Dive Brief:
- A jury should decide if a former assembly line worker properly provided notice of his need Family and Medical Leave Act leave by exchanging Facebook messages with his supervisor, the 4th U.S. Circuit Court of Appeals held (Roberts v. Gestamp West Virginia, LLC, No. 20-2202 (4th Cir. Aug. 15, 2022)).
- For several weeks, the worker was on FMLA leave for an emergency appendectomy and a post-surgical infection, according to the court. He notified his supervisor via Facebook Messenger of his initial hospitalization, and the two exchanged Facebook messages when he learned he would be readmitted to treat the infection. He returned to work but had to be hospitalized a third time for a possible reinfection. Shortly thereafter, the employer fired him for job abandonment because he failed to follow its call-in procedure for reporting absences.
- The worker sued the employer for interfering with his FMLA rights. A federal district court granted summary judgment for the employer because the employee didn’t follow the call-in procedure, but the 4th Circuit revived the claim. The appellate panel said the worker raised a trial question over whether it was usual and customary to report his absences via Facebook Messenger. He wasn’t disciplined for doing so during his first two hospitalizations, the 4th Circuit noted. Nor was he asked to use the call-in line, and the company credited him with FMLA leave for those absences, the panel explained.
Dive Insight:
One of the most employer-friendly changes made to FMLA regulations over the years is the call-in requirement, an employment law attorney previously told HR Dive. Under the rule, employees must follow their employers’ usual and customary call-in procedure for reporting FMLA absences, except under unusual circumstances, such as a medical emergency. But employers must be consistent about enforcing these procedures, another expert emphasized.
That’s what led to the issue here, the 4th Circuit said. Even if employers have a written policy defining their “usual and customary” reporting procedures, an employee can present evidence that “usual and customary” also means any method the employer regularly accepts “by informal practice or course of dealing with the employee,” the court noted.
The worker presented such evidence, the 4th Circuit said. It acknowledged that a few months before his appendectomy, he was disciplined for failing to use the call-in line for an unrelated absence. But shortly before the surgery, his supervisor used Facebook Messenger to ask him about another infection for which he missed work, and the worker wasn’t disciplined for not using the call-in procedure.
What’s more, the company conceded that the worker’s use of Facebook Messenger to notify his supervisor about the appendectomy was acceptable because it was an emergency, the 4th Circuit said. Also, even though the company suggested the worker’s third hospitalization was similar, it didn’t offer a plausible reason for treating his Facebook messages with his supervisor during this time any differently, the court added.
There was also a jury question over when the worker was fired. The worker said he was fired on Aug. 21, while he was still in the hospital and didn’t know when he would be able to return to work. The company asserted that he was fired on Aug. 28, when he was home recovering but hadn’t been in touch for several days.
The evidence cut both ways, the 4th Circuit said. The company’s “termination checklist” noted that the worker’s termination date was Aug. 21. But the HR manager explained that he made the termination decision on Aug. 28, effective Aug. 21. Crediting the HR manager’s explanation would require weighing the evidence and judging his credibility, which the court couldn’t do at this stage of the litigation, the panel said.
