Some employers have now adopted a strict liability or what is known as "no fault" attendance policies. In such situations, the reason for the employee's tardiness or other attendance problem is not considered relevant by the employer in taking action against the employee for the attendance problem. They have adopted what is called a point system assigning points for varies attendance problems, for example, tardiness equals one point, failure to call in to report absence is three points, etc. Once a person has achieved ten points under the system they will be terminated. However, in such a system, the reasons for the attendance problem is very relevant to the Employment Development Department in determining whether such an employee who subsequently files an unemployment insurance claim as a result of termination under the "no fault" policy has committed misconduct under the unemployment insurance law.
In commenting on such a "No Fault Attendance System", the Unemployment Insurance Appeals Board in P-B-510, the Appeals Board, stated, in part:
Many employers have adopted strict liability or “no fault” attendance policies similar to the system instituted by the employer in this case. Under these policies, the reason for the attendance infraction that generates the penalty point or points is often irrelevant and employers frequently impose points for absences, incidents of tardiness, or early departures that are for good cause. The Appeals Board has thus far not issued a decision that specifically addresses the relevance of such a “no fault” attendance policy to the adjudication of the unemployment insurance benefit claim of a claimant who was discharged for exceeding the maximum points allowed under the policy. Our review of this case has convinced us to remedy that omission...
As we have noted, misconduct was defined in Precedent Decision P-B-3 as consisting of a substantial breach by the claimant of an important duty or obligation owed the employer that is willful or wanton in character and tends to injure the employer. In this case, the important duties involved are the employee’s duty to render punctual attendance at work as scheduled by the employer and the employee’s duty to promptly provide advance notice to the employer if the claimant will not be in attendance at work as required.
In recent years, many employers have chosen to codify such attendance duties in policies or systems similar to that instituted by the employer in this case. These policies typically provide that an employee will be assessed points for each instance of absence or tardiness regardless of the reason for that attendance incident. While such “no fault” attendance policies or systems may serve legitimate employer business objectives, the power of employers to enforce these policies has been limited by the Labor Code.
3 More importantly, such policies do not limit or control this agency’s decision as to whether the facts surrounding a claimant’s discharge warrant the claimant’s disqualification for benefits.
The decision as to whether a claimant’s attendance policy violation represents misconduct under code section 1256 must hinge upon the facts of the case rather than the points and consequences allocated to those facts by the attendance policy formulated by the employer. That decision will chiefly depend upon the claimant’s fault for the violation and there is no justification for basing that decision on a “no fault” policy that largely excludes the claimant’s fault as a factor to be considered. Many employers have implemented extensive attendance policies that impose penalties for a wide variety of attendance infractions, but those policies should never be permitted to deter or distract this agency from our duty to ascertain all the pertinent facts and then apply the existing unemployment insurance law to those facts. That responsibility requires us to proactively develop a comprehensive evidentiary record with regard to all the relevant facts rather than merely passively accept a point tally offered by an employer.
In a case in which a discharge is based upon an excess accumulation of attendance points under an employer’s “no fault” attendance policy, pursuant to the principles set forth in Precedent Decision P-B-192 we must first examine the final attendance incident that proximately caused the employer’s decision to discharge the claimant. It is the employer’s burden to prove that the final attendance incident represented a breach by the claimant of an important duty owed to the employer and that such incident injured or tended to injure the employer. If the employer fails to satisfy its burden of proof on each of these necessary elements, the claimant will have been discharged for a reason other than misconduct. If the employer satisfies its burden of proof on these elements, it is then the claimant’s burden to prove that good cause existed for that final
attendance deficiency and that the claimant was thus without fault for that incident. If the claimant shows good cause for that final attendance incident, then the claimant will have been discharged for a reason other than misconduct and the claimant will not be disqualified for benefits under code section 1256.
If the claimant was at fault for that final attendance breach of duty and that attendance deficiency tended to injure the employer, pursuant to the principles set forth in Paratransit, supra, 59 Cal. 4th 551 that single breach of duty will disqualify the claimant for benefits if (1) that final attendance deficiency was so consequential as to be substantially detrimental to the employer’s interest or (2) the claimant had received at least one prior, justified reprimand or warning concerning a similar attendance deficiency. A warning for a prior attendance deficiency would not be justified if good cause was established for that deficiency. Given the nature of attendance policy infractions and the holding in Precedent Decision P-B-143, we have concluded that, in cases concerning discharges for attendance policy violations, the prior reprimand or warning referenced in Paratransit (Ibid.) must concern an attendance deficiency similar to the attendance deficiency that prompted the discharge....[Author's Note: The Appeals Board remanded this case for further hearing before a different Administrative Law Judge.]