A Wage and Hour Letter That May Impact the Way You Operate

The Department of Labor Wage and Hour Division recently issued a number of opinion letters pertaining to issues ranging from the Family and Medical Leave Act to its Retail or Service establishment exemption.  For those who are unfamiliar with the Wage and Hour opinion letters, they can offer both a concise legal analysis of wage and hour regulations as well as a window into the current administration’s opinions on how its regulations should be interpreted.  For access to all of the DOL Wage and Hour opinion letters, you can go here: https://www.dol.gov/whd/opinion/guidance.htm.

We’ll be discussing the two opinion letters that are the most intriguing over the next two weeks.  This week’s letter covers the FMLA.  In FMLA 2018-1-A, the division analyzed whether an employer’s No-Fault Attendance policy violated the FMLA.  Under the policy, employees who accrued 18 attendance points due to tardiness or absence were automatically terminated.  Points would stay on an employee’s record for twelve months before being removed.

The company’s policy did not give employees points for absences due to FMLA leave, Workers Compensation leave, or even time off for vacation., The employer, however, would keep the employee’s previously accrued points on the employee’s record for an additional amount of time beyond those 12 months when those types of leaves occurred.  As an example, if an employee was off on FMLA leave for 60 consecutive days, the points that were on the employee’s record prior to the leave would stay on the employee’s record for 12 months, plus 60 additional days.  The question asked was whether such a “penalty” was retaliatory in violation of the FMLA because that is a protected leave right.

The WHD stated that during an FMLA leave, an employee must be allowed to return to his or her same or similar position within the organization, and cannot be retaliated against, and should accrue the same benefits an employee on unpaid leave would be entitled to receive.  In finding that the policy did not retaliate against the employees going out on FMLA leave, the WHD found that the employer’s similar treatment of leaves such as Worker’s Compensation and vacation, saved it from being considered retaliatory, along with the fact that the employee was neither losing a benefit that others had, or gaining an additional benefit beyond what working employees received.

So what is the lesson to be learned?  Well, if you are going to create special exceptions for employees who are going out on FMLA leave, make sure you are creating either the same benefit or detriment for employees who go out on similar, non-FMLA leaves.  As long as you are treating similar leaves the same, the WHD takes the view that you are not retaliating against employees for use of FMLA-protected leave.

No Fault attendance policies can can be a blessing and a curse; they provide a very easy-to-understand bright-line rule for employees who know that if they are absent or tardy a certain number of times, they will be gone forever, but they can also create landmines for employers who do not understand the interplay with statutes meant to protect employees.  If you have any questions on how your policy could hurt you, don’t hesitate to call us at the Wiley Law Office for help.