Recordkeeping: What you must keep – and for how long

The trouble with recordkeeping at a lot of companies: You don’t know how complete your records are until you get involved in litigation or an audit. But by then, it’s often too late to fill in any critical gaps.  

That’s why it’s essential to know — before you find yourself in some kind of legal dispute — what documents you need to hold onto and what you can trash without putting your company at risk.

To be on the safe side, many employment law attorneys recommend you keep everything for at least five to seven years after an employee has left.

That’s sound advice — if you’ve got the storage and personnel to keep track of all those docs for that long. But it may be overkill, and often isn’t necessary to comply with many employment law record retention requirements.

Here’s a rundown of document retention rules under laws such as the FMLA, COBRA, FLSA, ERISA, HIPAA, ADEA and Equal Pay Act, courtesy of the employment law experts at the law firm Lindquist & Vennum:

Employee leave

The FMLA requires employees to hold on to a slew of employee leave-related paperwork for at least three years, including:

  • Identifying data regarding the employee on leave, which includes name address, occupation, pay rate, terms of compensation, days worked, hours worked per day, and additions or deductions in pay
  • Dates and hours of FMLA leave
  • Copies of employer notices to employee(s)
  • Documents describing employee benefit and premium payment info
  • Docs describing any disputes over FMLA benefits, and
  • Copies of the company’s FMLA policy.

Benefits plans

A slew of laws (ERISA, COBRA, ADEA, HIPAA) layout what benefits plan-related documents companies must hang onto, and the length of time docs must be saved varies by the enforcing law. Here’s a summary of the essentials:

  • Employee benefit plan governing documents — keep indefinitely
  • Summary plan descriptions and notices — keep indefinitely
  • Records backing up the information reported on Form 5500, such as vesting and distribution info, coverage and nondiscrimination testing data, benefit claims info, enrollment materials, election and deferral data, and account balance and performance data — keep for six years after the Form 5500 filing date
  • Evidence of fiduciary actions — keep indefinitely
  • HIPAA privacy record documents — keep six years from the date it was created or the date it was last in effect, whichever is later, and
  • COBRA notices — no required retention period, but it’s recommended these documents be kept for at least six years from the date they were given.


Most compensation-related documents, with the exception of Certificates of Age (keep those until termination), do not need to be kept longer than three years, including:

  • Records containing employees’ names, addresses, dates of birth, occupations, pay rates and weekly compensation — keep for three years
  • Collective bargaining agreements and changes/amendments to those agreements — keep for three years
  • Individual contracts — keep for three years
  • Written agreements under the FLSA — keep for three years
  • Sales and purchase records — keep for three years, and
  • Basic employment and earnings records, like wage rate tables used to calculate wages; salary, wages and overtime pay info; work schedules; and additions to or deductions from wages — keep for two years.


There are a number of hiring and recruitment-related materials employers must hold on to, including:

  • Hiring documents, like job applications, resumes, job inquiries and records of hiring refusals — keep for one year from date of action
  • Job movement docs, such as promotion, demotion, transfer, layoff and training selection info — keep for one year from date of action
  • Test materials, including test papers and employee test results — keep for one year from date of action
  • Physical examination results — keep for one year from completion, and
  • I-9 forms — keep for three years after the date of hire or one year after the date of termination, whichever is later.

Litigation changes the equation

Once you’re on notice that any matter may become the subject of litigation or an audit, you must keep all documents related to that matter until the case has come to a conclusion — no exceptions.

In addition, you must anticipate litigation when you receive a notice that a lawsuit is being filed, notice of a DOL or EEOC charge, an attorney demand letter, or an internal complaint.

What you must keep in those instances includes:

  • the personnel file of the complainant
  • all documents related to his or her application, hiring, promotions, transfers, disciplinary actions, evaluations, training, pay and medical records
  • job postings
  • job descriptions
  • complaint records of other employees
  • investigation notes and documents
  • supervisor notes and records, and
  • anything related to an alleged harasser or wrongdoer.

Bottom line: The best way to successfully fend off litigation or an audit is to be able to produce strong, comprehensive documentation.

The latest thing you can’t ask employees to do: New ruling

Yet another common employer policy has come under fire from the National Labor Relations Board (NLRB). It doesn’t matter if your workforce is unionized or not — if you’ve got this policy, it could be deemed illegal. 

What’s the policy? Asking workers to keep internal investigations confidential.

In a case that involved the telecommunications giant T-Mobile USA Inc., an administrative law judge for the NLRB just ruled that asking employees to keep information that’s shared/discussed during internal investigations confidential infringes upon workers’ rights under the National Labor Relations Act (NLRA).

Employee reports harassment

Angela Agganis was a customer service rep for a T-Mobile USA store in Oakland, ME, when she went to a T-Mobile HR representative, Karen Estes, to report a sexual harassment allegation against her coach.

Afterwards, Estes informed Agganis that she would have to file an incident report. Estes then gave Agganis T-Mobile’s “Notice and Acknowledgement of Duty to Cooperate and Confidentiality,” and she told Agganis to sign and date the notice form.

The notice stated, in part:

“You should keep confidential all communications between you and the Corporate lnvestigator(s) concerning this matter throughout the pendency of this investigation unless permitted by law. This includes all questions and answers during this interview, any written statement that you provide to the investigator(s), and all other information or documents provided to the investigator(s) in connection with this matter.”

Then, in conclusion, the notice stated:

“By signing below, you acknowledge that (1) you have read this document, understand it and agree to adhere to it; and (2) failure to adhere to the duties set forth above may cause harm to T-Mobile and subject you to performance improvement action up to and including dismissal.”

After reading the form Agganis asked if it was correct that she could be disciplined, up to and including termination, for discussing the situation with her co-workers.

Estes confirmed Agganis was correct.

Unfair labor practice

When T-Mobile’s worker’s union, the Communications Workers of America, caught wind of this, it filed an unfair labor practice charge with the NLRB.

The union claimed the notice violated employees’ NLRA rights to freely discuss the terms and conditions of their work.

Section 7 of the NLRA gives employees the right to take part in “concerted activities for the purpose of collective bargaining or other mutual aid or protection … ”

The NLRB has been interpreting this clause very broadly in recent years. It has said it gives employees the unequivocal right to discuss the terms and conditions of their employment. The underlying reason being that employees need to have the ability to plan or coordinate activities that may lead to union representation.

As a result, the NLRB has been on a scorched-earth crusade to eliminate any employer policies that have the potential to prevent employees from taking any such actions.

The ruling

Did the administrative law judge who heard the case agree with the Communications Workers of America’s charges against T-Mobile?

Yes. The judge said the notice and confidentiality requirement did violate employees’ NLRA-protected speech rights.

T-Mobile must now rescind the confidentiality notice and policy, and post a notice about the rescission where employees will see it.

What’s particularly troubling for employers about this case is that T-Mobile actually included a clause in the confidentiality notice that said:

“Please note that nothing in this Notice and Acknowledgement impacts your rights to discuss terms and conditions of employments as protected by law … “

But the judge said that wasn’t enough to save T-Mobile. Why? In essence, the judge said the statements requiring employees to keep all communications between employees and investigators confidential may have carried enough weight with employees to discourage them from speaking up about the terms and conditions of their employment.

Another thing that’s important about this case is that it applies not just to unionized workforces, but to all workforces. While the NLRB is commonly associated with unions, it has the power to made decisions that affect all employers.

Other common policies the NLRB has axed recently include:

  • “no-personal use” email polices
  • prohibitions on discussing wages
  • social media policies prohibiting employees from discussing work matters
  • prohibitions against discussing employee discipline, and
  • handbook policies prohibiting negative comments about fellow team members.

FMLA abuse: A lesson in standing up to it

Handling intermittent FMLA leave can be intimidating. Here’s a case that shows it pays to act decisively when you suspect the employee-centric regs are being abused.  

The story revolves around Mingyi Rowe, a flight attendant for United Airlines. She and her husband — also a United flight attendant — live in Colorado, but Mingyi’s parents and other relatives live in Taiwan.

Rowe suffered from migraine headaches and had used intermittent FMLA leave for several years — more specifically, on 78 different occasions between 2007 and 2011. All her absences were approved by United.

United allows employees to fly for free or at a reduced cost.

Rowe and her husband planned a multi-week trip to visit her family in Taiwan. United approved their vacation from March 2 through March 27, 2011.

In January and February of that year, the couple searched on United’s internal computer system to determine which flights were likely to have seats available. But they were looking for flights leaving Feb. 22 to Feb. 25 — as was later revealed through a search of the United website.

Ah, the old ‘sick uncle’ trick

Later, Rowe testified that she had received a call from her family in Taipei on the evening of Feb. 23, saying that an uncle had been taken to the hospital and was close to death. Rowe and her husband flew out of Denver for Taiwan Feb. 24.

There was another small problem: Mingyi was scheduled work a three-day standby shift beginning Feb. 27. But she said she developed a migraine on the flight to Taiwan, and called in sick Feb. 27 under pre-approved FMLA leave.

Later, when her supervisors questioned her about the absence, Mingyi said she had originally planned to return for her shift, taking a flight Feb. 26 — less than 12 hours after arriving in Taipei. Unfortunately, she hadn’t bothered to put herself on the standby list for the Feb. 26 flight.

United terminated Rowe on grounds that she had been dishonest, “falsely claim[ing] illness as the reason for her absence from work.”

An ‘honest belief’

Rowe sued, claiming she’d been fired in violation of the FMLA and the ADA.

The judge was not impressed. The undisputed evidence, the court said, showed that Rowe was discharged because [her bosses] did not believe her claim that she planned to return to Denver for her Feb. 27 shift when she left for Taipei on Feb. 24.

That disbelief was bolstered by the facts:

  • The flight Rowe said she intended to take out of Taipei on February 26 would have required her to leave Taipei less than 12 hours after she arrived
  • Rowe and her husband performed multiple computer searches for flights to and from Taipei for several weeks prior to their departure and up until the day they left, but neither she nor her husband ever searched for flights that would have returned Rowe to Denver for her three-day shift, and
  • Rowe never sought to place herself on a flight “standby” list for a flight that would have returned her to Denver for her shift.

In addition, the judge said it was not the court’s role to determine whether the employer’s “proffered reasons [for terminating an employee] were wise, fair[,] or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.”

And United clearly believed in good faith that Rowe was being dishonest in her use of her migraines to dodge coming in to work, the court said.

Case dismissed.

Cite: Rowe v. United Airlines, Inc.

The next costly HR headache: Workers’ comp to double

It never ends. You’re already trying to comply with Obamacare. Then, you’ll have to deal with the DOL’s new overtime exemption rule changes. What’s next? 

A wave of workers’ compensation claims, according to one insider.

Our good friends over at recently attended the annual conference for the Association of Occupational Health Professionals in Healthcare and came back with some concerning info for HR pros.

‘It’ll double’

While presenting at the conference, Phil Walker, the founder of the Phil Walker Work Comp Savings Company and a national trial counsel for employers in California workers’ comp cases, said workers’ compensation claims will double over the next 10 years.

According to Fred Hosier, SafetyNewsAlert’s editor-in-chief, Walker said there are three reasons for this:

  1. Technology will eliminate low-paying jobs. We’re already seeing this at places like Amazon, which is using robots to eliminate warehouse jobs, and Wendy’s, which is starting to use order kiosks in place of warm-blooded order-takers, Walker said. And what happens when low-paying jobs are eliminated? People who occupied those positions file workers’ comp claims.
  2. Municipal bankruptcies. It’s no secret cities are having financial problems. As a result, retiree benefits are getting cut, which is already leading to a spike in workers’ comp claims. Walker said when United Airlines filed for bankruptcy, 100% of the people who “retired” filed a workers’ comp claim. And when United tried to enter negotiations to settle these claims, not one person did.
  3. Doctors are money-hungry. As a result, Walker said doctors are looking for excuses to perform surgery, are referring more patients to specialists and pain management providers, and billing above cost knowing they’ll settle with insurance companies for far less. Walker said docs are doing this because they’re finding it hard to survive on what Obamacare and Medicare plans are paying them.

What can employers do?

Is there a way to avoid the coming workers’ comp avalanche? Walker says there may be.

He said companies will start requiring their retiring or terminated employees to submit to pre-termination physicals. This will allow employers to screen for any employment-related health problems and, if none are found, provide employers with the ammo needed to refute bogus workers’ comp claims.

This may be an avenue worth exploring if you start to notice a spike in fishy workers’ comp claims.

Whopping $17M verdict in ugly sexual harassment lawsuit

The is likely one of the worst harassment lawsuits you’ll hear about this year. And it’s going to cost the employer in question a lot of money. 

A federal jury just awarded $17.4 million in damages to five former female employees of Moreno Farms Inc., a produce growing and packing operation on Felda, FL.

It was the result of a more-serious-than-usual sexual harassment and retaliation lawsuit filed by the EEOC on behalf of the women.

The suit accused two sons of Moreno Farms’ owner, as well as another male supervisor, of some pretty horrific and graphic acts of sexual harassment including:

  • regular groping
  • propositioning
  • threatening female employees with termination for refusing sexual advances
  • attempting to rape, and
  • raping multiple female employees.

As for the retaliation charge, the three men were also accused of firing all five women for opposing the men’s advances.

The EEOC filed the lawsuit after first trying to reach a pre-litigation settlement via its conciliation process.

After a trial, a federal jury returned a unanimous verdict in favor of the five women, awarding them $2,425,000 in compensatory damages and $15 million in punitive damages. However, it’s worth noting that it’s possible those damages will be reduced to statutory damage caps at a later date.

In a statement released by the EEOC about the case, Robert E. Weisberg, regional attorney for the EEOC’s Miami District Office, said:

“The jury’s verdict today should serve as a clear message to the agricultural industry that the law will not tolerate subjecting female farm workers to sexual harassment and that there are severe consequences when a sex-based hostile work environment is permitted to exist.”

The EEOC’s statement also reminded employers that preventing workplace harassment through systemic litigation and investigation is one of the six main areas of focus outlined by the agency’s Commission’s Strategic Enforcement Plan, as is eliminating practices that prohibit individuals from exercising their rights under employment discrimination statues.

People are strange: 14 incredible things employees were caught doing on the clock

One of the great things about writing about HR is the unbelievable range of stupid stuff that human beings do during work time. Here’s a small sampling.  

If you’re thinking, “Oh, I bet this is another one of those CareerBuilder surveys,” you’re right. This one asked 2,175 hiring and human resource managers for examples of the most bizarre things they caught employees doing while they were supposed to be working, and the most common productivity killers in the workplace.

First, the most outrageous behaviors:

  1. Employee was taking a sponge bath in the bathroom sink
  2. Employee was trying to hypnotize other employees to stop their smoking habits
  3. Employee was visiting a tanning bed in lieu of making deliveries
  4. Employee was looking for a mail order bride
  5. Employee was playing a video game on their cell phone while sitting in a bathroom stall
  6. Employee was drinking vodka while watching Netflix
  7. Employee was sabotaging another employee’s car tires
  8. Employee was sleeping on the CEO’s couch
  9. Employee was writing negative posts about the company on social media
  10. Employee was sending inappropriate pictures to other employees
  11. Employee was searching Google images for “cute kittens”
  12. Employee was making a model plane
  13. Employee was flying drones around the office, and
  14. Employee was printing pictures of animals, naming them after employees and hanging them in the work area.

Less unconventional distractions

Thanks to smartphones, chatty co-workers and never-ending Twitter feeds, the obstacles that get in the way of actual work are seemingly endless, the survey indicated. Asked to name the biggest productivity killers in the workplace, employers cited the following:

  • Cell phones/texting: 52%
  • The Internet: 44%
  • Gossip: 37%
  • Social media: 36%
  • Email: 31%
  • Co-workers dropping by: 27%
  • Meetings: 26%
  • Smoke breaks/snack breaks: 27%
  • Noisy co-workers: 17%, and
  • Sitting in a cubicle: 10%.

The Consequences

With so many distractions around, it’s almost surprising any work gets done at all – and sometimes it doesn’t. Survey respondents listed  negative consequences for their organizations, including:

  • Compromised quality of work: 45%
  • Lower morale because other workers have to pick up the slack: 30%
  • Negative impact of boss/employee relationship: 25%
  • Missed deadlines: 24%, and
  • Loss in revenue: 21%.

Not too many surprises there.

‘You can’t fire me, I’m on FMLA’: Was mistake-prone worker correct?

As you know, taking FMLA leave can’t completely shield an employee from termination, especially when the person’s performance warrants him or her being fired. But the FMLA very much complicates the matter. So what do you need to be able to safely let under-performing FMLA-takers go? 

Answer: Documented evidence that the employee isn’t meeting performance standards.

A recent lawsuit in which the employer’s decision to terminate an employee on intermittent FMLA leave was upheld by a federal appeals court provides a good example of when it’s permissible — and what it takes — to safely let these kinds of workers go.

Multiple stints of FMLA

Elizabeth Burciaga sued her employer, Ravago Americas LLC for FMLA retaliation after she was terminated following several FMLA-related absences.

Burciaga was a customer service representative, who was responsible for contacting sales representatives and customers, receiving and processing orders, scheduling shipments, and resolving customer issues.

She’d been at Ravago for five years, and was considered one of Ravago’s more experienced customer service representatives.

Earlier on in her employment with Ravago, Burciaga had taken FMLA leave on two separate occasions for the birth of her children.

Then, about year after her last leave, she requested intermittent FMLA leave to help care for her son. Her request was granted, and she took several days off on a somewhat sporadic basis to care for her son.

Ravago never expressed any concerns about Burciaga taking leave.

Mistakes crept in

During the time she was approved for intermittent leave, Burciaga began making mistakes.


  • Burciaga entered an order for 15,000 pounds of material when the customer ordered 22,500 pounds of material
  • She submitted and shipped material under the wrong customer number
  • She shipped the wrong material to a customer, and
  • She shipped the wrong material to a customer again.

A logistics coordinator was able to catch and correct some of these mistakes before customers or the company was affected. But, after being approached by Burciaga’s manager, the logistic coordinator informed him that Burciaga “habitually made shipping errors.”

Her manager then took the matter to upper management, explaining that someone with Burciaga’s experience shouldn’t be making those kinds of mistakes.

Burciaga was terminated. She was told the company couldn’t tolerate continued shipping errors because they could hurt the company’s reputation.

She then sued for FMLA retaliation.

Retaliation a form of discrimination

The court in this case said FMLA retaliation essentially amounts to discrimination — in which an employer takes an adverse action against an employee for exercising a right.

So the employer had to prove it had a nondiscriminatory reason for firing Burciaga.

After reviewing the company’s documentation, which clearly outlined the mistakes she’d made, the court sided with Ravago and dismissed Burciaga’s lawsuit.

When she balked, the court said Burciaga failed to create a “causal connection” between her FMLA leave and her firing.

Three things the employer had in its favor:

  • It had already allowed Burciaga take FMLA leave in the past with no problems
  • Not once was her FMLA leave brought up in the discussions around her work performance or termination, and
  • It had undisputed evidence that Burciaga was making mistakes that could damage the company’s reputation.

All three factors weighed heavily in the court’s ruling that no connection existed between her FMLA leave and her termination.

And the Employer Policy Hall of Shame’s newest inductee is …

Did this organization really think it could get away with this policy, which should immediately be enshrined in the Employer Policy Hall of Shame? 

United Bible Fellowship Ministries Inc., a Houston-based non-profit organization that provides housing and residential care to disabled clients, had a “no pregnancy in the workplace” policy.

That’s right … if you’re pregnant, you can’t work there. It prohibited the continued employment of any employee who became pregnant and prevented the employment of any pregnant applicant seeking a resource technician position, according to the EEOC, which sued the employer over the policy.

The policy came to the agency’s attention after United Bible fired Sharmira Johnson, a resource technician who provided care to United Bible residents, after she got pregnant. Johnson took her story to the EEOC.

The agency then sued in U.S. district court, claiming the policy violated Title VII of the Civil Right Act, after it tried to reach a pre-litigation settlement.

While admitting that Johnson had performed her job well and had no medical restrictions at the time she was terminated, United Bible said her firing was legal — arguing it ensured her safety, as well as that of her unborn child.

But whether or not the organization was looking out of their safety, basing a decision to terminate solely on an employee’s protected status (pregnancy, disability, age, race, gender, etc.) is illegal under federal law.

The verdict

The court ruled that United Bible had “recklessly failed to comply with Title VII” and awarded Johnson $24,764 in back pay and overtime, as well as $50,000 in punitive damages, according to a statement by the EEOC.

The court went on to say that United Bible failed to show that all, or substantially all, pregnant women would be unable to safely and efficiently perform the duties of a resource technician, the EEOC said.

Adding insult to injury, the court pointed out that United Bible was under a funding contract with the Texas Department of Aging and Disability, which specifically required the organization to comply with all anti-discrimination laws.

Following the trial, EEOC Senior Trial Attorney Claudia Molina-Antanaitis, warned employers that they cannot “impose paternalistic and unsubstantiated views on the alleged dangers of pregnancy to exclude all pregnant women from employment.”

Can you fire medical marijuana users? A definitive answer, finally

It’s about time. Employers have finally been given pretty definitive guidance on how they can enforce their workplace drug policies in the wake of marijuana-friendly changes to state laws.

The Colorado Supreme Court just ruled that federal law supersedes state law — and employers have the right to enforce their policies according to federal law.

Translation: Employers can terminate those who test positive for marijuana on-the-job, even if they smoked pot off-the-job in accordance with their state law.

This is precedent that would likely hold up in states besides Colorado as well.

Currently, more than 20 states allow medical marijuana use, and four states have legalized the drug’s recreational use for adults. The recent changes in states’ laws have left employers in the lurch when it comes to how to create and enforce workplace drug policies effectively.

But the Supreme Court of Colorado is saying employers have the right to create their own drug policies as they see fit.

The closely watched case of Mr. Coats

The question of whether or not employees who use pot legally can be fired for failing an employer’s drug test was brought before the court by Brandon Coats, a former phone operator for Dish Network.

Coats is a Denver native and registered medical marijuana user. He’s also a quadriplegic who uses pot in accordance with Colorado law to treat painful muscle spasms he suffers that stem from a car accident that left him paralyzed and wheelchair-bound.

In 2010, he tested positive for marijuana and was fired by Dish, which claimed that his use of pot, even if consumed legally off the job, violated the company’s zero-tolerance anti-drug policy.

Coats then sued Dish for wrongful termination, claiming Colorado law protects employees from being punished for engaging in lawful activities outside the workplace.

Colorado law says:

An employee cannot be terminated for reasons violating public policy. Examples include discharging an employee for: filing a worker’s compensation claim; bringing or threatening a lawsuit; serving on a jury; engaging in lawful off-duty activities; refusing to commit perjury; whistleblower situations, etc.

Two lower courts had already ruled against Coats, and the state’s highest court upheld those two previous rulings by a vote of 6-0.

Court: A violation of federal law isn’t protected

It ruled that federal law, which still classifies marijuana as an illegal narcotic, trumps Colorado’s statutes. Therefore, pot users aren’t protected by state law.

The exact ruling:

“The supreme court holds that under the plain language of section 24-34-402.5, 14 C.R.S. (2014), Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

Pretty clear — employees who violate your drug policies by smoking marijuana can be punished.

Granted, this ruling was made by the Colorado Supreme Court and not the federal Supreme Court, so there’s a chance that other states’ courts may not abide by this decision. But you can bet they’ll look at this as a pretty strong precedent — along with similar rulings handed down in California, Oregon, Montana and Washington.

Bottom line: Employers can feel more comfortable about enforcing their anti-drug policies than they have for the past few years.

It’s also worth noting that the Department of Justice has said it will not prosecute those with debilitating conditions who use medical marijuana in accordance with state laws.

A few outliers

While it stands to reason that other states would use the same reasoning as the Colorado Supreme Court, giving employers freedom to punish pot smokers who fail workplace drug tests, some states have broader employee protections — and how those protections jibe with federal law have yet to be fully flushed out in court.

Laws in Arizona, Delaware and Minnesota, for example, specifically state that employers generally cannot penalize patients for testing positive for marijuana. The saving grace for employers, however, is that each of those states allows employers to punish smokers who are impaired on the job.

Cite: Coats v. Dish Network

Chronic tardiness covered under the ADA? Hey, it could happen

You know that one irritating guy who’s late for everything? He could be asking for an ADA accommodation soon.  

According to a story from London’s Daily Mail, a man who has been late for everything in his life — from funerals to first dates — recently had his chronic tardiness diagnosed as a medical condition.

His penchant for lateness was diagnosed as a symptom of his Attention-Deficit Hyperactivity Disorder (ADHD) at a hospital in Dundee, Scotland.

Doctors there said the part of Jim Dunbar’s brain that’s involved in his ADHD also makes it difficult for him to judge how long it takes to do things — like get ready to go to work, apparently.

Dunbar said he didn’t mind his story being made public: ‘The reason I want it out in the open is that there has got to be other folk out there with it and they don’t realize that it’s not their fault.

‘I blamed it on myself and thought ‘Why can’t I be on time?’ I lost a lot of jobs. I can understand people’s reaction and why they don’t believe me.”

According to the Daily Mail story, some psychologists believe that chronic lateness could be a symptom of an underlying mood disorder such as depression, and many ADHD sufferers complain they struggle to keep time.

Just a minute …

The Mail did note some skepticism of Dunbar’s diagnosis among the medical community.

Dr. Sheri Jacobson, psychotherapist and director of Harley Therapy Clinic in London, told the newspaper:

The condition isn’t in the DSM5 (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) so I’m not sure you can really call it a condition …

Repeated lateness is usually a symptom of an underlying condition such as ADHD or depression but it can also just be habit.

I think making everyday human behavior into a medical condition is unwise.

We’d certainly agree with Dr. Jacobson. But ADHD can be a disability, correct? And getting to work on time could certainly fall into the category of major life activities.

So when will we see our first disability lawsuit from an employee who’s been axed for showing up late too many times?