By Pension and Benefits Editorial Staff
A jury could find that an employer’s "Attendance Point Reduction Schedule," which treated paid time off for vacation, bereavement, jury duty, military duty, union leave, and holidays as days "worked" toward a 30-day perfect-attendance requirement for point reduction purposes, but did not count FMLA or other types of unpaid leave in the same manner, interfered with the FMLA rights of an employee discharged under the employer’s no-fault attendance policy, the Sixth Circuit U.S. Court of Appeals has ruled. Reversing the grant of summary judgment against the employee’s FMLA interference claim, the court observed that the employee was prejudiced by the policy because his ability to remain employed hinged on his not taking FMLA leave.
The employee often missed several days of work per month due to migraine headaches. The parties’ collective bargaining agreement contained a no-fault attendance policy that assessed points for absences and an employee could be terminated after accumulating 11 points. Certain absences, including any FMLA leave, were expressly excluded from the point accumulation system.
Point reduction. Pursuant to the attendance point reduction schedule, employees who have perfect attendance for 30 days have their total points reduced by one. Although the policy treats paid time off for vacation, bereavement, jury duty, military duty, union leave, and holidays as days "worked" toward the 30-day perfect-attendance requirement such that these absences do not stop or "reset" the 30-day clock, FMLA and other kinds of unpaid leave such as disability are not counted as days worked. Thus, while the employer did not add points for absence due to FMLA leave, an FMLA leave absence would "reset" the 30-day perfect attendance clock.
Terminated. The employee used intermittent leave for his migraines and he was not assessed any points for his FMLA approved absences. After he was terminated for accumulating 12 points under the no-fault attendance policy, he sued claiming his employer interfered with his rights under the FMLA because each time he used his approved intermittent FMLA leave, the 30-day perfect attendance clock was impermissibly interrupted and reset, interfering with his ability to reduce accumulated points under the attendance policy. Granting summary judgment against his claim, the district court found that the policy was a benefit to which the employee was not entitled while on FMLA leave.
Negative factor. At issue on appeal was whether the point reduction schedule violated the FMLA by serving as a "negative factor" in the termination decision. The employee contended that if his employer treated his FMLA leave the same as vacation, bereavement leave, or the other excluded types of absences listed in the reduction schedule, he would have had fewer points on his attendance record and he would not have been terminated. For its part, the employer argued that its policy was lawful because it treated FMLA leave the same as equivalent non-FMLA leave.
Noting that denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave, the Sixth Circuit explained that resetting the perfect-attendance clock every time the employee took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed. Thus, a jury could reasonably find that forcing him to choose between taking needed FMLA leave and enjoying the bargained-for terms of his employment relationship improperly interfered with his FMLA rights. “Although the policy here does not formally hinge point reduction on not taking FMLA leave, the practical result is the same for someone like [the employee] who must take frequent intermittent FMLA leave,” the court observed.
Employment benefits. Point reduction, said the court, fits within the FMLA’s definition of "employment benefits" as it allows employees to flexibly manage their absences and because the reduction of a point effectively awards an additional day of allowed absence. And here, while the employee’s FMLA leave could freeze the accrual of attendance it could not reset it. "Upon returning," said the court, the employee "was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way."
Although the employer argued that until an employee has reached the 30-day mark, he accrued no benefit (no actual reduction of an absence point) and thus there could be no benefit to be restored upon returning, the court found this would allow employers to discourage FMLA leave by creating high thresholds for point reduction that could never realistically be met by anyone taking FMLA leave. Thus, said the court, a jury could find the employer’s policy interfered with the employee’s rights by not freezing the accrual of perfect attendance during his leave.
Equivalent leave. Noting that the lower court held that the policy did not violate the FMLA because "equivalent" non-FMLA leave also interrupts the 30-day window, the court found that under the employer’s policy there was a fact issue as to what constitutes "equivalent" leave and whether any equivalent leave statuses similarly reset the point-reduction clock. According to a company representative, under the CBA, 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. "At the very least, then," said the court, "it is a disputed issue of material fact whether active military leave and some forms of union leave are equivalent unpaid leave statuses that are treated more favorably than FMLA leave."
SOURCE: Dyer v. Ventra Sandusky, LLC (CA-6), No. 18-3802, August 8, 2019.
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