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Monday, July 11, 2011

No Fault Attendance Policy Costs Verizon Millions


Alabama@Work
By: Tommy Eden, Attorney

In the largest ADA settlement in EEOC history, a class of hundreds of Verizon Communications employees terminated or disciplined based on a rigid attendance policy, will receive $20 million to resolve a nationwide class disability discrimination settled on July 6 by the U.S. Equal Employment Opportunity Commission (EEOC). The Maryland suit, filed against 24 named subsidiaries of Verizon Communications, said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.

The EEOC charged that Verizon violated the Americans with Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

The ADA prohibits discrimination based on disability. The law also requires an employer to provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer. The EEOC contended that Verizon’s inflexible leave policy denied workers with disabilities a reasonable accommodation to which they’re entitled by law.

The three year consent decree resolves the EEOC’s lawsuit, an EEOC Commissioner charge, a charge filed by the Communications Workers of America, AFL-CIO, and over 40 individual charges filed with the EEOC. In addition to the $20 million in monetary relief, the three-year decree includes injunctions, requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences. Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans.

Common Sense Counsel: Can your no fault attendance policy stand up to the new ADAA Regulations? This 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. The importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA is the key principle on which the case turned. Time to put your attendance policy to the ADAA Stress Test.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.