Hey Employer, Did You 'Notice' My Text Message?

• Author: Melissa J. Shaffer
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 913-946

Louisiana Law Review (%−& 2 −& ∗ Louisiana Law R iew - Spring 2017 ! )(+#,(∗0 #, ,#(∋ %#++ ∀ 3 ∗ y Employer, Did You “Notice” My Text Message? . . #% % , ∀5)+ #!#, % (&&(∋+ % / %+− − % %∗ . .(% #++ 4#+ (&& ∋, #+ ∗(−!∀, ,( 0(− (∗ ∗ ∋ () ∋ ++ 0 ,∀ / .# /+ ∋ (−∗∋ %+ , / #!#, % (&&(∋+ , ∀ + ∋ ), (∗ #∋ %−+#(∋ #∋ (−#+# ∋ / .# / 0 ∋ −,∀(∗#1 #,(∗ ( / #!#, % (&&(∋+ (∗ &(∗ #∋ (∗& ,#(∋ )% + (∋, , ∃ 0% ∗ % / %+− − Hey Employer, Did You “Notice” My Text Message? INTRODUCTION Missy works as a waitress at a popular local restaurant. Missy has been diagnosed with gout, a medical condition characterized by recurrent attacks of inflammatory arthritis. Attacks are spontaneous, but when an attack occurs, it causes an excruciating pain in her foot, rendering her unable to perform her job as a waitress. Missy was scheduled to work on Saturday afternoon—the restaurant’s busiest night. However, a few hours before her shift started, Missy began experiencing symptoms of her condition––her feet were so swollen that she was unable to walk. From past experience, Missy knew she needed to properly request leave. Under the employee handbook, the restaurant required her to call the Human Resources Director as soon as possible. Missy had a good relationship with her direct supervisor and usually reported ordinary absences to the supervisor. At the start of her shift on Saturday, Missy sent her direct supervisor a text message conveying that her foot was swollen and she could not come into work. The General Manager of the restaurant terminated Missy before the start of her next shift for noncompliance with the employee handbook, stating that Missy failed to give timely notice and provide notice in the correct form. Missy brought a retaliation claim against her employer, alleging that she was actually terminated for taking Family Medical Leave Act (“FMLA”) leave and further that her employer’s justification of noncompliance was a pretext for discrimination. 1 Disputes can and often do arise when employees contact employers using nontraditional forms of communication or informal conversations in an attempt to provide “notice” of unforeseeable leave under the FMLA. 2 The FMLA allows covered employees to take time off from work for medical reasons and prohibits employers from taking adverse action against the employee for taking such leave. 3 Since the 2009 revisions to the FMLA notice provisions, courts have continued to issue inconsistent rulings on what constitutes sufficient notice in cases of unforeseeable Copyright 2017, by MELISSA J. SHAFFER. 1. Family and Medical Leave Act, 29 U.S.C. §§ 2601– 2654 (2012) [hereinafter FMLA or the Act]. 2. Elijah Yip, Text Me, Maybe? Maybe Not!, HAW. EMP. L. LETTER, Aug, 2013, at 3. 3. See Kenza Bemis Nelson, Employer Difficulty in FMLA Implementation: A Look at Eighth Circuit Interpretation of “Serious Health Condition” and Employee Notice Requirements, 30 J. CORP. L. 609, 611–12 (2005). 914 LOUISIANA LAW REVIEW [Vol. 77 leave as well as when termination for noncompliance is justified. 4 The unclear jurisprudence is especially troublesome in light of modern forms of communication, such as text messaging, permeating the professional realm and being used for employee–employer communication. 5 The divided jurisprudence is attributable to, among other things, the ambiguous language of the FMLA notice provisions and the courts’ failure to interpret those provisions in accordance with the Act’s purpose. 6 The inconsistencies regarding the employer’s authority to terminate employees who fail to adhere to call-in procedures and the employee’s ability to disregard policies under certain justifications jeopardize the employer’s ability to conduct normal business operations. 7 Conversely, the inconsistencies regarding the employee’s ability to disregard policies under certain justifications disadvantage employees who find themselves without a job during times of medical emergencies. 8 Given the stated purpose of the FMLA—to ensure security for both the employer and the employee 9 —the current notice provisions for unforeseeable leave under the Code of Federal Regulations 10 must be amended to replace the rigid rule of compliance with a two-stage notice procedure. A two-stage notice procedure will guide courts in determining whether the employees should recover under their retaliation claims despite noncompliance with employer policies. Part I of this Comment provides an overview of the FMLA and corresponding federal regulations, focusing on the purpose of the 2009 revisions and the policy concerns underlying the FMLA. Part II examines the ambiguous language of the FMLA notice provisions and the conflicting jurisprudence in cases of unforeseeable leave, examining each 4. See Kristine Cordier Karnezis, Adequacy of Notice to Employer of Need for Leave Under Federal Family and Medical Leave Act of 1993, 184 A.L.R. 171 (2003). 5. Id. (“A friend who managed a local restaurant once complained to me about the questionable work habits of his young employees. ‘They don’t call in to say they’ll be late to a shift. They text me!’ My friend can now say that a court shares his sentiment, at least when it comes to exercising rights under the Family and Medical Leave Act (FMLA).”). 6. See Nelson, supra note 3, at 613. 7. Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information, 72 Fed. Reg. 35,550, 35,552 (proposed June 28, 2007) (codified at 79 C.F.R. 825 (2016)). 8. Id. at 35,557. 9. 29 U.S.C. § 2601 (2012). 10. Id. § 2654 (“The Secretary of Labor shall prescribe such regulations as are necessary to carry out subchapter I of this chapter and this subchapter not later than 120 days after February 5, 1993.”); 29 C.F.R. §§ 825.300–825.313. 2017] COMMENT 915 element of notice—timing, content, and form. Part III analyzes the implications of the current state of the law on employers and employees. Part IV argues that Congress should amend the Code of Federal Regulations to include a two-step notice process in cases of unforeseeable leave to clarify the law and provide employers and employees with more consistency and security. I. AN OVERVIEW OF THE FMLA The National Partnership for Women and Families drafted the FMLA, which was signed into law on February 5, 1993. 11 The FMLA was the first and only national law aimed at helping working men and women balance the conflicting demands of work and family. 12 The law allows eligible employees 13 of covered employers 14 to take up to 12 workweeks of unpaid, 11. Celebrating 20 Years of Job-Protected Leave — and Working to Help Even More Families, NAT’L PARTNERSHIP FOR WOMEN & FAMILIES, http://www.national partnership.org/issues/work-family/fmla.html [https://perma.cc/4B5T-D7XU] (last visited Oct. 10, 2016). See also About Us, NAT’L PARTNERSHIP FOR WOMEN & FAMILIES http://www.nationalpartnership.org/about-us [https://perma.cc/Z2A8-LQ95] (last visited Oct. 10, 2016) (“The National Partnership for Women & Families is a nonprofit, nonpartisan 501(c)3 organization located in Washington, D.C. [F]or four decades, [they] have fought for every major policy advance that has helped women and families.”). 12. Id. 13. 29 U.S.C. § 2611(2) (defining “eligible employee” as “an employee who has been employed—(i) for at least 12 months by the employer with respect to whom leave is requested under section 2616 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period”; eligible employee “does not include—(i) any Federal officer or employee covered under subchapter V of chapter 63 of Title 5; or (ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50”). 14. Id . § 2611 (4)(A)(i) (defining “employer” as “any person who is engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year; (ii) includes—(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and (II) any successor of interest of an employer; (iii) includes any ‘public agency’, as defined in section 203(x) of this title; and (iv) includes the Government Accountability Office and the Library of Congress. (B) Public Agency, for purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.”). 916 LOUISIANA LAW REVIEW [Vol. 77 job-protected 15 leave per year for medical reasons such as the birth or adoption of a child, care of a spouse, child, or parent with a “serious health condition,” or the employee’s own “serious health condition” that makes the employee “unable to perform the functions of the employee’s job.” 16 Congress enacted the FMLA to prevent employment discrimination against employees with serious health conditions, to allow pregnancy leave for women, and to allow men and women to participate in early child-rearing stages without compromising job security. 17 Specifically, in section 2601 of the Act, Congress stated that there is inadequate job security for employees who have “serious health conditions that prevent them from working for temporary periods.” 18 This section also states that the primary responsibility of caring for family falls on women more than men and interferes with women’s work to the extent that it encourages employers to discriminate against them in employment decisions. 19 Based upon these findings, Congress enacted the FMLA to promote the stability and economic security of families in a way that also accommodates the legitimate interests of employers. 20 A. Employees Must Give “Notice” of the Need for Leave Although the FMLA provides employees with job...