At Los Angeles Employment Attorney we receive numerous calls from employees who have found their pay docked even though they were on approved Family Medical Leave Act status or out for doctor appointments for a covered (and known to the employer disability, such as chemotherapy). In 2011 Verizon was forced to pay $20 Million to the EEOC which required it to change its “no fault” attendance policies. The company was charging disability-related absences to the employees as “chargable”. The year before this same good corporate citizen had to pay over $6 million dollars in a class action in which their family and medical leave policies were also challenged.
The employer’s good faith belief that a leave does not qualify is not a defense under the law; rather, the burden rests with the employing entity to determine whether a leave qualifies as protected. Reeves vs. Safeway Stores, 121 Cal. App 4th 95, 110 (2004 ); Cal Code Regs tit. 2, Sections 11091, 11094. While it is a rare procedural gambit for the plaintiff and his attorney, courts have actually upheld summary judgment for the employee when use of protected leave (including California’s Family Rights Act Leave, enforced by the Department of Fair Employment and Housing) is chilled by counting that time against the employee.
On the other side of the absence ledger, though, courts have not allowed employees to accrue time credits while on leave for a protected reason. Although you as an employee may not be denied a benefit while on leave, neither can you accrue benefits that are earned only by time spent on the clock. Bailey vs. Pregis, 600 F3d 748 (7th Cir. 2010)(not a California case).
What if the medical condition or disability simply requires the employee to report to work late, ie, is tardy? in Holly vs. Clarison Industries, LLC 492 F.3d 1247 (11th Cir. 2011), the court held that it is unlawful to “dock” employees for lateness because of exercising rights to such things as jury duty, reporting crime, taking on military duties or engaging in religious practices. It seems that a California court would conclude that “tardies” which injure an employee’s attendance record for disabilities would be held illegal.
Finally, in a landmark California case, Roby vs. McKesson, 47 Cal. 4th 686 (2009), our Supreme Court held that an employer must not subject employees with disabilities or medical conditions which might require several consecutive, unexpected, absences close in time to each other, to adverse treatment. In essence, this “flawed” attendance policy operated to the disadvantage of the worker.
A writer recently referred to the employer’s duty as bringing (along with an employment law guru in the HR department) a “compassionate professionalism” to the determination of what is chargeable to an employee and what is not. Employees who struggle to stay off of disability and welfare should be given every indulgence of credibility as they work through their medical issues. Let us know if your employee rights have become your employer’s wrongs! Call anytime. 877 789 9707. Steve