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Duke Energy Elimination of Banked Sick Days Class Action

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At some companies, a collective bargaining agreement allows employees to bank their unused sick leave or short-term disability hours, even for years. Should the company later be allowed simply to wipe out those hours, without discussion or compensation? The complaint for this class action alleges that Duke Energy Corporation did just that. It claims violations of the Employee Retirement Income Security Act (ERISA) and the Tennessee Human Rights Act (THRA) along with age discrimination.

The class for this action is all non-management employees of Piedmont Natural Gas Company, Inc., doing business as Duke Energy Corporation as of April 1, 2018 having more than zero hours in their Leave Bank Accounts.

During the period when the company was the Nashville Gas Company and then Piedmont Natural Gas Company, Inc., it had collective bargaining agreements with Local Union 702 of the Jouneymen and Apprentices of the Plumbing and Pipefitting Industry, which was part of the AFL-CIO. Earlier agreements allowed employees to bank their sick days and carry them over from one year to another. 

The agreement effective from 2004 to 2008 said that employees were no longer able to bank sick days, but that they could keep and use any days they had already banked. Collective bargaining agreements for 2008 to 2012 and 2012 to 2018 also recognized the use of banked sick days.

In 2016, Duke Energy bought the company, inheriting the collective bargaining agreement of 2012 to 2018. During negotiations in 2018 for the next agreement, the union and company did not bargain over sick leave benefits. Instead, the complaint says, “the Company unilaterally informed Local 702 that it would no longer honor accrued Leave Bank benefits” in the new agreement. 

The complaint says, “Upon information and belief, in April 2018, the Company removed the ‘sick reserve’ function” from its online portal and “began refusing to honor” the time employees had accumulated. This seems to have been while the 2012 to 2018 agreement was still in effect. The four plaintiffs in this action each lost accumulated sick leave, with three of them losing over 900 hours.

The complaint lists two counts. First, it asks for clarification and enforcement of rights, saying that under ERISA, the class members have “nonforfeitable, accrued rights” to the banked days.

Second, it claims violation of the THRA, for age discrimination. Clearly, the employees who lost hours were older, since the hours had been accumulated only up to 2004. And older employees are more likely than younger ones to need to use extended periods of sick leave.

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