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No-Fault Attendance Policies May Violate Employees’ Rights

by | Aug 3, 2021 | Litigation

Some companies have implemented so-called “no-fault” attendance policies that utilize a point system in order to monitor the attendance of their employees. The aim of such attendance policies is to discourage absenteeism and tardiness. However, no-fault attendance policies can run afoul of legally protected rights to leave.

If your employer has a no-fault attendance policy, they may be violating your rights under state and federal employment laws.

What is a No-Fault Attendance Policy?

No-fault attendance policies operate by penalizing workers for missing work by allocating points to an employee’s record for each absence regardless of the reason for such absence. The points accrue over a period of time and, depending on the company’s specific policy, the employee is disciplined or fired if they hit a certain number of points. Specific point totals and the extent of the punishment can vary from company to company.

Employers claim that these policies simplify the company’s attendance regulations. However, this oversimplification of employee attendance and leave policies can lead to serious violations of laws that protect employees’ rights to receive time off from work. Our attorneys are investigating such violations.

How Do “No-Fault” Attendance Policies Potentially Violate Workers’ Rights?

Under federal laws

No-fault attendance policies may result in violations of federal laws like the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). These laws protect workers who need time off from work due to medical problems, disabilities, or to care for a family member.

Because no-fault attendance policies require employers to treat all absences the same, employers that use no-fault attendance policies may assign points for legally protected forms of leave under the FMLA and ADA. As a result, employees are punished for taking legally protected leave.

Employers may violate an employee’s rights under the ADA if the attendance policy does not adequately excuse the employee for protected absences related to a qualified disability. However, employers are not permitted to discipline workers under these circumstances.

Under California state laws

In California, laws like the California Labor Code, the California Family Rights Act[1] (“CFRA”), the California Pregnancy Disability Leave (“PDL”) law, and California’s New Parent Leave Act[2] (“NPLA”), legally protect certain forms of leave or tardiness from being subject to discipline.

Like federally protected forms of leave, these California state laws prohibit employers from taking disciplinary actions against employees who miss time from work under these statutes.

The U.S. Department of Labor Has Provided Guidance Related to these Policies

The Wage and Hour Division of the Department of Labor (“DOL”) has issued an opinion regarding issues that may arise from no-fault attendance policies. You can find the opinion here https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2018_08_28_1A_FMLA.pdf .

The DOL opinion explains that the removal of absenteeism points is a reward for working and, therefore, an employee benefit. Under most no-fault absence policies, points are maintained on an employee’s record for a period of 12 months of “active service” after accrual.

A no-fault attendance policy may run afoul of the FMLA when taking a qualified FMLA leave results in an employee losing a benefit. This can occur where an employer fails to treat all legally protected forms of leave as “active service” for purposes of point accrual and point removal.

For instance, if an employer counts workers’ compensation leave as “active service” under its no-fault policy, an employee who goes out on workers comp will continue to accrue time toward the 12 months necessary to remove absence points from his or her record. But that same employer would unlawfully discriminate against an employee if it does not count FMLA leave as “active service,” because this would result in absenteeism points being maintained on the employee’s record for a period longer than 12 months after accrual.

It is important to understand that a leave policy’s compliance with the DOL opinion does not guarantee that the policy is fully legal and that it does not in some way violate other laws. This is especially relevant in terms of the policy’s relation to state laws, which is an area that the DOL does not oversee.

What can I do about it?

Knowing your rights as an employee is essential to ensuring that your employer is not violating protections given to you under federal and state law.

It may be in your best interest to consult an attorney to assess whether you are being unfairly treated under a no-fault attendance policy.

Depending on the case, class or collective action may be taken against your employer, as multiple employees may have similar legal claims. In class action cases, a small number of individuals may represent a larger group who have all been similarly harmed by a company. The lawsuit then will seek to halt the company’s abusive practices as well as recover a financial reward for the class through a court decision or settlement.

Do I Have to Pay Attorney’s Fees?

No. Attorneys typically handle wage and hour claims on a contingent fee basis. This means that the lawyers don’t get paid fees unless they obtain a recovery for you.

If your employer utilizes a no-fault attendance policy, they may be violating your rights given to you under state and federal regulations. If this is the case for you or if you have other questions relating to no-fault attendance policies, please contact us at 844-696-7492 (toll-free) or email us at [email protected]. You can also fill out the form on this page.

We will promptly evaluate your claim and let you know whether you are eligible to participate in a lawsuit.

[1] The California Family Rights Act requires employers of 5 or more employees to provide 12 weeks of job-protected leave to employees to bond with a new child (by birth, adoption, or foster placement), to care for a family member with a serious health condition, or because the employee has a serious health condition (other than pregnancy).

[2] New Parent Leave Act provides eligible employees 12 weeks of unpaid, job-protected leave to bond with a new child within 1 year of the child’s birth, adoption, or foster care placement. It applies to employers with 20 or more employees.