Here's what happens when your managers don't follow your written call-out policies.
Author | Meyer, Eric B. |
Under the Family and Medical Leave Act, an employer can insist that employees comply with the company's "usual and customary" absentee notice procedures. Often those call-out procedures are part of written leave and attendance policies.
But, as one company found out the hard way, "usual and customary" absentee notice can transcend formal policies and procedures when managers bend the rules.
The case involves a company with written attendance and leave policies. The defendantemployer required that employees notify their group leader via a callin line at least 30 minutes before their shift began if they would be late or absent. If an employee missed three consecutive shifts without calling in, the defendant would consider the employee to have abandoned his job and would terminate him.
Hey, that's not in the rules!
The employee acknowledged the written attendance and leave policies. However, he claimed that through his dealings with the defendant, the company's "usual and customary" notice procedures for leaves of absence expanded beyond its written policy. Specifically, the employee argued that he complied with his FMLA obligations by notifying his manager of his medical absences over Facebook Messenger, which the company had previously accepted. (The court described several instances in which the plaintiff and his manager communicated over Facebook Messenger. They discussed the plaintiff's hospitalization, the reasons and when the plaintiff may return to work.)
Unfortunately for the employee, the company terminated his employment when HR, out of the loop on the Facebook Messenger communications, learned that the plaintiff missed three consecutive shifts without calling in.
So, the plaintiff sued for FMLA interference and retaliation.
But did Facebook Messenger become a "usual and customary" callout method? In August, the Fourth Circuit Court of Appeals agreed the employee had done enough to...
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