Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an FMLA claim because the employer’s perfect attendance system (which reduced attendance points under its disciplinary policy) made exceptions for pre-scheduled leave (i.e., holidays, military leave, jury duty, bereavement leave, and union leave), but not FMLA leave. Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6th Cir. 2019). The employer’s no-fault attendance system did not assess attendance points for FMLA absences, but would only “roll back” attendance points after 30 consecutive days of perfect attendance under its system (which did not count FMLA absences in calculating perfect attendance). The plaintiff had been fired under the no-fault attendance policy and argued that he would not have been terminated if the employer had given him credit for perfect attendance when he took FMLA leave. The Court found that “denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.” In short, " FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, [the plaintiff] was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way."
According to the Court’s opinion, the employer utilized a no-fault attendance policy which did not assess points for FMLA absences. The plaintiff exercised his FMLA rights in connection with his migraine headaches, which caused him to miss a few days of work each month. The employer would drop points from an employee’s attendance record for every 30 consecutive days that the employee had perfect attendance. As mentioned, an employee could be absent for various approved absences (like holidays, vacations, bereavement leave, jury duty and military leave) and still get credit for perfect attendance because these issues were treated as days worked However, FMLA leave was not considered to be perfect attendance and was not treated as days worked.
Whenever the plaintiff took a day off for FMLA leave, the 30-day calendar restarted for purposes of calculating perfect attendance. Although taking FMLA leave did not add points to his disciplinary record, it re-started the perfect attendance clock. When he reached 12 attendance points (for non-FMLA issues), he was terminated. His union did not pursue arbitration because his termination did not violate the bargaining agreement. It was undisputed that the plaintiff received all FMLA leave which he requested.
It is considered interference for purposes of the Act for employers to use the taking of FMLA leave as a negative factor in employment actions. 29 C.F.R. § 825.220(c). To prevail on his FMLA interference claim, [the plaintiff] must show that taking FMLA-protected leave was used as a negative factor in defendant’s decision to terminate him. The sole issue on appeal is whether [the employer]’s “Attendance Point Reduction Schedule” violates the FMLA by serving as a “negative” factor in defendant’s decision to terminate Dyer.. . ..
The plain language of the FMLA is clear. “At the expiration of the employee’s leave period, she must be reinstated to her position or to a position equivalent in pay, benefits, and other terms and conditions of employment.” . . . . Therefore, denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave. Put differently, “attaching negative consequences to the exercise of protected rights surely ‘tends to chill’ an employee’s willingness to exercise those rights.” . . . . Resetting [the plaintiff's] perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed. . . . Although the policy here does not formally hinge point reduction on not taking FMLA leave, the practical result is the same for someone like Dyer who must take frequent intermittent FMLA leave.
Based on the language of the Act and the Department of Labor regulations, point reduction can be viewed as an employment benefit, the accrual of which, like the accrual of other benefits or seniority, must be available to an employee upon return from leave. See 29 U.S.C. § 2614(a)(2). The regulations state that “[a]t the end of an employee’s FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began.” 29 C.F.R. § 825.215(d)(1). Whereas an employee is not entitled to “accrue any additional benefits or seniority during unpaid FMLA leave[,] [b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.” Id. § 825.215(d)(2). The FMLA defines “employment benefits” expansively to mean “all benefits provided or made available to employees by an employer, including . . . sick leave, [and] annual leave,” whether provided by practice or written policy. See 29 U.S.C. § 2611(5). Point reduction fits within this definition, because it is both a benefit Ventra Sandusky affords its employees to flexibly manage their absences, and because the reduction of a point effectively awards an additional day of allowed absence, akin to awarding sick leave. Consistent with this approach, the Seventh Circuit has held that “wiping a point off the absenteeism slate is indeed an employment benefit.” Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750–51 (7th Cir. 2010). In other words, [the plaintiff's] FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.
In two separate opinion letters, the most recent of which was issued in August 2018, the Department of Labor applied these regulations to no-fault attendance and point-reduction policies and stated that accrual toward point reduction must, at the very least, be frozen during FMLA leave. In its 1999 opinion letter, the Department of Labor opined that an employer’s FMLA obligation to restore an employee to the same or equivalent position includes the obligation to restore the number of days accrued toward absentee point reduction. . . . . It clarified the point by example: “If the employee had 45 days without a recordable [absence] at the time the unpaid FMLA leave commenced, the employer would be obligated to restore the employee to this number of days credited without an [absence].” Id. In 2018, the DOL reaffirmed the point, approving a policy under which “the number of accrued points remains effectively frozen during FMLA leave.” . . . . Although these letters are not binding, they are entitled to persuasive effect... . .
In addition, [the employer] is not entitled to summary judgment if FMLA leave is treated less favorably than other equivalent leave statuses. The district court held that the policy did not violate the Act because “equivalent” non-FMLA leave also interrupts the 30-day window. But, under [the employer]'s policy, there is a disputed issue of material fact as to what constitutes “equivalent” leave and whether any equivalent leave statuses similarly reset the point-reduction clock. Although neither the FMLA nor its implementing regulations define “equivalent leave status,” the regulations imply that equivalency turns on whether the leave is paid or unpaid. For example, in describing the equivalency principle, the regulations state that “if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave.” See 29 C.F.R. § 825.220(c) (emphasis added). At her deposition, [an] employee, Catherine Cupal, stated that under the collective bargaining agreement, active duty military leave and some forms of union leave are both unpaid leave and yet, unlike FMLA leave, they do not restart the 30-day point-reduction clock.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
