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How A Facebook Messenger Chat Can Become a “Usual and Customary” FMLA Notice Procedure For a Company


By Saman Haque and Ellen E. McLaughlin

Seyfarth Synopsis: In a recent ruling, Roberts v. Gestamp (Decided August 15, 2022), the Fourth Circuit reversed, in part, the lower court’s decision to grant the Company’s motion for summary judgment on the grounds that the employee did not follow the Company’s “usual and customary” absence notice procedures as required by the Family and Medical Leave Act (“FMLA”).  Because the terminated employee’s manager accepted previous messages regarding absences via Facebook Messenger, the Company’s position that using Facebook Messenger was not its “usual and customary” notice practice for reporting FMLA absences, was called into question. The Court found that previous utilization of Facebook Messenger to communicate absences raised a question of material fact for a jury to determine if a Facebook Messenger Chat satisfied the FMLA’s notice requirements.

Plaintiff Kasey Roberts worked for the Defendant Gestamp West Virginia LLC. on its assembly line. Gestamp’s written attendance and leave policy required employees to notify their manager through its call-in system at least 30 minutes before the employee’s shift started. Missing three consecutive shifts without calling in constituted job abandonment and grounds for termination.

On July 25, 2019, Plaintiff Roberts notified his Manager, Gary Slater, by Facebook Messenger that he would need an emergency appendectomy and could not report to work. Following his emergency surgery, he messaged Manager Slater he would be absent for two weeks. Plaintiff Roberts followed up by dropping off a doctor’s note to Gestamp’s facilities. This leave was approved. Before his return to work, Plaintiff Roberts was readmitted to the hospital and again used Facebook Messenger to inform Manager Slater of his absence from work. Plaintiff Roberts requested an extension of his leave and asked for the Human Resources fax number. He provided a doctor’s note via fax. Manager Slater and Plaintiff Roberts exchanged communication via Facebook Messenger regarding health updates and Plaintiff Roberts’ return to work estimation. This FMLA approved absence started on July 25, 2019 and ran through August 12, 2019.

Plaintiff Robert’s returned to work on August 12, 2019. He worked for four days. On August 17, 2019, he messaged Manager Slater via Facebook Messenger that he felt pain in his stomach and would be absent. On August 20th, Plaintiff Roberts messaged Manager Slater again via Facebook Messenger explaining he would not be in to work and he was in the hospital dealing with an infection. Manager Slater reported these new absences to Human Resources because Roberts did not adhere to the written call-in procedure. Plaintiff Roberts returned to work September 3, 2019.

Upon returning to work, Gestamp informed Roberts that he was terminated for job abandonment. Roberts then sued Gestamp for FMLA interference, retaliation and wrongful discharge claiming that using Facebook Messenger to report FMLA absences was sufficient notice under the FMLA.

The Company argued that the first leave of absence communicated via Facebook Messenger constituted an exception because Plaintiff Roberts’ emergency appendectomy warranted his inability to follow the usual and customary written notice procedure. The Company also argued that in the past, when Plaintiff Roberts failed to use the call-in line to report an absence, the Company issued discipline.

The lower court accepted the Company’s argument that because Roberts failed to use the Company’s call-in line to report his absence, he failed to follow the Company’s usual and customary practice to report absences and as such, his absences were occurrences under the attendance policy rather than job-protected FMLA absences. The 4th Circuit Court of Appeals reviewed the district court’s decision and took a closer look at whether the Facebook Messenger Chat sent to Roberts’ Manager, Gary Slater, satisfied the FMLA’s “usual and customary” notice requirement. The Fourth Circuit reversed the district court, relying on Sixth Circuit case law and another district court case, both finding that that the plain meaning of “usual and customary”  does not require that an employee must adhere to the notice procedure stated in an official written policy to fulfill the FMLA notice requirements when an unwritten and “typically followed” procedure exists.[1]

Here, based on the facts, the Fourth Circuit determined that a jury could find that Roberts followed usual and customary procedures because usual and customary can mean “any method” that an employer implemented by informal practice or course of dealings that it regularly accepted in addition to  those in the written attendance policy. Because Roberts’ Manager previously accepted other attendance absences via Facebook Messenger, and not the call-in line, it was not unreasonable for Roberts to think he complied with the usual and customary practices of the Company. The Fourth Circuit thus reversed the lower court’s finding of summary judgment on Roberts’  FMLA claim, but affirmed the lower court’s findings on retaliation and wrongful discharge.

Practical Point – Managers should not approve absences that do not comply with a company’s stated call-in procedures

Employers should communicate and train all managers on their attendance and leaves of absence policies and instruct them to not accept an employee’s report of an absence that does not follow the Company’s stated policy. The Gestamp decision is an important reminder that policies must be consistently followed and that any exception allows an employee to argue that other methods of reporting an absence, including absences under the FMLA, were reported according to accepted practices.

If you have questions regarding this article, please contact the authors or your Seyfarth attorney.

 

[1] Honeycutt v. Balt. Cnty., Md., No. 06-0958, 2006 U.S. Dist. LEXIS 49315, at *11 (D. Md. July 7, 2006); Festerman v. County of Wayne, 611 F. App’x 310, 316 (6th Cir. 2015).

 



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