Nicole Lackey lost her job at Walmart the day after Christmas.
Lackey had started working at the retailer in January 2021 as a sales associate in the housewares department. When she was hired, she was told that the attendance policy at her store ran on a points system. Workers would be given a fraction of a point for being late or leaving early and a full point if a shift was missed entirely — or if, for example, she left before 5 p.m. on a 2 p.m. to 11 p.m. shift. Employees could use accumulated vacation to erase a point, but that meant having enough accrued time and chasing down a manager to make the change. Accumulating three points would be grounds for termination.
Lackey’s trouble began in October when she started randomly experiencing heavy, uncontrollable bleeding from her uterus. “It literally looked like a bomb exploded in my pants,” she said. “I can’t exactly work like that.” When it happened during her shift, she had to leave early, and when it happened in the morning, she had to call out and spend much of the day in her bathroom. And she never knew when it was going to start. She was eventually diagnosed with perimenopause, and a doctor put her on medication that helped reduce the bleeding, which left her exhausted. “I couldn’t even walk up my own stairs,” she said. “I just couldn’t move.”
She explained what was going on to all of her managers, including the team lead, and provided them with documentation. She was told to file for unpaid leave under the Family and Medical Leave Act, but because she hadn’t worked at the company for at least a year, she didn’t qualify. She tried to use her vacation time to cover her absences but quickly ran out.
On December 26, Lackey reported to work. It wasn’t until she had put in two hours of her shift that she was called into the office and fired for accumulating three points.
“I couldn’t just tell my body, ‘Stop, behave, don’t bleed,’” she said. “They acted like it was a choice.” Walmart didn’t respond to requests for comment.
Attendance policies like the one Lackey dealt with go by different names in corporate-ese: attendance-management systems, no-fault policies, attendance-control mechanisms. But they all operate with the same flaw. In the course of tracking worker absences, they also penalize employees for needing to be away from their jobs for real, nonfrivolous reasons and impose bureaucratic, sometimes Kafkaesque roadblocks when employees try to explain their emergencies.
While practices such as just-in-time scheduling or back-breaking productivity quotas have received attention in recent years, leading to some reform, points systems haven’t drawn much scrutiny. They aren’t well-known, even among many workers to whom they apply.
Yet they are commonplace around the country. According to a 2020 report from the legal and advocacy organization A Better Balance, an estimated 18 million workers are subject to them. They’re in place at at least 27 large corporations, many of them household names, according to A Better Balance and information shared with New York Magazine, including Amazon, AT&T, Boeing, FedEx, Ford, GE Aviation, Home Depot, Kroger, Lowe’s, Shell Chemical, Tyson, United Airlines, and Walmart.
When asked for comment, some companies disputed that their policies were “no-fault.” Kelley Luckstein from the Mayo Clinic’s department of affairs, for instance, said “our policy is not a ‘points’ or ‘no-fault’ policy” but that employees are given “attendance occurrences” when they don’t report to work as scheduled.
Each policy is specific to each employer, and some refuse to even share them — one worker told A Better Balance that when she was “pointed out” for missing one day of work after a miscarriage, she asked her employer for the attendance policy and was told to get a lawyer and subpoena it. But the rules generally work the way they do at Walmart: Being late or leaving early incurs a fraction of a point, while missing a whole day or shift incurs a full one. Rack up enough points and you’ll be subject to discipline, such as a warning. Eventually, if you get enough of them, you’ll be fired and, at least in some cases, barred from ever working for the company again.
Companies typically allow points to sunset after a certain period of time, but in some cases, that can be a year or longer. It’s not hard to rack up points, for example, during a nine-month pregnancy for unexpected trips to the doctor or absences for morning sickness only to return from work after the baby’s birth and accumulate a few more when the baby runs a fever or there’s traffic on the way to day care, resulting in termination.
Some employers don’t even accept doctor’s notes, as Walmart failed to do as of 2017. Many, such as Amazon, require advance notice of absences, but plenty of legitimate last-minute emergencies come up in workers’ lives, like a parent landing in the hospital, a child suddenly home from school with an illness, or an unexpected medical problem, like a broken bone or miscarriage.
And when such emergencies do arise, employees sometimes encounter automated systems that make it difficult for them to get ahold of an actual person. When a worker does manage to speak to his manager directly, the managers often aren’t properly trained to understand the full range of legitimate reasons someone can take time off.
Jeric Yurkanin has twice worked under points-based attendance policies. In 2018, he was working at a food-packaging company in Pennsylvania when his wife, who was pregnant and high-risk, began having a hard time breathing and walking one morning. He took her to the emergency room, where doctors kept her for seven hours. He figured his employer would understand the circumstance. But when he called to tell them that he was at the emergency room, he was given a point. “That really, really made me angry,” he said. “I felt helpless, I felt scared.” His wife was on his health insurance, and he feared he would lose his job and the benefit with it.
In September 2021, he started working for Canpack U.S., a packaging manufacturer. When the Omicron COVID wave hit in December, he stayed home after developing flu-like and other symptoms to try to protect his co-workers — only to be issued points. He watched as co-workers who took time off to get tested for COVID were penalized, too. Then in April, he developed a low-grade fever and started throwing up. When he called the attendance system, there was no opportunity to explain why he was missing his shifts. It “didn’t give me the opportunity to explain that it’s something called an emergency,” he said. Each time he missed work, he was given a point, and six meant termination. Within a few days, the company had fired him. A Canpack spokesperson declined to comment on “specific individuals or employment-related matters” but added, “We have not and do not take adverse job action against any persons based on COVID or COVID-related symptoms.”
“There’s an anxiety with these no-fault attendance policies,” Yurkanin said. “A couple points and you could be out the door.” Since he was fired in early April, he’s been trying to get on unemployment and working part time at a baseball stadium every other week. He and his wife are “just barely getting by” on their savings. But he never wants to work for another company with such an attendance policy again. “I don’t mind working, but they treat you like crap,” he said. “In your most vulnerable situation.”
Points policies also often conflict with workers’ legal rights to time away from their jobs. If the employer is large enough and the employee has been working there for at least a year, they are due unpaid leave through the Family and Medical Leave Act. That law covers serious illnesses, caring for family members, and the arrival of new children, even for short, intermittent periods of time. The Americans With Disabilities Act requires employers to accommodate disabilities, including by allowing workers to take time away from work. And in 14 states, 19 cities, and three counties, paid-sick-leave laws mandate that workers get a certain amount of time off for illness, while 30 states mandate accommodations for pregnant workers that can include time off for doctor’s visits and other needs.
Yet even if attendance policies might make clear somewhere in the fine print that workers can take legally mandated absences, this usually isn’t clearly communicated to them, and nor is the process of how to actually go about getting an excused absence. “What sits in break rooms and what they know is three strikes and you’re out,” Dina Bakst, co-president of A Better Balance, said. “These policies are written in a way to discourage workers from understanding and exercising their rights.” Employees are assigned points and often don’t know that they can challenge the point based on leave laws or how to do so. If they do want to challenge a point, it’s typically through another automated system rather than through an actual person. Few know their legal rights, and even fewer are in a position to enforce them.
When asked for comment, 3M, AT&T, Boeing, Cargill, ConAgra, GE Aviation, Froedtert, Lowe’s, Mayo, Mars, and United all told New York that their attendance policies complied with federal, state, and local laws, but few responded when asked how that’s made clear to employees or how they can claim such leaves without penalty. 3M said that employees must contact a third-party vendor to request legally protected time off, which makes a determination about approval that employees can’t dispute; last-minute and emergency needs are “handled locally” by supervisors and HR. Cargill similarly uses a third-party vendor, although it also allows employees to request leave from managers and HR. In the case of unexpected needs, employees are supposed to call supervisors or an attendance line “as soon as they are able” or have a family member or friend call. Mars employs “a network of nurse case managers” at every site to manage leaves, a spokesperson said.
For Lackey, trying to get her medical absences excused by Walmart meant calling an automated system, inputting her employee ID, and then feeding the system information about what had happened and when. All she could report was that it was health-related. No one at the company ever mentioned the ADA, which could have granted her an accommodation for her disabling condition.
Some employers suspended these rules at the beginning of the pandemic, tacitly admitting that their policies were unworkable in the middle of a health crisis. Walmart said at the beginning of the pandemic that it would waive its policy for workers who were on approved COVID leave. Yet many more companies continued on as usual. “We heard from workers who were fired or disciplined because they had COVID and didn’t go in, or because they were exposed to COVID, or because they were taking care of their family member who had COVID,” said Liz Morris, deputy director of the Center for WorkLife Law. And some companies who put the points system on hiatus reinstated it quickly. Tyson, for example, brought its policy back as early as June 2020. At a company like Walmart, which has dropped its policy of foregoing punishment for COVID absences, workers who get COVID or whose family members get it will have no choice but to go to work if they don’t want to incur a point.
The Equal Employment Opportunity Commission has sued employers in the past for maintaining these policies in ways that denied workers their rights, particularly under the ADA. Recently it issued a determination letter in a case against AT&T Mobility Services, alleging that its points-based policy violated a worker’s rights when it gave her points for pregnancy-related absences and then fired her. The EEOC said it had found evidence suggesting that the company’s policy is violating all pregnant workers’ rights nationwide. The letter is “a huge boon,” said Gillian Thomas, a senior staff attorney at the ACLU Women’s Rights Project, who helped bring the case against AT&T. It indicates that the EEOC sees such policies as outright trampling on pregnant workers’ rights, and it gives the agency the power to force the company to change it.
And some lawmakers are starting to take notice, though none of their efforts have yet become law. Senator Elizabeth Warren has sent letters to 3M, Conagra, FedEx, Kroger, and Walmart raising questions about their attendance practices, and a letter she sent in March to Amazon was joined by Senators Bernie Sanders, Cory Booker, Richard Blumenthal, and Representatives Alexandria Ocasio-Cortez and Cori Bush.
A provision in a bill authored by Senator Booker to protect poultry workers would make it illegal for any employer — in poultry or elsewhere — to maintain a no-fault attendance policy that isn’t distributed to workers in writing and doesn’t state all the kinds of leaves workers can take. It also makes it illegal for companies to assess points for legally protected leave. It was introduced in November and has yet to come to a vote.
In June, the New York State Legislature passed a bill that would make it illegal to punish workers for protected absences. Workers who are illegally given points would have the right to be paid lost wages and reinstated to their jobs if they were fired. It’s the first of its kind in the country but still awaits Governor Kathy Hochul’s signature.
And California lawmakers have been working on a different kind of bill, which would prohibit discrimination against workers on the basis of their status as caregivers and require employers to offer them reasonable accommodations in the event of something like school closures. The legislation, which isn’t moving forward in the current session, explicitly states that employees couldn’t receive attendance points for such absences.
Lackey has been trying to find work since she was fired from Walmart, but she’s still unemployed, and her condition has only gotten worse. “It’s been tight,” she said. “We’ve been struggling.” She hopes that soon she’ll start to feel better and she can get another job, but she doesn’t want to go back into the same kind of environment. “In all honesty, I can’t go back to retail, that was just way too much stress,” she said. The company, she said, cared more about well-stocked shelves “than someone’s personal health.”