Can an employer go back and retroactively count tardies for the past year?

UPDATED: Oct 1, 2022

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Can an employer go back and retroactively count tardies for the past year?

I have a new supervisor at work and they have went over my timesheets for the past year and counted me tardy multiple times and I was given a verbal warning. Although my old supervisor did not count these as tardies at the time or ever discuss any attendance issues with me ever. We do have an attendance policy that I signed stating we are late after 4 minutes of start time. I honestly did not read it and was always under the impression we had 5 minutes to get clocked in. All of the tardies I received today retroactively were days that I clocked in at 5 minutes after start time. Our time tracking software does not count us late until 6 minutes after start time. So my old supervisor never got any

notifications or flags showing I was tardy so that’s why it was never brought to my attention. Since I have been hit with so many at one time spanning a years time it does put my job at risk. Now I can not be tardy, call in, or leave early for 8 months without fear of losing my job. Although no serious

disciplinary action was taken against me today, it will be very easy from this point on. And until today I have had no attendance issues for over 3.5 years with this company. I just need to know if it’s legal to do that because I did sign the attendance policy.

Asked on February 22, 2018 under Employment Labor Law, West Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Yes, it is legal. The fact that your prior supervisor may not have enforced the policy against you does not mean your current one may not, and there is no law or limitation against an employer looking at an employee's past behavior as well as current or future behavior. The employer may retroactively count tardies or othewise hold any past conduct or behavior against you. Moreover, unless you have an actual written employment contract for a set period of time (e.g. a one-year contract) which is still in effect and which protects your job, you are an "employee at will" and could be disciplined or terminated at any time for any reason whatsoever.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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