Class Action Lawsuit Alleges Walmart’s Unscheduled Absence Policy ‘Systematically’ Hurts Pregnant Employees

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[Update: In a statement released Tuesday, July 24, Walmart said "we take these issues seriously and do not tolerate discrimination. We will look into these claims. 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."]

Two named plaintiffs have filed a proposed class action lawsuit against Walmart over what they call the retailer’s “brutal absence control system” by which pregnant employees are punished disproportionately for unscheduled absences regardless of whether they’re protected under state law.

Filed in New York State Supreme Court against Wal-Mart Associates, Inc., Wal-Mart Stores East, Inc. and Wal-Mart Stores East, LP, the lawsuit alleges the defendants’ unscheduled absence policy is particularly harmful to pregnant employees in that Walmart, even with a doctor’s orders, simply does not consider providing reasonable accommodations. According to the named plaintiffs, who worked for the defendants from 2016 until March 2017, Walmart effectively wields its unscheduled absence policy as justification to forcibly terminate pregnant workers, employees who the case says have the most need for reasonable accommodations.

The lawsuit claims that despite 23 states and five cities having laws on the books to protect pregnant workers, Walmart’s “outdated attitudes about pregnancy in the workplace” are to blame for the company's refusal to grant reasonable time off for pregnant workers. Walmart, the lawsuit says, violates the New York Pregnant Workers Fairness Act (PWFA) in that the company knows pregnant workers need time off for pregnancy-related conditions, yet refuses to authorize absences without engaging in any “interactive process to determine whether doing so would have been an undue hardship." 

“[The plaintiffs] bring this action to make clear that no employer—including Walmart—is above the law,” the complaint says. 

According to the lawsuit, Walmart employs a “no-fault” absence control policy whereby hourly workers accumulate “points” each time they miss a scheduled shift, arrive late, or leave early without approval. Once an employee reaches a certain number of points, the individual may be subject to discipline or fired, the suit says.

During the time period relevant to the lawsuit, hourly Walmart employees would incur one full point for every shift they missed and one half-point for each late arrival or early dismissal, the suit explains. New employees who accrue four points within the first six months of their employment are subject to termination, according to the complaint, while those who have been with Walmart for longer are subject to termination after accumulating nine points within a rolling six-month window.

The plaintiffs argue that while Walmart’s absence policy explains the difference between authorized and unauthorized absences, it makes no mention of pregnancy-related conditions being allowable without discipline.

“[The plaintiffs] were not advised of their rights under the PWFA,” the suit claims, “nor were they ever told that absences for pregnancy-related conditions are protected by law.”