Fourth Circuit Rules That ‘Usual and Customary’ Notice Procedures Are Not the Same as a Written Policy | Steptoe & Johnson LLC
In Roberts vs. Gestamp West Virginia, LLCthe Fourth Circuit Court of Appeals – which covers Maryland, West Virginia, Virginia, North Carolina and South Carolina – ruled that when an employer allows an employee to use an informal method of notice other than the appeal procedure specified by the employer, the employer cannot be entitled to claim that the employee has not complied with the employer’s notification policy when requesting leave under the Family and Medical Act (FMLA).
While in the hospital for an emergency appendectomy, the Complainant sent his manager a Facebook message alerting him to the situation. Although the employer had an established hotline to use to report absences, the Claimant’s manager responded to the Facebook post and corresponded with the Claimant over the next few days about his operation and period. recovery, including asking the applicant follow-up questions regarding their planned absences.
After being back at work for several days, the Applicant felt more pain from his site of infection. The plaintiff informed his manager of his pain and left work early. Over the next few days, the complainant sent Facebook messages to his manager, informing him that he would not be returning to work and that he was being readmitted to hospital for the same infection. His superior did not respond to these messages but reported the complainant’s absences to human resources. When the plaintiff returned to work with a doctor’s note, he learned that he had been fired.
Plaintiff sued for wrongful discharge, FMLA interference, and FMLA retaliation. Both the District Court and the Fourth Circuit agreed that Plaintiff’s FMLA claims hinged on whether Plaintiff provided adequate notice of his need for FMLA upon his readmission to the hospital. The district court denied the FMLA claims. The district court held that the FMLA regulations allow an employer “to require an employee to comply with the requirements of the employer.” usual and customary advance notice and procedural requirements for requesting leave, absent unusual circumstances. Because the plaintiff sent a Facebook message to his manager reporting his absence rather than using the appeals process, the district court determined that he failed to give adequate notice.
The Fourth Circuit disagreed. Overturning the lower court’s decision, the Fourth Circuit found that the FMLA rules governing appeal procedures were more flexible than the lower court had suggested. Instead, the Court determined that the terms “usual and customary” could refer to any procedure that an employer has agreed to”through an informal practice or way of dealing with an employee.” The Court further noted that nothing in the text of the regulation limits the scope of a “usual and customary” policy to an employer’s written policy. Although the written policy can be used as prima facie evidence of what is “usual and customary”, nothing prevents an employee from rebutting this presumption with evidence showing that the employer also accepts other methods of notice. ‘absence. In this case, because Plaintiff and his manager discussed his medical condition and status via Facebook Messenger and because Plaintiff had been credited with FMLA leave based on these conversations without discipline, the Court held determined that if the plaintiff followed the “usual and customary” notification procedures were best left to be resolved by a jury.
The Fourth Circuit notice is an important reminder to employers to ensure appeal procedures are applied consistently to eliminate the risk that informal notification methods may be accepted as “usual and customary.” “.