How related leave policies can violate the FMLA

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.

Key to remember: Not only can FMLA policies and practices violate the law, but policies that revolve around FMLA leave, such as attendance policies, can also.

Schobert v. CSX Transportation, Inc., Southern District of Ohio, No. 1:19-cv-76, November 15, 2024.