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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Comments

  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?

    • No that not legal its a way of having cheap labor and more foriegn workers

      • Gingervitis says

        So my job does the same with a doc excuse (you still get the point with the excuse and any recover time is a point each day) anything over 5 points is termination. Is this legal because at one time they said get the excuse turned in before 10 days after the missed day and the point is void now that’s not the case. What can I do?

  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: reddit.com/r/legaladvice

    • Cliff Allen says

      Okay it’s up to you to find a way to work, it’s not up to your employer to ensure you get to work on time. If you truly needed or wanted your job you would have found a way to work & gotten there on time. When I first started my job 31 years ago, I had attendance issues. They gave me one warning, and that’s all it took. I’ve been with the company 31 years and now I’m manager…

      • Cliff, Absolutely correct. If you want a job show up a bit ahead of time and don’t miss work. A job is not a right. Missing work, especially in a small company hurts everyone in it.
        Its hard to find good employees. But if you want to stick out and be looked at for promotions…show up before your scheduled time and leave 5 min late.
        I

        • Cliff if you’re stuck in a bad storm with the roads closed and no way around because its a hazard. what do you do? My former employer had a point system and still penalized us during a national emergency and we couldn’t do anything about it. if we drove to work, we risk’d dying or damage to our vehicles. And for what? The company won’t pay our medical bills and the fixes for damage. Just proves that “Good employees” are only valued for what they can do for your company. You people sicken me.

          • I think it’s ridiculous that they’re are no considerations. The further away you live exponentially the more potential delays. Traffic, road conditions, weather, detours, I can’t always predict the future, however well intentioned. Perhaps if we give people a break and be more flexible we won’t have to kill each other on the road trying to beat the clock! This isn’t nazi Germany…or is it?

          • The one storm or one flat tire didn’t cause the attendance issue. There has to be structure and that is why you shouldn’t miss unless you HAVE to.

          • It wouldn’t be the company’s fault. You chose to get the job that is far from where you live, not the company. That is one of the issues of working far from where u live. But points are there so you can miss work. Sure u may can penalize, lose bonus for not coming in. But the ones do go in, receive no points, or bonus. I personally don’t go in, as I save my for when it is bad weather. 🙂

  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 …

    • That’s the guilt trip corporate America has baited you with and you believe it! Your not a good person, worker, employee if your not…on time, hardworking, eating their corporate baloney or drinking the corporate kool-aid! The corporations mission is to make money off of your slave labor, keep you out of power (decision making, power positions, defining policy) and beholden to their ruthless policies so they are insured a large labor pool. Your just a warm body. Oh and they like it when you villify your naughty coworker, or whomever as long as you don’t realize how much they’re stealing from you,(tax breaks, loopholes, not paying decent wages or pensions, strict unwealding rules, special treatment for privileged people etc).

  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.

    • I completely agree with you on this!!

    • Yes very flawed but see how they want to make you feel like a bad employee! This is insane!
      Call you congress people, all of them a lot and make your point to get this changed! Corporations are not people and shouldn’t have more power than the gov. Lets get our government, us, to make them sick!

  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!!

    • Elias Birnbaum says

      Where do you work I am in similar situation however my point system is 8 l. I’m going to be at 6.5.

      • Same here, I’ve been with my company for 6 years but since they were bought out we have the new point system, I don’t ever call in or miss a day of work most of my points are for being late from lunch but I had to call in because my son was sick so now I’m at 9.5 points. We are allowed to get 10 before termination. I’m terrified I’ll lose my job so now I won’t go to lunch and am leaving for work over an hour in advance also going to work sick since that’s what we’re forced to do.

        • Keep all your doctor notes and hospital visits if possible. My job we are terminated at 10 points. It takes a year to drop a point….But my job also gives us every year 3 personal unpaid days, 1 personal paid holiday, and we can call in 5 emergency vacations per year. Keep the doctor notes because if you get terminated you can apply for unemployment and probably get it because with the doctor notes you can claim that you missed work under circumstances that you could not control and that your company does not offer sick days.

  12. Jennifer Torrez says

    My work just started the point system we get 10 points against us and we’re fired but if u don’t miss in 30 days u can have a point taken off.. But my thing is regardless if u have a Dr note or not u still get a point.. Unless u use pto.. My question is is it legal to give u a point if u bring a Dr note.. If so what’s the reason to even go to the Dr for a note..

    • They require a note to get back into work but it really is meaningless and proves nothing. People with viruses don’t always need to see a Dr. The illness runs its course. But today staying home, taking care of yourself and not working when contageous are luxurys. They want you back to work in 2 days so you can make everyone sick, because they run short staffed so they have fewer people and benefits to pay. The whole note thing is just to discourage people from being or staying out. Investigate a leave of absence, not exactly what you want to do when sick. We need to take back our rights and quit getting jerked around by employers. Call your congress members and invite a union organizer to your workplace to see if you can unionize. That’s always been the only way to protect your rights from employers who would have your kids working if they though they could make a nickel! They are really scoundrels with no soul!

  13. Alicia Gandara says

    I have wondered this for years. Our company gives you 7pts when hired. If your late or leave early loose 1, call in after start loose 3, Fmla & illness loose 1, but if they don’t like your paperwork loose 1per day.

    Points take One year from the date of loss to get them back. When you get down to three point the termination warnings begin each warning can stay in your file for year so if you already had a warning even though you may have gotten a point that it would’ve put you back above three your termination morning progresses even further.

    But they don’t offer the same exactly to everyone because there is what we call emergency no pay which we can call our operations line in the event of an emergency and be awarded off for that day and submit documentation so we don’t lose a point however that is based on availability and I don’t want it to everyone. So if a person is using this method they won’t lose a point at all. But not everyone is aware of this program. So not everyone uses it. There for some people lose a point and some people don’t. How is this legal?

  14. Edgar Ferguson says

    Are Veterans Exempt from the point system, if they go to VA appointments, trying to increase their disability, they had gotten in the service? Veterans, should not be docked points when having VS Appointments.

  15. I’m at a company where the point system only applies to the hourly employees not the Employees on salary..yet we weather the elements all year long while they sit in comfortable climate control offices…How’s that even legal…And we also need to give 48hrs notice before taking a vacation or sick day.. But yet they give us less than 24 hours notice that we are mandated to work a Saturday.. And if you don’t show.. There’s a point if you don’t call in.. There 7 points.. After nine.. you’re fired

  16. Hey i work in Maryland which has a paid sick leave law.
    I called off from being sick and had to use pto and i got pointed.
    It doesn’t seem fair.

  17. Aurelio Vives says

    The point system was just started at my Job. I called off sick, I was given a point for calling off,and force to use a vacation day on top of it. Is this legal?

  18. Lisa gray says

    I have a job where warehouse employees have a point system but front office employees dont accumulate any points ( no point system). Is that legal? Can you treat employees differently like that?

  19. Personally, I think it is disgusting for any company to use a disciplinary point system.
    First, It adds unnecessary stress to any job. As an employee I can now be punished for doing the right thing, I can be punished for being a responsible employee, and as an employee, no matter how good my work is, if I make even one is take then I get punished. Employers seem to have forgotten we are not robots, we are human and there is nothing more frustrating than to see management make the same mistake and get pay raises instead of point.
    Here are some of the major issues. I get one point If I call-in before my shift and tell my supervisor I am going to be 10 minutes late. Or I get one point if I am late or I get a point if I call off of work. Therefore, If I know before my shift I am only going to be a few minutes late. I might as well take the day off. As an employee I can do the correct thing and tell my supervisor I am running a little late. Yet I am punished for it. What the hell?
    The point system is now more than often being used for more than tardiness. If you leave your post, or desk without permission, or do not make sales quota, or have an unsatisfied customer or any aspect of anyone’s job you can be awarded a failure point. The point system is a system ripe for abuse. Such companies finding was are FMLA, Paying Sick days, terminating older employees who have earned and been given sick time by the company, and creates a hostile work environment.
    Why would you give an employee sick time then use it to fire them?
    Creates a Stressful, Hostile, and unhappy Work environment. Let look at this really quick.
    Why would any company want to use a failing disciplinary system that was first developed to manage maximum security prisoners? A system that when implement has a proven track recorded of increasing violence among prisoners. Because no matter how good of an employee you are, you are treated like a convicted felon.

  20. Samantha Newby says

    I have been at my job for a year and a few months we have a point systum but I don’t get pointed for most but since I got pregnant i get pointed for being in the hospital or doctors appointments for the baby they didn’t start treading me bad til I told them I was pregnant is this illegal

  21. Melissa Chambers says

    We have a point system and don’t have any pto, fmla, or pay vacation time… Nothing is excused Dr note, death, court… Etc… Nothing…
    is that against the law

  22. My company has a 10 points per year. An incident srose where I was out an accumulated 10 points. HR told me they take off a quarter of a point a month. If I’m so much as late I’ll be terminated. Question is Would it be better to give them two week notice and reapply in a year rather than risk an occurrence in four months?

  23. Steven McClure says

    My company has a point system too. We’re allowed 7 points, the 8th is termination. Their policy is 1/2 pt for being 1min to 2 hrs late reporting to work, returning from lunch or break, or leaving 1 min to 2 hrs early. 1/2 pt for forgetting to clock in or out. 1 pt for missing 2 hrs of work. 2 pts and written warning for no call no show (2 of these in a 2 month period is a voluntary resignation). 1 pt for being sick 2 consecutive days not to exceed 5 consecutive days with an authorized note from a physician. After 5 consecutive days (if not eligible for FMLA) each additional day is 1 pt regardless of physician authorization. Points don’t fall off for a full calendar year of when they were given.

    I got hurt at work on Wednesday night (don’t really know what I did or how I did it) and then called in and used a paid vacation day for Thursday. Told them I had hurt my back Wednesday night and that I was going to the doctor Friday. Doctor said I had strained the muscles in my lower back and gave me a note for Thursday, Friday, and Saturday (which was a mandatory overtime day) and released me back to work on Monday. I called my supervisor Friday evening and told him I had a note and that he didnt release me until Monday and that I’d bring it in then. Everything was fine all night Monday when I went back, and my supervisor came and told me the head of the HR wanted to see me b4 I left. I went to the front and talked to her and she is forcing me to see “their doctor” and told me they were filing a worker’s compensation claim even though I said I didnt want to, made me fill out an incident report, and forced my supervisor to conduct an investigation into why and how I got hurt, even though I’ve told them repeatedly that I don’t know and don’t want worker’s compensation. And bc of all that, I ended up clocking out late. 7:47 instead of 7:30.

    Being punished for being honest and following their call in procedures. I could go on about all the seedy crap they do, but this was all about point systems and how unfair or flawed they are.

    • Steven McClure says

      I forgot to mention in my previous post that we also do not get sick days (paid or unpaid), unpaid “free days” (personal days), or unpaid time off even though it’s on the time off request forms (they always deny it regardless of the reason you give for asking for it). Vacation is the only way you can miss any amount of work without accruing points, and they can even deny that and usually don’t give a reason why.

      • Steven McClure says

        Sorry lol, just thought I should add that they gave me a point last year for taking off for my wedding bc I didnt have vacation left, even though I requested it off 3 months in advance and asked for unpaid time off that they denied.

  24. We have had a ten point system through three employers. The first two said work three months straight, and one point falls off; work six months straight and they all fall off. The present company changed that to, each point falls off after a calendar year that it occurred, regardless of days missed up to ten. Now we have a 28 day system where you have to work 28 straight ‘working’ days for the first point or half point to fall off. I have 3.5 points, I have to work a continuous 112 days for them all to expire. Within those 112 days, if I’m late or absent due to a flat, car trouble, wreck, or family emergency, that time starts over again . We have a Union, and I believe theat the goal is to fire the senior (highest paid) workers and have nothing but New Hires and “work release” inmates, this will eliminate the Union’s presence.

  25. The company I work for has the point system. We get 8 the 9th is termination . For almost a year I never missed a day , then I had to miss 2 days equal 2 points. even though I used PTO time. then I was Late that is 1/2 point so now 2 1/2 points. this was in July, now it is Nov. and I have been sick for two days, so now it is 4 1/2 points. Having a Dr. statement does not matter, still points. This company starts with a W and ends with mart. This can’t be right or legal ! Any answers.

  26. The company I work for started a 10 point system 11/2/18. Unfortunately I went to the ER on that day and missed the following Monday because at my follow up with the doctor I was released to work on Tuesday.
    I got 2 points for each day for not giving 12 hour notice and 1 point for each day missed.
    I have a total of 6 points right off the bat! Hospital and doctor notes are of no concern to employer. Praying I don’t need surgery or I will have to choose between job and health. I think the point system is ridiculous and cowardice. Punish the ones abusing the system, not the ones who work long hours and hard for the company.
    Moral is of the past. 😣

  27. My company has a 8 point system 9th one your terminated, but if your only at 6 points can they still fire u for attendance even tho u haven’t reach 9 yet?

  28. My employer has the point system 6 points til your fired. But now they have started giving points if you can’t work over 4 hours of your shift. I can’t work the 4 hours over bc I have no one to watch my children in those hours so to help I come in 4 hours before my shift to do my overtime but the boss says now if you can’t stand over when someone calls in then you get a point. I have worked for this company 8 years with no points the only issue I always come in early two or three days a week but now my job is threatened bc I can work over is this legal?

  29. My Call Center was sold to a company that gives us 30 points over 90 days. The down side is they take away a point an hr or fraction thereof. For instance, Feb. 6 the buses closed down at 7pm and I was scheduled to work until 9. I ride Share-A-Fare – the disability bus, which is a part of the Metro System – so I had to leave at 5:50 when my bus picked me up. I got 4 points.The next day was to bad to get in so I was pointed 1 point per hr of my shift, another 8 points. Today, the 15, the bus came and actually got stuck outside my apt. So they said no, we will not take you to work because it is still snowing and by the time you get off it will be worse than this. So there’s another 6 points for the 6 hour shift I was scheduled for. That is 20 hrs if they don’t charge me double because of calling off the day of.

    HR people, is this even LEGAL!

  30. Question…
    How long does an employer have to give you a point or take personal time after you miss a day??

  31. Antonio gomez says

    I was curious if anyone has a answers for me i live in California and my job has a 21point system and well im already at 20 i believe second stage of action they say 21 is a final write up and well i just got injured at work with a umbilical hernia due to lifting 100-120 pounds of food which my hiring manager makes us do and doesn’t even offer to help even when he sees and knows we need help lifting well i have doctors notes with my home/work restrictions and i filed for workers compensation well i went in today because i was supposed to return today and i was told to just go head and go home because there wasnt much i could do around there because of my restrictions im assuming i dont know if there is something fishy going on or if they are planning or can fire me at all need answers please?

  32. I was fired for having 8.5 points on me even when I was sick had to go to hospital I left work early and receive 1 pt and when my I have no babysitter and my employee told me to leave my son home by hisself and come into work or even when I’m sick with flu they wanted me to come into work and what doesn’t help is when u have a manager that’s looking for anything to add more points on you by time I know it I had 8.5 pt and now I have no job and might be homeless with my kids what can I do

  33. Kimberlee Martinez says

    My job has a point system as well and when it is slow they offer to leave early and the managers are suppose to put it in the system that you left early and time you left so you won’t receive a point. Well I was recently terminated for too many points and it was on the days I went home early because it was too slow but the managers did not put it in the system so I received points and was fired for it. I think the point system has too many flaws

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