Employment Law Daily Class action alleges Walmart’s ‘no-fault’ absence policy violates New York Pregnant Workers Fairness Act
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Wednesday, August 1, 2018

Class action alleges Walmart’s ‘no-fault’ absence policy violates New York Pregnant Workers Fairness Act

By Pamela Wolf, J.D.

Walmart is facing a systemic challenge to its “no-fault” absence control policy due to its impact on women who need leave for pregnancy-related illnesses or medical care. The policy violates the New York Pregnant Workers Fairness Act (PWFA), according to the class action complaint filed on behalf of two former Walmart employees who were fired under the policy after their pregnancy-related hospital visits were deemed “unauthorized,” triggering their termination.

The retail giant maintains an absence control system “that punishes workers for any unscheduled absence, regardless of whether it may be protected by law,” the complaint alleges. The system is especially harmful to pregnant workers, such as the named plaintiffs, who incurred disciplinary “points” for time they each took off for pregnancy-related conditions, despite the fact that such leave is explicitly protected under New York State law, according to the complaint. Those points were later used as a basis to fire them, which demonstrates that “Walmart is both flouting the law and frustrating its purpose of protecting pregnant New Yorkers from being forced out or fired when they need a temporary, reasonable accommodation in order to stay on the job,” the complaint contends.

Challenged policy. The company’s absence control policy allegedly assigns “points” against hourly employees if they miss a shift, arrive late, or leave early without prior approval. Employees who accumulate a certain number of points can be disciplined or fired. Walmart enforces this policy at its stores across the country, the complaint alleges.

Since 2016, the PWFA explicitly guarantees pregnant workers the right to reasonable accommodations for any pregnancy-related conditions, including leave for medical care, according to A Better Balance, which filed the suit on behalf of the discharged employees. The retailer violated the plaintiffs’ rights under the PWFA when it was aware they were pregnant, knew they needed time off for their pregnancy-related conditions, and then refused to authorize their absences for pregnancy-related conditions without having first engaged in any interactive process to determine whether doing so would have been an undue hardship, and ultimately fired them for those absences, the complaint asserts.

Fired after pregnancy-related emergencies. The complaint alleges that both employees were fired after pregnancy-related absences. One of the employees was a jewelry associate at a Walmart Supercenter in Albion, New York. In March 2017, she learned she was pregnant; within weeks she allegedly began to suffer from severe pregnancy-related nausea. She vomited continuously for three days and became dehydrated. The employee allegedly called into her store before her shift and spoke to a manager to let her know she was worried about her pregnancy and needed to go to the hospital. The manager purportedly said it would “count against [her].” The plaintiff decided to go to the hospital, where she allegedly spent four hours unable to keep down any medication until she received fluids intravenously. When the plaintiff returned to work for her next scheduled shift, her manager fired her, telling her that the absence was not excusable and that “We [referring to Walmart] don’t take doctors’ notes,” according to the complaint.

The other employee, who worked in the apparel department at Walmart, learned she was pregnant in December 2016. She alleges that in January 2017, she began to feel dizzy at work and feared she could be having a miscarriage. When she told two managers that she needed to go to the hospital, she was allegedly told it would be “marked against [her]” if she left her shift early. The plaintiff left and went to the hospital. When she returned to work with a doctor’s note, one of her managers put up her hand to stop her and said, “I don’t want that,” according to the complaint. The employee received half a point for that absence. Allegedly, a few months later she woke up vomiting blood and called the store to tell them that she was going to the hospital on the advice of her obstetrician and that she would need to miss her shift. Her managers purportedly told her she would incur a point for her absence and that this time she would have “too many points” and would be fired. The plaintiff went to the hospital, and when she returned to Walmart for her next shift, the company allegedly fired her.

Relief sought. The complaint seeks declaratory judgment that Walmart’s actions, conduct, and practices are unlawful, as well as an injunction prohibiting further engagement in such unlawful actions, conduct, and practices. The complaint also asks the court for monetary and/or economic damages, including loss of past and future income, wages, compensation, seniority, and other benefits of employment, plus other monetary and/or non-monetary damages, including loss of income, reputational harm, and harm to professional reputation.

“Walmart’s ‘no-fault’ absence control policy flouts New York’s pregnancy accommodation law by punishing pregnant workers for lawful absences,” Dina Bakst, Co-President and Co-Founder of A Better Balance, said in a release. “No pregnant worker, many fearing miscarriage, should be fired for seeking emergency medical care. Walmart must immediately change its policies to comply with this law and ensure that no pregnant worker is forced to choose between a healthy pregnancy and a pink slip.”

The lawsuit, Hoover v. Wal-Mart Associates, Inc., was filed in New York State Supreme Court, Orleans County.

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