?Takeaway: Employers can specify the means by which employees must provide notice of their need to take leave under the Family and Medical Leave Act (FMLA). Written policies specifying permissible forms of notice, however, will not limit employees from using other methods if supervisors accept them in practice.
?A supervisor who permitted notification of leave requests through Facebook Messenger may have made that a customary notice mechanism, despite the company having a call-in policy, the 4th U.S. Circuit Court of Appeals ruled, allowing Family and Medical Leave Act (FMLA) claims to proceed.
The plaintiff worked on the assembly line at Gestamp, a multinational auto-parts manufacturer with a South Charleston, W.Va., facility. Gestamp maintains written attendance and leave policies requiring that employees notify their group leader via a call-in line at least 30 minutes before their shift begins if they will be late or absent.
Each employee receives a card with the call-in number, and the number is posted on a company bulletin board. If an employee misses three consecutive shifts without calling in, Gestamp will consider the employee to have abandoned the job and will terminate the worker.
In June 2019, the plaintiff underwent an emergency appendectomy. While at the hospital, the plaintiff sent his group leader a Facebook message notifying him of the situation. Before this surgery, his group leader had messaged him on the app to communicate about an unrelated infection that caused the plaintiff to miss work. He corresponded with the plaintiff on Facebook Messenger over several days after his surgery, and the plaintiff said he would miss two weeks of work to recover. The plaintiff also dropped off a doctor’s note at Gestamp’s facility.
Right before the plaintiff was to return to work, his surgical wound became infected and the hospital readmitted him. He messaged his group leader on Facebook to say he was back in the hospital. The plaintiff asked for the human resource department’s fax number to send paperwork extending his leave period.
A few days later, the group leader asked the plaintiff—again, using Facebook Messenger—how long he would be out of work. The plaintiff responded that he did not know but would see his doctor on July 23. On July 25, the group leader messaged him for an update, and the plaintiff said he was not sure when he would return. His doctor then cleared him to return to work on Aug. 12, and the plaintiff told his group leader and brought in a doctor’s note. Gestamp agreed that the plaintiff was on FMLA leave from June 27 through Aug. 12, 2019.
The plaintiff returned to work on Aug. 12 and worked four days. On Friday, he felt pain and messaged his group leader on Facebook asking to see him. The plaintiff claimed that he told his group leader about the pain, the group leader told him to do what he thought was necessary, and the plaintiff said he was thinking about going back to the hospital. The group leader only remembered him leaving early.
The following Monday, the plaintiff messaged his group leader about his absence. His group leader did not respond. The next day, on Aug. 20, the plaintiff messaged his group leader and the group leader responded. The plaintiff then said that his doctor was admitting him back into the hospital due to infection, and his group leader did not answer. The group leader later admitted to reading the messages but could not recall when. The plaintiff contended that the app’s read receipts show the group leader opened the messages before Sept. 3.
The day the plaintiff returned to the hospital he was scheduled for a day off. But the next day, the group leader reported his absence to HR. The group leader did not mention why the plaintiff missed work, and an HR professional terminated the plaintiff for job abandonment. Some evidence suggested that the termination occurred on Aug. 21.
The plaintiff sued Gestamp for FMLA interference and retaliation, and wrongful discharge under West Virginia law. Gestamp moved for summary judgment, which was granted. The plaintiff appealed to the 4th Circuit.
The district court had found that the plaintiff failed to notify Gestamp of his Aug. 21-30, 2019, absence through the approved call-in line. It relied upon FMLA regulations that allow employers to specify usual and customary notice and procedural requirements for requesting leave, including a call-in number.
The 4th Circuit found, however, that what is usual and customary for the employer cannot be determined based solely on its written policies; courts must also consider how the company allows its employees to ask for leave in practice.
The plaintiff presented evidence that he had been allowed to communicate leave requests through Facebook Messenger and that he may have been fired as soon as Aug. 21, 2019. Therefore, the 4th Circuit reversed the district court’s grant of summary judgment.
Roberts v. Gestamp West Virginia LLC, 4th Cir., No. 20-2202 (Aug. 15, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
