A lot of employers have begun using a system known as “attendance points” to penalize, and even fire, employees who are absent a lot. Recently, some employees have challenged the legality of such a system.
First, let’s define attendance points. They really should be called “absence points,” since under most systems, an employee is charged with points for each absence in a set period, typically a year. Typically, too, the systems set a ceiling on points, such as eight in a year. Hit the ceiling, and you’re fired.
On the flip side, point systems often allow employees to “erase” points against them if employees work a consecutive number of days. So, let’s say an employee has seven points on his record. The employer may allow the employee to remove four of the points by having a perfect attendance record for six months. And that’s the part of the system that gets questioned in court.
Now, let’s mix all that together with the Family and Medical Leave Act, which mandates that employees must get unpaid leave for, among other scenarios, caring for an ill family member or giving birth. FMLA rules say you must provide the same benefits to an employee on FMLA leave as you would to an employee who’s actually working. For instance, if you have a pay-raise system based on seniority or time in service, the time an employee spends on FMLA leave must be treated just as the employee were working – and the employee gets all the same seniority and time-in-service bennies.
That brings us to the lawsuit of Bailey v. Pregis Innovative Packaging, Inc.
In it, the employee racked up nearly enough attendance points to get fired. Then she worked a few months, took FMLA leave, and worked a few more months. Then she was absent again – which pushed her over the top on points – and the company terminated her.
She sued, saying the time she took on FMLA leave should have been included with the other months she worked, giving her enough consecutive time to have her attendance points erased.
The employer won the case. The reason: There are some benefits that can be gained only by actually working, the judge said, and erasure of attendance points is one of those benefits.
Result: You can use the point system, and the system for erasing points, as long as you apply the system fairly to all employees, even those who have taken FMLA leave.