Walmart’s Absence Policy Violates NY Pregnancy Law, Women Allege

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By Patrick Dorrian

Walmart ‘s employee-absence policy flouts a New York state law protecting pregnant workers from losing their jobs just because they may need unscheduled time off, a group of women allege in a state court lawsuit.

New York is one of 23 states—and New York City is one of five cities—with laws that provide stronger protections for pregnant workers than federal law provides, according to the group A Better Balance, which is representing the women in the lawsuit.

The lawsuit says the retailer charges pregnant women “points” under its “no fault” absence control policy whenever they are absent, late, or leave early without advance notice regardless of the reason for the unplanned time off. A telephone service and a phone app Walmart employees may use to report unscheduled absences don’t contain “pregnancy-related condition” as a reason that may be designated for an absence.

When pregnant workers instead call their store to explain their situation, they’re told unplanned absences for pregnancy-related illnesses or care can’t be excused under the company’s “brutal absence control policy,” the lawsuit says. That’s so even though the company has a list of other excuses that spare an employee unwanted points under the system.

The system punishes all workers for unscheduled absences by charging them one point for missing a full day without notice and one half-point for unexpectedly arriving late or leaving early by 10 minutes or more. Employees may be fired or otherwise disciplined when they accrue a certain number of points, a result that is “particularly harmful to pregnant workers,” the lawsuit says.

“We take these issues seriously and do not tolerate discrimination,” a Walmart spokesman told Bloomberg Law. “We will look into these claims. Like any company, we have an attendance policy that helps ensure we are taking care of our customers. We understand associates may have to miss work on occasion and we have processes in place to assist them. This includes legally protected and authorized absences, such as medical-related accommodation, FMLA leave, pregnancy and bereavement that are not counted against our attendance policy,” he said in a July 25 email. The FMLA refers to the federal Family and Medical Leave Act.

Women Lost Their Jobs

The lawsuit was brought under the New York Pregnant Workers Fairness Act by A Better Balance on behalf of two workers at an Albion, N.Y., Walmart who lost their jobs as a result of the policy and a class of similarly situated women. The law took effect in January 2016 as part of the New York Women’s Equality Act and makes it illegal to refuse to provide reasonable job accommodations for the known disabilities or pregnancy-related conditions of an employee or prospective employee.

The New York state law—New York City has its own Pregnancy Fairness Act, too—was part of a wave of similar state laws passed around the same time to address workplace accommodations for pregnant workers. Federal anti-bias laws don’t explicitly state how pregnant women experiencing medical difficulties at work must be accommodated, but the U.S. Supreme Court held in 2015 that the federal Pregnancy Discrimination Act requires employers to offer a pregnant employee with work restrictions the same accommodations it makes available to other, non-pregnant employees “similar in their ability or inability to work.”

“No pregnant worker, many fearing miscarriage, should be fired for seeking emergency medical care,” A Better Balance’s Dina Bakst said July 24 in a statement announcing the lawsuit. “Walmart must immediately change its policies to comply with this law and ensure that no pregnant worker is forced to choose between a healthy pregnancy and a pink slip,” she said. Bakst is the organization’s co-president and co-founder.

The case is Hoover v. Wal-Mart Assocs., Inc., N.Y. Sup. Ct., docket number not available, class complaint 7/24/18.

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