Walmart and Amazon face legal trouble for using a points system to track and fire employees over absences: lawyers

• Walmart and Amazon are facing legal trouble over tracking worker absences.
• A California law firm has filed seven wrongful termination suits against the companies.
• Most of the suits were borne from the similar attendance systems that Walmart and Amazon use.

Corporate mega-companies Walmart and Amazon are facing an onslaught of legal trouble over the controversial points-based attendance systems both businesses use to track worker absences and, in turn, fire employees, according to lawyers who have filed lawsuits against the retail titans.

Since November 2022, one California-based law firm, West Coast Trial Lawyers, has filed three wrongful termination lawsuits against Walmart and four against Amazon.

In the lawsuits, fired workers accuse the companies of violating their employment rights by terminating them after they took legally protected time for sick, medical or pregnancy-related leave.

Most of those cases, some of which allege disability discrimination and retaliation, were borne from the points-based attendance systems that Walmart and Amazon use — and a surge of similar complaints from fired workers have continued to roll in in recent months, attorneys with West Coast Trial Lawyers told Business Insider.

"A lot of the larger employers like Walmart and Amazon have started to use this points system with regards to absences," said lawyer Ron Zambrano, the firm's Employment Litigation Chair.

Zambrano is also suing rappers Lizzo and Ye, formerly known as Kanye West, on behalf of former employees.

Employees can be fired if they rack up enough points in a certain time frame

Under both Amazon and Walmart's points-based attendance policies, workers can be terminated once they rack up a certain amount of points in a specific time period, according to Zambrano and fellow attorney with West Coast Trial Lawyers, Nick Yasman. Being late or leaving early can cost an employee a fraction of a point, the attorneys said.

Walmart would not provide details on its points-based attendance system to Business Insider. However, in a 2023 deposition stemming from one of the wrongful termination lawsuits against the company, a "people lead" or HR rep for the retail giant said Walmart uses a five-point system and noted that employees can be subject to termination if they accrue five points in a rolling six-month period, according to Yasman.

Kelly Hellbusch, a spokesperson for Walmart, told Business Insider in a statement that the company "offers full-and part-time associates paid time off and protected paid time off to use for just about anything including when they are sick and miss work as well as accommodations and leave of absence options."

"As a trusted and experienced employer, we have knowledgeable people partners, helpful resources and tools for associates and effective processes in place to comply with laws as well as our own policies," Hellbusch said.

About the three recent wrongful termination lawsuits West Coast Trial Lawyers has filed against Walmart, Hellbusch said, "We will continue to defend the company against this litigation."

Similar to Walmart's policy, Amazon uses a points-based attendance system that could land employees in hot water if they hit eight points in a rolling 60-day period, according to the company.

Amazon told Business Insider that managers are alerted if workers accumulate eight points in a rolling 60-day period and are "required" to reach out to their employees "to better understand the situation." Amazon would not clarify whether an employee hitting eight points would be grounds for termination.

Sam Stephenson, an Amazon spokesperson, told Business Insider in a statement that the company's points-based attendance policy is used "mostly" for part-time employees who work flexible schedules at the company's operations facilities. He said the policy is "enforced when an employee provides little to no notice for not showing up to work."

According to Stephenson, the points system has human oversight, and the company works with its employees if they're dealing with an emergency or any unforeseen circumstances.

"When an employee has an unexpected scheduling issue, we work with them directly to provide options and solutions," said Stephenson, who added that employees have "options to use unpaid time, vacation time, and paid personal time to take time off — for planned or unexpected events."

A June 2020 report by the worker advocacy group A Better Balance found that an estimated 18 million workers across 66 United States employers were impacted by points-based or so-called "no fault" attendance policies.

Many companies, including mid-size ones, have started to implement a points-based system to track lateness and absences, Zambrano noted.

However, the problem is, he said, that the heavily automated points-based attendance systems used by companies like Walmart and Amazon "make a lot of mistakes" and seemingly have issues filtering "an absence that is 'unexcused' or an absence that is protected" by law.

"This stuff is happening very routinely, and people are just being laid off just because they hit these points and there's no one fixing it," said Zambrano. "It is absolutely crazy."

When it comes to Amazon and Walmart, Yasman said, "These policies were created and are applied at a national level, so they do not, on their face, incorporate, reference, or consider more restrictive state laws, most notably in California and New York."

The law firm has been getting a surge of calls from fired workers with similar allegations

According to Zambrano, West Coast Trial Lawyers has been regularly getting multiple calls a week from people reporting they were wrongly fired from their jobs after racking up too many points for absences, even though they claim their leave should have been protected or was already cleared with managers.

"There's been a surge in the last 18 months of these types of calls coming in," Zambrano said, noting that many calls are from people who say they're former Amazon or Walmart employees.

"Half of them say that the HR department or the direct supervisors will tell them, 'We messed up, you should not have been fired, we will fix this,' and they don't fix it," Zambrano said.

Yasman, who is currently litigating three of these types of cases against Walmart, and two cases against Amazon explained that the "common theme" in the lawsuits are that managers "either approved or were aware of my clients' leaves/accommodations" and "just failed to properly input the data into the automated system, so the automated system terminated my clients once they hit the 'five-point' mark."

Amazon disputed the description of its points-based attendance system as totally "automated."

"The attendance system works very similar to a standard time clock system," Stephenson, Amazon's spokesperson, told Business Insider. "To say there is total automation to the system is simply inaccurate. There are humans behind every system, and if employees have questions they have access to onsite HR managers or they get in contact with HR" via a company app.

One lawsuit against Amazon alleges a worker was fired after taking medical leave

Former Amazon ship dock worker Patricia Caputo was fired from the e-commerce behemoth in December 2022 after she needed an emergency colonoscopy and took a short medical leave, according to one of the lawsuits filed against Amazon by West Coast Trial Lawyers.

"It just happened — no warning, no nothing. I just got a phone call, 'You're fired,' from some random person at Amazon. I couldn't believe it," Caputo, 52, told Business Insider in a recent interview.

Caputo, who said in the lawsuit she suffers from a physical disability, told Business Insider that her medical leave was previously approved by her manager, but apparently was not correctly input into the company's internal system, resulting in her termination.

According to the lawsuit filed last August in California's Kern County Superior Court, Caputo initially requested four days off from work to recover from the procedure, and she planned to return on December 11, 2022. Caputo's doctor advised she take an extended medical leave through December 13 shortly after the procedure was done on December 8, the lawsuit says.

On the day of the procedure, Caputo notified Amazon's employee resource center, and she was told by a representative that her medical leave extension was approved, according to the lawsuit. However, the next day, Amazon called Caputo and "informed her that her employment" with the company "was terminated," the lawsuit states.

Caputo wasn't given a reason for her firing and later that day received a direct deposit for her final paycheck from Amazon, according to the lawsuit.

"It was terrible. It was devastating to me," Caputo told Business Insider. "There was no one I could turn to or talk to about it. They immediately cut my mobile app off from me having access to it, so I couldn't even check back with anything that was going on."

"They cut me off," said Caputo. "There was no one I could talk to about their mistake."

The lawsuit says Caputo believes she was fired "because of her physical disability and for seeking the reasonable accommodation of taking medically recommended days-off of work."

In another lawsuit filed against Amazon, former warehouse associate Mekaliah Torres says she was hired in June 2023 and disclosed she was pregnant during her registration. Torres was told to make a request for accommodations prior to her first day of work, the lawsuit, filed in California's Fresno County Superior Court, says.

Torres told the company she would not be able to lift more than 20 pounds, but when she began working at Amazon the next month, she had to lift objects weighing up to 80 pounds, according to the lawsuit. Torres informed her manager that her pregnancy-related restrictions were being violated after about four hours of work, the lawsuit says.

The manager told her if she did not feel safe, she could go home, so she did, according to the lawsuit. The lawsuit alleges that after more than two weeks of back-and-forth about her pregnancy accommodations, Torres received a termination letter falsely citing "voluntary resignation due to job abandonment."

"Defendant's adverse actions, including, but not limited to, Plaintiff's termination, and failure to accommodate, were at least in part, in retaliation for Plaintiff informing Defendant that she was pregnant, and due to her pregnancy-related restrictions," the lawsuit alleges.

In one of the lawsuits filed against Walmart, former employee David Wagner said he was told he was fired in July 2022 due to attendance issues because he was a "no show" when he had COVID-19. The lawsuit, filed in California's Riverside County Superior Court, alleges that on the day Wagner, a former front-end host, tested positive, he continuously called Walmart to inform the retail giant of his condition but got no response.

When Wagner reached out to a coworker about it, he was told he had two paid weeks off to recover, according to the lawsuit, which says Wagner called in almost every day to speak with someone at Walmart regarding his condition and return to work date.

The lawsuit says Wagner never received pay for the days he was out sick and when he finally returned to work on July 21, he was informed he had been terminated days earlier on July 15.

In another lawsuit filed against Walmart earlier last month in California's Sacramento County Superior Court, former employee Larreon Murphy said he was fired in November 2023 for "excessive absences" after he got COVID-19 and needed time off and after he received clearance by a manager to come in for his shift late on multiple dates so he could pick up his children from after-school programs.

Murphy, according to the lawsuit, believes he was terminated "in retaliation for his positive COVID-19 test result and subsequent need for a short medical leave."

A Walmart manager later admitted in a recorded phone call to Murphy that he was "wrongfully terminated," the lawsuit says. Murphy was then offered a "reinstatement" of his job on a different shift, but Murphy explained the new shift conflicted with another job he had, according to the lawsuit.

The lawsuit says the manager emailed Murphy "in a bad faith attempt to reinstate" his employment "without his consent or approval," prompting Murphy to respond that he never agreed to return to Walmart. A December 2023 separation letter stated Murphy was reinstated and that he later submitted a resignation, according to the lawsuit.

"Plaintiff is informed and believes Walmart has adopted a national policy regarding handling wrongful terminations associated with disability leaves that formally calls for fraudulent reinstatement of all employees who have been unlawfully terminated," the lawsuit alleges.

Yasman thinks policies were designed 'to keep your sick, disabled, pregnant people out of work'

Yasman told Business Insider that it's his law firm's goal to win punitive damages in these cases at trial.

"We're confident the 'point systems' were created with malicious and oppressive intent," Yasman said.

According to Yasman, the lawsuits filed by West Coast Trial Lawyers against Walmart and Amazon do not specifically mention the points-based attendance systems even though five of the suits stem from these policies because he says they're typically part of the companies' defense to their lawsuits.

"Their general position is that a policy that applies universally and equally to all employees cannot possibly discriminate against anyone," Yasman explained.

Additionally, the attorney said he believes that the "almost total automation of both companies' human resources dealings is extremely nefarious."

"Because by most metrics they're the world's two biggest companies," Yasman said of Amazon and Walmart, and "because the size and influence of the two companies will likely set a precedent and predict trends for the future of HR operations of all businesses."

Yasman added, "I do suspect the policies were designed in order to keep your sick, disabled, pregnant people out of work."

Millions of workers are impacted by similar attendance policies

The 2020 report by A Better Balance found that millions of workers in the US were impacted by points-based or "no fault" attendance policies at 66 companies that included a slew of major ones. Walmart was among those 66 companies, according to the report.

"'No fault'" attendance policies, as they are often called, are used by some of the nation's largest companies," the 2020 report read, "to encourage workers to show up for their shifts and penalize them when they do not."

"Yet too frequently, these attendance policies are used to infringe on workers' rights by punishing them with 'points' or 'occurrences' for absences that are legally protected, including time off for serious medical needs," the report said.

Elizabeth Gedmark, an attorney and vice president of the nonprofit legal advocacy organization behind the report, told Business Insider that A Better Balance has heard about problems surrounding companies' use of points-based attendance systems for many years and that the group has been fighting back against the "abusive" policies.

Gedmark called these types of systems "a growing trend" as more and more companies turn to them, which she views as worrisome.

"I have concerns that it is a growing trend, especially because of the increased use of technology," said Gedmark. "The issue is that if a company is not paying attention to how their automatic system is working or their policies — and often it can even be intentional — then they may give someone points or a demerit basically for a lawfully protected absence."

"When you see these types of policies in some of the country's biggest employers, you just have to pay attention to the fact that a lot of these employers are employing low-wage workers or workers who are in vulnerable positions and may not have the bargaining power to ask for their rights," Gedmark said.

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By: [email protected] (Natalie Musumeci)
Title: Walmart and Amazon face legal trouble for using a points system to track and fire employees over absences: lawyers
Sourced From: www.businessinsider.com/walmart-amazon-lawsuits-employee-attendance-tracking-points-system-policy-2024-2
Published Date: Wed, 21 Feb 2024 10:00:01 +0000

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