FMLA claim survives based on Facebook Messenger leave notices
Carry: Employers can specify the means by which employees must notify their need to take leave under the Family and Medical Leave Act (FMLA). However, written policies specifying permitted forms of notice will not prevent employees from using other methods if supervisors accept them in practice.
A supervisor who allowed notification of leave requests via Facebook Messenger may have made it a regular notification mechanism, despite the company having an appeals policy, the 4th Circuit Court of Appeals has ruled. of the United States, authorizing claims under the Family and Medical Leave Act (FMLA) to proceed.
The plaintiff worked on the assembly line for Gestamp, a multinational auto parts manufacturer with a plant in South Charleston, W.Va.. Gestamp maintains written attendance and leave policies requiring employees to notify their group leader via a call line at least 30 minutes before the start of their shift if they will be late or absent.
Each employee receives a card with the call number, and the number is posted on a company bulletin board. If an employee misses three consecutive shifts without calling, Gestamp will consider the employee to have abandoned work and terminate the worker.
In June 2019, the plaintiff underwent an emergency appendectomy. While in hospital, the Complainant sent his group leader a Facebook message informing him of the situation. Prior to this operation, his group leader had messaged him on the app to inform him of an unrelated infection that had caused the complainant to be absent from work. He corresponded with the plaintiff on Facebook Messenger for several days after his surgery, and the plaintiff said he would miss two weeks of work to recover. The plaintiff also filed a doctor’s note at the Gestamp establishment.
Just before the Applicant returned 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 fax number of the human resources department to send documents extending his period of leave.
A few days later, the leader of the group asked the complainant, still using Facebook Messenger, how long he would be out of work. The complainant replied that he did not know but that he would see his doctor on July 23. On July 25, the group leader messaged him for an update, and the complainant said he wasn’t sure when he would be back. His doctor then cleared him to return to work on August 12, and the grievor informed his group leader and brought a doctor’s note. Gestamp agreed that the plaintiff was on FMLA leave from June 27 to August 12, 2019.
The plaintiff returned to work on August 12 and worked four days. On Friday, he felt pain and messaged his group leader on Facebook asking to see him. The Complainant claimed that he told his Group Leader about the pain, the Group Leader told him to do what he felt was necessary, and the Complainant said he was considering going back to the hospital. The group leader only remembered that he left early.
The following Monday, the complainant informed his group leader of his absence. His group leader did not respond. The next day, August 20, the claimant messaged his group leader and the group leader responded. The complainant then said his doctor was readmitting him to hospital due to an infection, and his squad leader did not respond. The group leader later admitted to reading the messages but could not recall when. The plaintiff argued that read receipts from the app show that the group leader opened the messages before September 3.
On the day the plaintiff returned to the hospital, he was to take the day off. But the next day, the group leader reports his absence to HR. The group leader did not mention why the plaintiff was absent from work and an HR professional terminated the plaintiff for job abandonment. Some evidence suggests the dismissal took place on August 21.
Plaintiff sued Gestamp for FMLA interference and retaliation, and wrongful dismissal under West Virginia law. Gestamp requested summary judgment, which was granted. Plaintiff appealed to the 4th Circuit.
The district court had found that the plaintiff failed to inform Gestamp of his absence from August 21-30, 2019 through the approved hotline. He relied on FMLA regulations that allow employers to specify usual and customary notices and procedural requirements for requesting time off, including a call-in number.
The 4th Circuit, however, concluded that what is usual and customary for the employer cannot be determined solely on the basis of its written policies; courts must also consider how the company allows its employees to apply for leave in practice.
Plaintiff presented evidence that he had been authorized to communicate leave requests via Facebook Messenger and that he may have been terminated as early as August 21, 2019. Therefore, the 4th Circuit reversed the grant of leave. summary judgment by the district court.
Roberts v Gestamp West Virginia LLC4th Cir., n° 20-2202 (August 15, 2022).
Jeffrey Rhodes is an attorney at McInroy, Rigby & Rhodes LLP in Arlington, Virginia.