A recent federal court decision highlights an important takeaway for employers: consistently enforced attendance policies and well-documented decision-making can be a strong defense against discrimination and retaliation claims. At issue in the case was whether the employee’s termination was based on consistently documented attendance policy violations as opposed to allegedly discriminatory “stray-remarks” made in the workplace. Ultimately siding with the employer, the court held that the termination was lawful because it was sufficiently based on documented attendance policy violations. 

For California employers, however, the lesson learned is more nuanced. California courts and agencies often scrutinize attendance policies closely, especially when protected leave, paid sick time, disability accommodations, or retaliation concerns are involved. In California, even comments considered “stray remarks” elsewhere may still be admissible as evidence when combined with other facts.  

What Does it Mean? 

This recent decision serves as a reminder that well-documented and consistently enforced attendance policies remain one of the strongest defenses against employment claims, especially when employers can clearly demonstrate that disciplinary decisions were based on legitimate policy violations rather than discriminatory motives. Consider the following: 

• Neutral Policies Must Still Account for Protected Leave. Attendance policies should clearly exclude legally protected absences from disciplinary calculations. This includes California paid sick leave, Kin Care leave, CFRA/FMLA leave, jury duty, and other protected time off. Employers should review point-based attendance systems to ensure protected leave is carved out and supervisors understand which absences cannot be counted against employees. 

• Documentation Often Determines the Outcome. The employer in the recent case prevailed largely because records showed the termination decision was based on attendance policy violations that were consistently applied. Consistent documentation and application of policies helps demonstrate that employment decisions are policy-driven rather than retaliatory or discriminatory. Maintain detailed records of: 
  • Attendance violations 
  • Employee notifications and acknowledgements 
  • Progressive discipline steps 
  • Leave requests and approvals 
  • Decision-making rationale 

• California Courts Do Not Ignore “Stray Remarks.”  Unlike some federal courts, California courts may consider inappropriate comments or workplace remarks as part of the overall evidence in a discrimination case. Even isolated comments can become problematic when paired with inconsistent enforcement or weak documentation. Manager comments that seem informal at the time can later become evidence in litigation. Train supervisors to avoid speculative, personal, or insensitive comments related to: 
  • Medical conditions 
  • Age 
  • Leave usage 
  • Disabilities 
  • Family obligations 
  • Protected complaints 

• Consistency Across Supervisors Is Critical. Courts frequently examine whether similarly situated employees were treated differently under the same policy. Inconsistent application can undermine otherwise lawful attendance standards. Centralize HR review for high-risk attendance terminations and conduct periodic audits to confirm consistent enforcement across departments and multiple worksites. 

Attendance policies remain an important operational and legal tool. But in California, policy enforcement alone is rarely enough. When attendance decisions are supported by strong records and compliant practices, employers are in a far stronger position to defend against discrimination and retaliation claims.