July 16, 2011

Verizon to pay $20 million to settle EEOC disability lawsuit over attendance policy

Posted in Absenteeism, Attendance, Disability, Discrimination, Interactive Process, Job Abandonment, Leaves of Absence, Leaves of Absence, Reasonable Accommodation, Sick Leave tagged , , at 11:11 pm by Tom Jacobson

One size does not fit all when it comes to sick leave and attendance policies.  Verizon Communications recently learned that $20 million lesson in a nationwide disability discrimination lawsuit filed by the Equal Employment Opportunity Commission under the Americans with Disabilities Act.

At issue was Verizon’s “no-fault” attendance policy.   Under this policy, Verizon employees who accumulated “chargeable absences,” were placed on a disciplinary step, and that could eventually result in more serious disciplinary action, including discharge.  According to the EEOC, the problem was that when applying this policy, Verizon failed to make exceptions for employees with disabilities, and this lead to a failure to reasonably accommodate them under the ADA.

In the consent decree (which is still pending court approval), Verizon agreed to pay $20 million.  In addition, Verizon agreed to a number of other non-monetary concessions.  For example, Verizon agreed to revise its attendance policies, provide mandatory training on the ADA, post a notice about the settlement, appoint an internal consent decree monitor to ensure its compliance, and report to the EEOC about all employee disability discrimination complaints relating to the attendance policy or Verizon’s compliance with the consent decree.

The case illustrates that employers who are subject to the ADA must not overlook leaves of absence as a reasonable accommodation.  According to Spencer H. Lewis, Jr., Director of the EEOC’s Philadelphia District Office, “This [Verizon] settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.”  And, as noted by EEOC General Counsel P. David Lopez, “Hopefully this nationwide decree will further public awareness of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.”

For more information about this article, see Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit, or please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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September 28, 2010

HR policy development, part 3 of 3: attendance and job abandonment under the FMLA and USERRA

Posted in Absenteeism, Employee Handbooks, Family and Medical Leave Act, Job Abandonment, Leaves of Absence, Leaves of Absence, Uniformed Services Employment and Reemployment Rights Act tagged , , , , at 10:55 am by Tom Jacobson

In the first segment of this three-part series, I noted that having and following a well-written sexual harassment policy can help provide an effective defense to sexual harassment claims.  In the second installment, I pointed out how reasonable personnel policies can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.  In this final installment, the topic is leaves of absence under the Family and Medical Leave Act (FMLA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA); the case is To v. US Bancorp.

In the To case, US Bank had strict “Reporting Absences” and “Job Abandonment” policies.  The policies required certain call-in procedures and return-to-work documentation.  To missed work for medical reasons and for National Guard service, but he failed to follow the bank’s call-in and reporting procedures, so the bank terminated his employment.

To sued US Bank under the FMLA and USERRA, but the court threw out his case.  With regard to To’s FMLA claims, the court noted that To had not complied with the bank’s policies for reporting absences, and “Employers who enforce such policies by firing employees on FMLA leave for noncompliance do not violate the FMLA.”

To’s USERRA claims were based in part on a portion of USERRA which states that reemployed service members “shall not be discharged from such employment, except for cause” for specified periods of time.  After noting that under USERRA, “An employer has just cause to terminate an employee who does not comply with a known company policy,” the court held that To’s failure to follow US Bank’s handbook policies gave US Bank just cause for To’s discharge.

Read together, the To, Gaustad and Cross cases all underscore the importance of developing and applying effective employment policies.  Such policies not only frame the expecations that employers may have for their employees, but they can also provide important defenses to many employment-related claims.  In sum, developing and applying effective employment policies are crucial to business success.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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