July 30, 2020

Warren Investigates Report that "No Fault" Attendance Policies at Large Corporations Punish Workers for Taking Legally-Protected Leave

Report finds that many companies' policies "fail to inform workers about their legal rights to take time off without punishment for certain illnesses, health conditions, or disabilities, or for the need to care for an ill loved one under state, local, or federal law"; Warren investigation seeks additional information on company policies that put workers at risk

Letter to Walmart | Letter to FedEx | Letter to 3M | Letter to Kroger | Letter to Conagra

Washington, DC - United States Senator Elizabeth Warren (D-Mass.), Ranking Member of the Senate Banking, Housing and Urban Affairs Subcommittee on Financial Institutions and Consumer Protection, sent a letter to five companies -- Walmart, Conagra, FedEx, 3M, and Kroger -- requesting information about their attendance policies, and whether the companies are appropriately providing information to workers regarding their rights under federal law to take time off without punishment. 

"No fault" attendance policies generally operate by having workers accumulate "points" or "occurrences" for missing work, arriving late, or other attendance-related matters; after accumulating a certain number of "points," workers face discipline up to and including termination. A June 2020 report by the organization A Better Balance revealed that many companies' "no fault" attendance policies "reliably fail to inform workers about their legal rights to take time off without punishment for certain illnesses, health conditions, or disabilities, or for the need to care for an ill loved one under state, local, or federal law." As a result, workers can face discipline and termination for legally-protected workplace absences, such as leave related to pregnancy or qualifying disability-related absences. This is a particular concern during the novel coronavirus disease 2019 (COVID-19) pandemic, because workers may feel pressured to go to work sick if they believe or are told they will be punished for taking sick leave, even if that leave is legally protected.

"Punishing workers for exercising their workplace rights is a violation of the law, and I am seeking to ensure that your company's attendance policies clearly explain workers' rights and do not knowingly or unknowingly lead to the illegal discipline or termination of workers taking legally-protected leave," Senator Warren wrote.

Federal civil rights and labor laws provide workers with the right to take leave from their jobs for certain medically-necessary needs. However, the report also found that companies with "no fault" attendance policies regularly provide incomplete or incorrect information about workers' federally-protected rights to leave under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), as well as rights under state and local sick leave laws. 

"Compounding this problem, many workers don't have access to the attendance policies that govern their employment," Senator Warren wrote. "These policies should provide information about what leave is legally protected so workers understand their rights; not being able to access written policies makes it even harder for workers to know that their rights may have been violated, and to challenge illegal discipline or termination."

"We applaud Senator Warren for investigating major employers who use points-based attendance policies. These "no fault" attendance policies routinely mislead and misinform low-wage workers for lawful absences, particularly workers who are ill, pregnant, or have chronic medical conditions," said A Better Balance Co-Founder and Co-President Dina Bakst. "As the pandemic rages on and millions of workers, disproportionately Black and Latinx, are still required to show up for work or risk losing their job, companies must be transparent about their policies and fully compliant with our nation's civil rights laws."

Senator Warren has requested responses from each of the companies and a copy of each company's attendance policy for review no later than August 11, 2020.

Senator Warren has introduced and supported numerous proposals and bills to ensure workers have strong protections. In October 2019, she re-introduced the Schedules that Work Act with Representative Rosa DeLauro (D-Conn.) to help ensure that low-wage employees have more certainty about their work schedules and income. In February 2020 she introduced the Part-Time Workers Bill of Rights with Senator Cory Booker (D-N.J.), which would make more part-time employees eligible for family and medical leave. In April 2020, Senator Warren and Representative Ro Khanna (D-Calif.) proposed an Essential Workers Bill of Rights, which includes universal paid sick leave and family and medical leave. Senator Warren is also an original cosponsor of the PAID Leave Act, legislation that would provide universal paid sick leave and paid family and medical leave during the COVID-19 pandemic.