The “Reasonableness” of a Neutral Absence Control Policy

January 15, 2007

In July 2006, the Dallas Court of Appeals, in Ramirez v. Encore Wire Corp., affirmed a trial court’s dismissal of an employee’s retaliation claim and upheld the employer’s neutral absence control policy as a defense to the claim. The plaintiff, Martin Ramirez, worked as a cabler with Encore Wire Corporation.

In April 2002, Ramirez suffered an injury to his lower back while working on the job. Subsequently, Ramirez reported the injury to Encore and took a disability leave of absence. Encore’s disability leave policy stated, “An employee whose absences exceeded thirty-six calendar days in a twelve-month period, exclusive of any leave to which he was entitled by law, would be subject to automatic termination.” Ramirez was entitled to twelve weeks of disability leave under the Family Medical and Leave Act (“FMLA”), in addition to the thirty-six days stated in Encore’s policy. Therefore, Encore allowed Ramirez a total of one hundred and twenty days of leave from work. Accordingly, Encore terminated Ramirez after he failed to return to work after his one hundred and twenty days of leave had expired.

Ramirez filed suit against Encore claiming that he was discharged by Encore in retaliation for filing a workers’ compensation claim. The Court of Appeals relied on the Texas Supreme Court’s holding in Tex. Division–Tranter, Inc. v. Carrozza, that held the uniform enforcement of a reasonable absence control policy does not constitute retaliatory discharge under the Texas Labor Code. Although Ramirez argued that Encore failed to provide proof of the “reasonableness” of its absence control policy, the court disagreed and stated that on its face, the terms and condition of the leave policy were reasonable. Thus, the court held that a facially reasonable absence control policy is proof of the reasonableness of that policy.

This ruling reiterates that in cases where an employee files a retaliation claim alleging his/her employment was terminated for filing a workers’ compensation claim, the employer may use a neutral absence control policy as a defense, only if the same policy is applied in the same manner against employees who have not filed workers’ compensation claims. In other words, an employer’s neutral absence control policy must be applied neutrally and consistently towards each of its employees. Additionally, neutral absence control policies are not only useful for employees with workers compensation claims, they are also applicable for situations regarding employees that take FMLA leave and fail to return to work.

Ramirez v. Encore Wire Corp.

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