No-Fault Attendance? In light of the EEOC/Verizon settlement, what's the point?
Are no-fault attendance policies to go the way of the horse and buggy?
Employers would do well to ask themselves that question, in light of the recent $20 million settlement between the U.S. Equal Employment Opportunity Commission and Verizon Communications. First, let's debunk a few erroneous assumptions about the settlement:
*We can blame this on the overly-aggressive, anti-employer Obama Administration. Nope. Actually, the case began with a Commissioner's charge filed in the fall of 2008, when George W. Bush was still in office.
*Well, then, we can blame it on that horribly-liberalized Americans with Disabilities Act Amendments Act. Nope again. The ADAAA didn't take effect until January 1, 2009. The charge against Verizon was already pending by that time.
*OK, whatever. But this still isn't any big deal. I've read all those articles about how employers need to be flexible with their leave policies, and I'm trying to do that now. Great! But that isn't what the Verizon case was about. The case was about charging absences under a no-fault attendance policy to employees who missed work because of medical conditions that were "disabilities" within the meaning of the ADA. It does not appear* that medical leaves were at issue. Exempting ADA conditions from no-fault attendance policies is a huge deal.
*Facts are sketchy because the parties reached an agreement before the EEOC actually filed suit. The lawsuit and the proposed consent decree that will settle the lawsuit were filed at the same time.
*Yawn. The Family and Medical Leave Act already says you can't charge no-fault absences against someone who's out for an FMLA-qualifying reason. True. But the EEOC's interpretation of the ADA(AA) means that no-fault absences shouldn't usually be charged if the absence is due to a disability even if the employee does not qualify for FMLA leave -- whether it's because she hasn't been employed for 12 months or 1,250 hours, or because he's exhausted his entitlement already.
*Well, anyway, the EEOC is a big dog and gets settlements like this all the time. Not true. This is the biggest settlement in the EEOC's history, according to the agency.
*Well, then, Verizon is a great big wimp. Maybe yes, and maybe no. I vote no, although I can't help wishing that Verizon had put the EEOC to the test. The threatened litigation was against 24 subsidiaries nationwide on behalf of employees represented by the Communication Workers of America (who, by the way, has an iPhone app -- they don't call 'em "Communication Workers" for nothing!), and in addition to the Commissioner's charge, charges were filed by the CWA and individual employees. Litigation of this scale brought by an agency of the federal government promised to be astoundingly expensive and disruptive, even if Verizon were to eventually win. As part of the settlement, Verizon got a pretty good deal (considering) on how to apply its attendance policy in the future. The proposed consent decree (see paragraph 20.03) at least allows the company to consider whether the employee or designee followed the company's procedures, whether the absences have been or are expected to be "unreasonably unpredictable, repeated, frequent or chronic," and whether excusing the absences would be an undue hardship.
You digress. What about your original question? Oh, yeah. Sorry. In my opinion, employers should seriously reassess the utility of no-fault attendance policies. The FMLA has prohibited charging of no-fault absences for a long time. Most employers I know voluntarily refrain from charging no-fault absences to employees who are out because of work-related injuries or illnesses. Now, it appears that the EEOC's position is that exceptions have to be made for "disabling" conditions, and with the ADAAA, that means a lot of conditions. So, with all these exceptions, an employer has to ask: Is there any point to having a "no-fault" attendance policy?
In the old days before no-fault policies, certain types of absence were treated as "excused," and other types of absences were treated as "unexcused." There were lesser or no penalties for excused absences but fairly severe penalties for unexcused absences. Most employers abandoned these policies at least 20 years ago, before the FMLA and the ADA were gleams in a Congressman's eye, because it took too much effort to police them, and it made sense to treat employees as adults. In light of the Verizon settlement, employers may want to consider returning to the more-paternalistic "fault-based" attendance systems.
What do you think? Talk amongst yourselves.
Comments (3)
Read through and enter the discussion by using the form at the endjob interview answers - May 31, 2012 3:09 AM
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Vince Glover - December 29, 2012 2:37 PM
I don't feel that the No Fault Attendance is good because it is used in my opinion for unjust reasons when needed. For example: me and two other employees were 15 minutes late one evening due to an accident on the interstate that caused a stand still. We all arrived at work the same time, and shared the same story about our delay. Relayed that to our management, and were issued 4 attendance points for being tardy and not calling up to and hour ahead of incident. First of all how are you supposed to know before you leave home that you will be delayed on the interstate due to an accident. I was already being retaliated against, so naturally they wanted the points to stick to make it hard for me. I told the other two guys if I wasn't involved they would have been excused. But anyway we complained to Human Resources and the points were removed. with exception only. Because thats the policy. On another job I had people were late due to very dangerous weather. (Ice Storm) And a lot of folks were late by a few minutes due to the inclement weather. But we were still punished by this policy, and given points. We could have all been injured or even killed, but these companies these days don't seem to care. Very disturbing!
Robin E. Shea - January 2, 2013 6:27 AM
Thanks for writing, Vince, and happy new year! Most employers who adopted no-fault policies gave employees more "occurrences" to make up for the fact that every absence was going to result in some type of penalty. (This was before the Family and Medical Leave Act made that impossible.) One employer I know allowed employees to get 45 points a year before termination, with three for a full-day-or-longer absence and one for each tardy or leaving early, which meant you really had to have an attendance problem before you were at any risk. The idea was that the employer no longer had to engage in the kind of "adjudications" that you describe in your comment.
It made sense at the time (early 1990s), but not so much any more, now that so many types of absences are legally protected and can't be penalized anyway. Employers have to "adjudicate" the reason for employee absences anyway, so why not revert to a "for cause" system? But if employers choose to do that, they will probably not allow nearly as many "unprotected" occurrences as they would under a no-fault system.
By the way, even today, most employers will be tougher on a failure-to-notify offense than they will be for the absence or tardy itself. I don't know whether you and your co-workers had cell phones and could have called in that there was a bad traffic jam. I realize you may be in a state where it's illegal to make a cell phone call while driving, but I suspect the employer might say you should have pulled over onto the shoulder and called in the tardy while you were sitting in traffic. In any event, I'm glad that your HR department gave you the benefit of the doubt. And I agree with you that in the event of an ice storm, an employer should cut employees some slack for safety reasons unless the employees are emergency responders.