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Helping You Navigate Workplace Issues in California

My Employer Has a “No Fault” Attendance Policy: Now What?


If your employer has a written attendance policy, you need to carefully review all of its terms. Many California employers adopt a so-called “no-fault” attendance policy that assigns points for any unexcused absence regardless of the cause. Under these policies, the idea is that when an employee reaches or exceeds a certain points threshold, they can be fired.

Of course, no attendance policy can take away your rights under federal, state, or local law and are not always legal. For example, if you take leave under the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or California’s Pregnancy Disability Leave (PDL), your employer cannot assign you any points for the days you are not at work. Nor can your employer deprive you of any employment benefit earned prior to you taking any legally protected leave.

Labor Department Issues Advisory Opinion Regarding FMLA and Attendance “Points”

That said, there may be situations where taking leave can affect your standing under a no-fault attendance policy.

On August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued an advisory opinion on this subject. More precisely, the WHD addressed the effect of FMLA leave on the accrual of points.

The WHD issued its opinion in response to a request from an unidentified person. This person inquired about a no-fault attendance policy meeting the following parameters:

  • The employer assigns points to an employee for “tardiness and absences,” except those permitted by law or another company policy.
  • The points remain on an employee’s record for the subsequent 12 months of “active service” to the company.
  • If an employee takes FMLA leave during this 12-month period, the points are “extended for the duration” of said leave.

In other words, if an employee accrues absence points in January 2018, these would normally expire one year later, in January 2019. But if the employee takes two months of FMLA-protected leave from June 2018 to August 2018, the 12-month clock essentially freezes during this time. So when the employee returns to work in August 2018, the points will remain on her record until March 2019.

Under these circumstances, the WHD said there is nothing wrong with this policy, provided the employer gives “equivalent types of leave the same treatment.” The decision to remove points for “absenteeism” is effectively an employment benefit, the WHD said, and therefore an employee who takes FMLA leave cannot be placed in a worse position than someone who takes a similar type of leave.

Does Your Employer’s Attendance Policy Comply with California Law?

It’s important to emphasize the WHD opinion–which is not the same thing as a binding judicial opinion–only covers a narrow question specifically related to the FMLA. It does not mean that an employer who adopts the type of no-fault attendance policy described above is in full compliance with the law. Indeed, WHD has no jurisdiction or authority to interpret state laws like the CFRA or PDL, which may impose different obligations on employers. If you have any questions or concerns regarding your own employer’s attendance policy, and whether it complies with all relevant laws, you should contact a qualified California employment law attorney right away.



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* Cathleen Scott is licensed to practice in Florida only.

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