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

Facebook Email icon An envelope. It indicates the ability to send an email.

Email Twitter icon A stylized bird with an open mouth, tweeting.

Twitter LinkedIn icon

LinkedIn Link icon An image of a chain link. It symobilizes a website link url.

Copy Link lighning bolt icon An icon in the shape of a lightning bolt.

This story is available exclusively to Business Insider subscribers. Become an Insider and start reading now. Have an account? Log in .

• Walmart and Amazon are facing legal trouble over firing workers after absences.
• A California law firm has filed seven wrongful-termination suits against the companies.
• Lawyers said most of the suits were based on the attendance systems that Walmart and Amazon use.

Sign up to get the inside scoop on today’s biggest stories in markets, tech, and business — delivered daily. Read preview

The megacorporations Walmart and Amazon are facing legal trouble over the points-based attendance systems they use to track worker absences and, in turn, fire employees, lawyers who have filed lawsuits against the retail titans say.

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

This story is available exclusively to Business Insider subscribers. Become an Insider and start reading now. Have an account? Log in .

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.

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

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

Zambrano is also suing the musicians 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 timeframe

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

Walmart wouldn't provide details on its points-based attendance system to BI. But Yasman said that in a 2023 deposition stemming from one of the wrongful-termination lawsuits against the company, a "people lead," or human-resources rep, for the retail giant said Walmart used a five-point system, and employees could be subject to termination if they accrued five points in a rolling six-month period.

Kelly Hellbusch, a spokesperson for Walmart, told BI 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.

Regarding the three recent wrongful-termination lawsuits that West Coast Trial Lawyers had 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, and according to the company, employees can land in hot water if they hit a certain number of points.

Amazon told BI that managers would be alerted if workers accumulated eight points in a rolling 60-day period and were "required" to reach out to their employees "to better understand the situation." Amazon wouldn't clarify whether an employee hitting eight points would be grounds for termination.

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

Stephenson said the points system had human oversight, and the company would work with its employees if they were 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," Stephenson said, adding that employees had "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 US employers were affected by points-based or so-called "no-fault" attendance policies.

Zambrano said many companies, including midsize ones, had started to implement a points-based system to track lateness and absences.

But he said the problem was that the heavily automated points-based attendance systems used by companies such as Walmart and Amazon "make a lot of mistakes" and seemingly had 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," Zambrano said. "It is absolutely crazy."

Yasman said that when it came to Amazon and Walmart, "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 lawyers say the firm has been getting a surge of calls from fired workers

Zambrano said West Coast Trial Lawyers has been 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 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, adding that many calls had been from people who identified themselves as 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's litigating three of these types of cases against Walmart and two cases against Amazon, explained that the "common theme" in the lawsuits was 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 "automated."

"The attendance system works very similar to a standard time clock system," Stephenson, Amazon's spokesperson, told BI. "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, he said.

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

A 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, one of the lawsuits filed against Amazon by West Coast Trial Lawyers says.

"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 BI in a recent interview.

Caputo, who says in the lawsuit she suffers from a physical disability, told BI her medical leave was previously approved by her manager but apparently wasn't correctly inputted into the company's internal system, resulting in her termination.

The lawsuit, filed in August in California's Kern County Superior Court, says 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, the lawsuit says. But the next day, Amazon called Caputo and "informed her that her employment" with the company "was terminated," the lawsuit says.

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

"It was terrible. It was devastating to me," Caputo told BI. "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," Caputo said. "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, a former warehouse associate, Mekaliah Torres, says she was hired in June 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 wouldn't 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, the lawsuit says. 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 that if she didn't feel safe, she could go home, so she did, the lawsuit says. 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 says.

In one of the lawsuits filed against Walmart, a former employee, David Wagner, says he was told he was fired in July 2022 because of attendance issues as 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, the lawsuit says, adding that 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 last month in California's Sacramento County Superior Court, a former employee, Larreon Murphy, says he was fired in November 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, the lawsuit says, 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. It 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.

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 separation letter said Murphy was reinstated and that he later submitted a resignation, the lawsuit says.

"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 said the policies were designed 'to keep your sick, disabled, pregnant people out of work'

Yasman told BI his law firm hoped to take these cases to trial to win punitive damages for the workers.

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

Yasman said the lawsuits filed by West Coast Trial Lawyers against Walmart and Amazon didn't specifically mention the points-based attendance systems even though five of the suits stemmed from these policies because they were 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.

The attorney also said he believed 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."

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

Millions of workers are affected by similar attendance policies

The 2020 report by A Better Balance found millions of US workers were affected by points-based or "no-fault" attendance policies used by many major companies. Walmart was among the 66 companies included in the report.

"'No fault' attendance policies, as they are often called, are used by some of the nation's largest companies," the report read, adding that they were used "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 continued.

Elizabeth Gedmark, an attorney and the vice president of A Better Balance, told BI that the group had been fighting the "abusive" policies for years.

"I have concerns that it is a growing trend, especially because of the increased use of technology," Gedmark said. "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," she continued, "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."