October 24, 2022
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.
The Fourth U.S. Circuit Court of Appeals recently ruled that 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 allowing the employee’s FMLA claims to proceed.
The plaintiff sued Gestamp, a multi-national auto parts manufacturer, for FMLA interference and retaliation, and wrongful discharge. Gestamp moved for summary judgment which the district court granted. The district court found that the plaintiff failed to notify Gestamp of his need for an FMLA 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 Fourth Circuit found, however, that what is usual and customary for the employer cannot be determined based solely on its written policies. Instead, courts must also consider how the
company actually allows its employees to ask for leave in practice.
The plaintiff presented evidence that he had previously been allowed to communicate leave
requests through Facebook Messenger. Therefore, the Fourth Circuit reversed the district court’s grant of summary judgment and the plaintiff’s claims were allowed to proceed.
If you have questions regarding this or any other matter, please contact Dean Leazenby at Warrick & Boyn, LLP.