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

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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. § § 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

employee9—the 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. §§ 825.300–825. 313.