More companies use ‘point’ system for absences: Is it legal?

A lot of employers have begun using a system known as “attendance points” to penalize, and even fire, employees who are absent a lot. Recently, some employees have challenged the legality of such a system.

First, let’s define attendance points. They really should be called “absence points,” since under most systems, an employee is charged with points for each absence in a set period, typically a year. Typically, too, the systems set a ceiling on points, such as eight in a year. Hit the ceiling, and you’re fired.

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On the flip side, point systems often allow employees to “erase” points against them if employees work a consecutive number of days. So, let’s say an employee has seven points on his record. The employer may allow the employee to remove four of the points by having a perfect attendance record for six months. And that’s the part of the system that gets questioned in court.

Violate FMLA?
Now, let’s mix all that together with the Family and Medical Leave Act, which mandates that employees must get unpaid leave for, among other scenarios, caring for an ill family member or giving birth. FMLA rules say you must provide the same benefits to an employee on FMLA leave as you would to an employee who’s actually working. For instance, if you have a pay-raise system based on seniority or time in service, the time an employee spends on FMLA leave must be treated just as the employee were working – and the employee gets all the same seniority and time-in-service bennies.

That brings us to the lawsuit of Bailey v. Pregis Innovative Packaging, Inc.

In it, the employee racked up nearly enough attendance points to get fired. Then she worked a few months, took FMLA leave, and worked a few more months. Then she was absent again – which pushed her over the top on points – and the company terminated her.

She sued, saying the time she took on FMLA leave should have been included with the other months she worked, giving her enough consecutive time to have her attendance points erased.

The employer won the case. The reason: There are some benefits that can be gained only by actually working, the judge said, and erasure of attendance points is one of those benefits.

Result: You can use the point system, and the system for erasing points, as long as you apply the system fairly to all employees, even those who have taken FMLA leave.

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  1. Our point system allows 8 points in a year, yet they do not excuse a doctors statement. Even with a doctors excuse point is still given. Meanwhile taking sick time. If all 24 hours sick time for a year is gone vacation time will they then take. Is this legal?

  2. gregory Williams says:

    we have pto at work that they say we can use for sickness, car problems, anything personal, but now here comes the point system the new Gm started we have never done this before and the handbook mentions nothing about this its was supposed to be in effect 03 01 15 but I signed 05 08 15 they give us the points and still use our pto can you tell me why this is legal and why supervisors and managers are exempt if they are sick or late?

  3. Hello I was hired 10/01/15 I’m still in my probation period I started being tardy because of my ride situation. But then I call out on 11/21/15 for the first time ever my supervisor hit me with if you don’t show up it will result in termination. And he said I’ll be at six points but its 9 in the handbook before they can dismiss you. I’ve never called out of work until this day because of my blood pressure and have my migraine headaches. What should I do because I need my job.

    • Julia Rose Scavicchio says:

      Hi Charlisa, sorry you’re having a hard time at this new job. While I don’t have advice for you, perhaps other commentors can chime in. If you’re still stuck, you can pose your question to a popular legal forum here:

  4. Hello everyone I am 36 year MAN whim as work in many fields of tha work force I am was work for a company here in Wisconsin company is kind New here cereal company. I started this job in May 18 of last year not a lot of miss day I can recall three I have left do to get sick at work a number of time thought is was from my kids and THEM going to day .So on top of be little by a lead her Word I quote ya”‘ll act like a bunch of lil a#@ MF kids talk ya’ll 36..I am the only that was that age …four other People are there .my word I control me don’t no control me don’t give fu#& about no one else I am grown man .now she stated no asking u to b here u don’t pay me u can leave the floor on what grown`s then she walk off to get tha supervisor. And after all was done I was off two weeks git move to different shift. And told to sign finale warm about my now label attitude I was told I have by the HR lady now mouth later.after going to the HR tell her I feel I’m b pick on my family who got me the job and I have the lady recorded Saying thing like how do I know the company want me here this is Milwaukee there thousands of job I just try wish I know what to do on top of my shoulder be injured…and I was told my points is why yet I check them one week and it was told by me 5 and a half next week supervisor said and up date I had 10 but from were I check and had to leave half a day and one call in should have put me at 8 and a half like she said one day next day 10 she WORDs nothing after this or it be fired I said ok next morning like I was feeling I was let go CAUSE of points and I have never been throw nothing like this.any type of commites or would be greatly appreciated thanks

  5. judy maxwell says:

    we have a point system for absentees for year end raises . i took fmla and they are giving me points for that. is this legal

  6. Our Company sold, so new policies started coming in. It came to the attendence. With the old company it was if you miss 9 days your fired. We had 2 for 1( if you missed a day and took the next working day if was a free day). It was rolling attendence, so 1 year from the day you took off is when it fell off. So now we have if you miss it is 2 days against you, after 60days from your last days absent 2 will fall off. but here is is kicker, they did take everybody back to 0 to start this new attendence policy. So if you had 6 days against you with the old company then you have 6 with the new. some of our absent days are over a year before they fall off. is that legal?

  7. I worked in a company that has the point system. I got a safety write up for injuring my leg that was a nick on my shin on top of a blood vessel that turned into a bleeder. I worked that department for three years and kept my points at 0 the whole time.and then I contacteda nasty stomach virus. If it was not for my 240 hours of sick time built up. I would have been fired. But I kept hearing rumours that turned out to be true that some people were racking up 16 points and more,and do to favoritism and ten years in those in question were not getting fired. This is too common,and I’ve seen really good employees just starting out leave because of it.

  8. I think it all boils down to good work ethics ,
    You’re either a good employee or not I don’t think the point system is going to make any difference when it comes to that. There will always be a few bad apples in the bunch …

  9. Vicki Harless says:

    I used a paid vacation day on a 40 hr week restriction. My employer fired stating that a paid vac doesn’t count towards 40 hrs and I was supposed to work Sat and didn’t. Which pointed me out. There is nowhere in the handbook that states a paid vac doesn’t count towards 40 hrs. It only states that 40 hrs is hrs worked including paid a absences.

  10. I just started work at a company that uses a points system. I have no prob,em with this because I understand chronic absences can be bad for companies. However, this point system ‘awards’ a point to an employee for every shift missed even if the absence is as a result of one illness if it is one day, one point or in my case I came down with the flu and missed three days. Automatic three points for one illness, I’m allowed 4 before the first level of discipline. It will be 6 months before any of them fall off. I think that points should be given per illness. What this company has effectively done is encouraged employees to come to work sick. Which leads to more sickness. I was surrounded with people who were sick. That’s how I got sick. This particular point policy is flawed.

  11. I work where each employee has 20 points until they are terminated…but they still point me even after I bring in a drs excuse. I’m currently at 16 points and the first one doesn’t fall off until June. I really don’t want to lose my job!!

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