Court Takes Points Off for Employer’s FMLA Violation

Employment Law

An employee’s lawsuit alleging violations of the Family and Medical Leave Act (FMLA) will move forward after the U.S. Court of Appeals for the Sixth Circuit found the employer’s point system effectively violated the plaintiff’s statutory rights.

Automotive supplier Ventra Sandusky operates a manufacturing facility in Sandusky, Ohio. During Jeremy Dyer’s employment as a technician at Ventra, the company had a no-fault attendance policy pursuant to a collective bargaining agreement.

The policy assessed between 0.5 and 1.5 points for absences, depending on whether the employee called in to report the absence and whether the employee was absent for the entire shift or only part of it. Progressive discipline was imposed at various thresholds along the point system, and once an employee accumulated 11 or more points, she or he was terminated.

Ventra allowed employees to reduce the number of accrued absence points by 1 point if they had perfect attendance for 30 days. The policy treated paid time off for vacation, bereavement, jury duty, military duty, union leave and holidays as days worked toward the 30-day perfect attendance record and such absences did not stop or reset the 30-day clock.

In contrast, the point-reduction schedule did not count FMLA leave and other kinds of unpaid leave (such as disability leave) as days worked, so that FMLA leave was treated as an absence that reset the 30-day perfect attendance clock.

Dyer used intermittent FMLA leave due to migraine headaches that prevented him from working. While it was undisputed that Ventra approved all his requests for FMLA leave and did not add any points for the days he was on leave, Dyer was terminated in June 2016 for accumulating 12 points under the no-fault attendance policy.

He sued, alleging that by resetting the clock on his efforts to achieve perfect attendance and reduce his point total the employer interfered with his FMLA rights. The district court granted Ventra’s motion for summary judgment but the Sixth Circuit reversed on appeal.

Although the employer’s policy did not formally hinge point reduction on not taking FMLA leave, the practical result was the same for someone like Dyer who relied upon frequent intermittent FMLA leave, the court said.

“It is considered interference for purposes of the Act for employers to use the taking of FMLA leave as a negative factor in employment actions,” the panel wrote. “Resetting Dyer’s perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed. Dyer was prejudiced by Ventra Sandusky’s policy because his ability to remain employed hinged on his not taking FMLA leave.”

In fact, the plaintiff “was eventually fired due to his inability to achieve ‘perfect attendance’ and thereby reduce his total points,” the court said. “Therefore, a jury could reasonably find that forcing Dyer to choose between taking needed FMLA leave and enjoying the bargained-for terms of his employment relationship improperly interfered with his FMLA rights.”

Under both the FMLA and Department of Labor regulations, point reduction can be viewed as an employment benefit, the accrual of which—like the accrual of other benefits or seniority—must be available to an employee upon return from leave, the panel added. In the case of Ventra, the point reduction provided a benefit by affording its employees the ability to flexibly manage their absences and awarding an additional day of allowed absence, akin to awarding sick leave.

Ventra argued that until an employee hit the 30-day mark, she or he had accrued no actual benefit. But the Sixth Circuit disagreed.

“Ventra Sandusky’s reading would allow employers to discourage FMLA leave by creating high thresholds for point reduction that could never realistically be met by anyone taking such leave,” the panel wrote. “For these reasons, a jury could find that Ventra Sandusky’s policy interfered with Dyer’s FMLA rights by not freezing the accrual of perfect attendance during his leave.”

In addition, a dispute of material fact existed as to whether the attendance policy treated unpaid forms of military leave and union leave in the same fashion as FMLA leave, the court said.

To read the opinion in Dyer v. Ventra Sandusky, LLC, click here

Why it matters: The Sixth Circuit decision provides a cautionary tale for employers using a point or similar system to ensure that their policy complies with applicable law. While the employer’s policy did not formally interfere with FMLA leave, the court found that “the practical result was the same” for employees who needed the leave.



pursuant to New York DR 2-101(f)

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