Key to remember:
How related leave policies can violate the FMLA
11/25/2024
Attendance and pay policies in the crosshairs
In late 2017, two employees, Tony and John, took leave under the federal Family and Medical Leave Act (FMLA) due to health issues. Their employer was suspicious of the timing and investigated all employees' leave around the holidays. As part of that investigation, the employer temporarily suspended Tony and John without pay. Tony was reinstated after providing proof of his medical appointment, but John was fired due to a lack of evidence supporting his leave.
Employees both sue
Tony and John teamed up and sued the employer, claiming two of its policies violated the FMLA. The first policy deducted points for unexcused absences but reduced the points if employees had a month of perfect attendance.
The second policy offered "guaranteed" pay for on-call employees, even if they weren't called in.
Points policy
In court, Tony and John argued that the points policy was unfair to those on FMLA leave, as they couldn't earn a point reduction. The employer disagreed, stating that the policy didn't negatively impact employees on FMLA leave and that point reduction was a benefit to be earned, not one that must be provided to employees on FMLA leave.
The court disagreed with the employer and said that employers may not penalize employees for taking FMLA leave. Not resetting the perfect attendance clock could be seen as an FMLA violation.
Guaranteed pay policy
The court also found the guaranteed pay policy violated the FMLA as it deducted more pay from those on unpaid FMLA leave than from those on other types of unpaid leave.
Equivalent leave requirements
Lastly, Tony and John argued that the policies overall treated other leave more favorably than FMLA leave.
The employer admitted that two other types of unpaid leave were eligible for the attendance credit, which the court found hard to reconcile with the treatment of FMLA leave.
The court didn't rule in the employer's favor, leaving the final decision to a jury unless the parties reach a settlement.
Schobert v. CSX Transportation, Inc., Southern District of Ohio, No. 1:19-cv-76, November 15, 2024.
Not only can FMLA policies and practices violate the law, but policies that revolve around FMLA leave, such as attendance policies, can also.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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