Employer’s No-Fault Point Reduction Plan Interfered With Employee’s FMLA Rights

The U.S. Court of Appeals for the Ninth Circuit has held that Ventra Sandusky’s “point reduction plan” could interfere with employees’ rights to take Family Medical Leave Act (FMLA) leave. Jeremy Dyer alleged that he was terminated for violating Ventra’s point reduction plan after taking periodic FMLA leave for migraine headaches. Under the plan, employees are not required to provide justification for an absence, such as a doctor’s note. Under the plan, between 0.5 and 1.5 points are assessed for absences, depending on factors such as whether the employee calls in to report the absence and if the absence is a full or partial shift. Discipline is imposed at various point thresholds, and once an employee reaches 11 or more points, he is terminated. Some absences (including FMLA leave) are expressly excluded from the point-accumulation system, and it is undisputed that Dyer did not receive any points for taking leave under the FMLA. The district court granted Ventra Sandusky’s motion for summary judgment, and Dyer appealed.

Ventra Sandusky’s point program also provided for point reductions for good attendance. Under the plan, employees who have perfect attendance for 30 days had their total points reduced by one point, but taking leave for one of the permitted reasons keeps the 30-day clock running. This allows employees to remain eligible for the perfect-attendance point reduction when taking paid time off for vacation, bereavement, jury duty, military duty, union leave, and holidays, and such absences did not stop or “reset” the 30-day clock. However, the point reduction schedule did not count FMLA leave, and other kinds of unpaid leave such as disability, as days worked toward the 30-day perfect attendance. Ventra Sandusky did not add points to Dyer’s record because of his FMLA leave, but considered FMLA leave as an absence that “reset” the 30-day perfect attendance clock. Dyer asserted that restarting the 30-day period for eliminating one attendance demerit for intermittent FMLA leave punished the employee for taking that leave, even though the FMLA leave itself did not count toward the 11-point limit.

The Sixth Circuit overturned the district court ruling, remanding the case back to the district court for reconsideration. The Sixth Circuit determined that a jury could find that, by not resetting Dyer’s 30-day perfect attendance clock after he returned to work subsequent to his FMLA leave, Ventra Sandusky failed to restore his accrued employment benefits to where they were prior to the leave, as required by the FMLA [Dyer v. Ventra Sandusky LLC, CA6, Dkt No. 18-3802, 8/8/19].