can't come back and say, well, you made me an offer three months ago. What's going on?

The other thing that comes to mind as we're chatting here is, you know, in California, as far as conducting a criminal background check, we have to wait until a conditional offer of employment has been made. There's nothing about acceptance. And I'm just thinking here, I make a conditional offer, I start my background check, and there's all sorts of processes to go through. I could see how ghosting could be a real problem in that situation.

Absolutely. And that's why I think it's very, very important for the employer to put a deadline.

I like that.

You know, and we can even say, with respect to your comment about background checks, we could even say, you know, once we hear from you, we will begin the background check process. Because we always say that the offer is contingent on proof of ability to work in this country. And if there's a background check, medical exam, whatever it is, depending on the position. So I think we need to spell it out as well as we can up front so that we're not holding the bag as the employer.

I think that's fantastic and really good tips for employers who I know a lot of employers are trying to recruit. Right. And really having a challenge doing so.

You know, it's very difficult because part of it is the same old problem we've always had of you. You look at the resume, you interview someone, but you don't really know how they're gonna be until they show up.

Yeah.

And one of the things I've always said is, like, who you get in the interview and on the first day of the job is the best it's ever gonna get. Like, it's downhill from there.

That's like, first date, right?

For sure. First date, right. So the problem is we can do everything possible to try to get the best candidate, but these days with ghosting, they may not even show. We have to be really practical about, look, nobody is the perfect candidate. All hope is not lost when someone doesn't show up. Let's have some procedures in place so we can just move on to the next person. Because let's face it, you know, in this time, just as in any other, if someone isn't hot about working for me, if they don't want to be part of my team, I don't want them. You know, it's not like I want them after they've checked with four other opportunities because ultimately that person will be looking for another job. It's not good for my organization or for that person.

That's a great point. And I know you're an employer as well, so that's a fantastic perspective. Yes. So let's talk a little bit now about when our employees ghost. And I know in that context, there's a lot of legal issues that employers need to be aware of, and we talked briefly about it at the beginning. So let's dive in a little bit more.

Sure. So one of the things that becomes really amplified with employees is this leave of absence issue. Did somebody not show up because they're sick or they're taking care of a family member? And there are a lot of processes that come into play. While we try to reach them, they don't call us. Now we need to send a letter. As you know, you haven't showed up to work. You know what's going on. And there's a lot of sort of ambiguity in terms of how far we should go and what we actually need to do practically. Again, I think clear communication is everything we need to say to that employee. You didn't show up. If there's a reason you didn't show up, please contact me at this number immediately. And I tell clients, email it, text it, mail it. By the way, never do mail us Mail return receipt requested, because, number one, they will never sign the return receipt. And number two, it'll take you two weeks to figure that out.

Well, and you know, that raises a really good point because I get questions about that a lot as far as even when you're mailing the final paycheck, assuming you have the authorization to do so, should I get signed receipt? And let's talk a little bit, because it's not just the US Postal Service. It's also FedEx UPS. There's some problems with that.

There are some problems. I tell most of our clients, unless there's some weird thing going on, don't do receipt or a signature required or receipt request requested. Right. You already have the UPS person saying, I went there and I dropped it off. So as far as I'm concerned. And we've won that at the Division of Labor Standards Enforcement saying, look, we dropped it off. We're sorry that the cat ate it or whatever happened. Right. But if you request the signature, then it's their opportunity to create the delay. And I think as the employer, we have to be strategic to take as many of those opportunities away as we can.

Okay. So shifting back to the ghosting of that current employee, and we talked a little bit about the no call, no show job abandonment policies. Let's talk a little bit more about kind of the pitfalls of them and how to have a policy that's crafted so it's going to benefit both the employee and the employer.

So I think the thing that benefits the employee and the employer the most is to say, if you don't show up for a shift, we are going to be concerned about you and we're going to call you. And if you don't respond to us, we may assume that you have resigned your position. Right. You have voluntarily abandoned your job.

Right.

I don't see any reason to say it's two days or one day or three day or five days. I just want to put them on notice. Look, you have to communicate with. Right. And so I like a more vague policy about. This is why we need you to be in touch with us. And if you're not in touch with us, we may not. We will. We may consider that you have resigned your position. That way it gives us wiggle room if we have some, you know, one of their co worker friends tells us, oh, I heard she was really sick or her mom's ill in Mexico. She went to Mexico. Okay, then we can figure out what we want to do about that. But I don't want to again, give the employee the ability to take three days while our hands are tied.

Okay. Because I, you know, oftentimes employers want a clear deadline. You know, we often get, how long do we have to accommodate someone on leave before we can terminate them? And they cringe when we say, well, it depends. Right.

The typical lawyer answer that drives everyone crazy.

Exactly. So as lawyers, I can understand and appreciate the desire of having a somewhat looser job abandonment policy for exactly what you're saying to accommodate if somebody's ill because we've got accommodations issues there. But for those employers that really like to have some structure around it, when can they pull the trigger? You know, how many days are they trying to reach out to them?

It's a great question. I think one Ms. Shift is all you need okay, These are at will employees. We all have attendance policies in our handbook that says call an hour before your shift or call two hours before your shift. You're not going to make it. If they don't make it, you absolutely have the right to say they have resigned their position.

But, Jen, what about sick leave and the laws that allow an employee to take sick leave? I mean, should there be a little bit more, though, from the employer as far as, hey, we've reached out, we've made an effort to at least show that there's some kind of interactive process, if you so to speak. Right, okay.

So here's my thought about sick leave. They have to tell us they're using sick leave. Yes. Now, I realize sick leave is a huge pitfall for employers because you can't ask for a note and you can't ask them to cover their shift. And, you know, you can't consider it as part of a disciplinary issue.

Right.

But we don't have a crystal ball. The law does not require us to say, oh, Erica didn't show up today. She must be ill, she must be ill. Why don't I let her use her one day of sick leave? Now, every employer has their own view of risk assessment, right? So some employers might say, look, I'm going to wait three days, since under the law I have to give three days of sick leave, whatever their shift is, could be eight hours or 10 hours, then we'll, then I'll go ahead and do the three days. But I really feel strongly that if an employer decides they want to say, if you miss a shift without following our attendance policy, we may decide that you have resigned your position. And depending on the circumstances, we may separate your employment. I think that's enough.

Well, and I think that you made two very important points. There is, we may, meaning that it's not going to be absolute and depending upon the circumstances. And I think that's really the two most significant parts of what we're talking about, because like you said, every workplace is different and every risk assessment is going to be different. And turnover in every workplace and every department is different. So I think for those employers that are listening today to really understand the fact that there's no one size fits all, particularly with these issues, and to really, like you said, communicate with your employees, you know, I know, and I've mentioned this before, a lot of folks just get nervous about reaching out to their employee, afraid that they can't, or, I don't want to bother them, or, you know, well, if I do I mean, here's the great one. We really don't like them. So if we do, are we encouraging them to come back?

Maybe they'll actually ghost us forever, which would be beautiful, right?

Exactly. Right. Now, before we wrap things up, I just want to address one thing that I think is important with ghosting. What if somebody has an emergency or gets into a car accident?

Of course we're always going to. So even if we pull the trigger and say, you're done, we're always gonna say, hey, listen, we get it. Thanks for telling us. And of course, the communication Erica that we send saying, hey, you didn't show up. We think you've resigned. We wish you all the best. If we've got this wrong, call us.

Okay?

That's a really important part of that communication with you. 100%.

All right, so summary here is. Communication is key, as it always is. Good policies in your handbook. Right. And really making those decisions based upon your workplace and the circumstances surround the individual, the position, and what you think might have happened. Because I think employees talk with each other, and oftentimes you can get some information from the employees as well.

That's exactly right. And just one thing to add on that is that a lot of employers would say, oh, well, that's just gossip, and I'm not gonna pay attention. But gossip can be so valuable.

Yes. Gossip sometimes can be gold, especially if you're sitting in that HR chair. Right, Exactly. All right, well, thank you, Jennifer, for joining us again on the Workplace. Please comment, share, and subscribe to calchamber's podcast@calchamber.sam.