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

AuthorMelissa J. Shaffer
PositionJ.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
Pages913-946
Louisiana Law Review
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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 a nd Medical Leave Act, 29 U.S.C. § § 26012654 (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, 61112 (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 employeeemployer 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 FMLAto ensure security for both the employer and the
employee9the current notice provisions for unforeseeable leave under
the Code of Federal Regulations10 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, Adequa cy of Notice to Employer of Need
for Leave Under Federa l Family and Medica l 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 Fa mily
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. §§ 825.300825. 313.

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