Policy mistake — how ‘bending the rules’ hurt this company in court

The Fourth Circuit gave a fired employee a second chance to prove his FMLA interference case. The problem? A supervisor bent the rules – so the company’s policy didn’t hold up in court.

Company policy in the spotlight

Gestamp is an auto-parts manufacturer in West Virginia. Its written policy requires employees who will be late or absent to notify their supervisor via a designated call-in line at least 30 minutes before their shift. If an employee misses three consecutive shifts without calling in, the company terminates the worker for job abandonment.

Kasey Roberts was an assembly-line worker at the company. In June 2019, Roberts had to have an emergency appendectomy. While at the hospital, Roberts notified his supervisor about the situation.

As an FYI, the two had a history of using Facebook Messenger to communicate about being out of work – despite the written policy.

So when Roberts learned that he needed emergency surgery, he again turned to Facebook Messenger to notify his supervisor. For several days after the surgery, the two corresponded on the app. Among other things, Roberts informed the supervisor that he’d miss two weeks of work to recover.  

Just before Roberts was scheduled to return to work, his surgical wound became infected, so the hospital readmitted him. Roberts informed the supervisor via Facebook Messenger, and they used the app to communicate status updates throughout Roberts’ leave.

The parties agree that Roberts was on FMLA leave from June 27 through Aug. 12, 2019.

Return to work gets derailed

When Roberts returned, he worked four days without incident. On the fifth day – a Friday – he said he was in pain while at work. He messaged his supervisor on the app, telling him about the pain. According to Roberts, the supervisor responded, “[Y]ou know your body better than anybody, so you do what you think you need to do.”

Roberts left work early that day. The following Monday, Roberts messaged the supervisor again to say that he couldn’t “make it in today.” The supervisor didn’t respond.

The next day, on Aug. 20, Roberts messaged the supervisor again, reporting that the doctor was readmitting him and that he didn’t know how long he’d be hospitalized. The supervisor didn’t respond. Even so, Roberts alleged the app’s read receipts showed that the supervisor had seen the messages – even if he didn’t respond.

The following day, the supervisor reported Roberts’ absence to HR. The supervisor testified that he couldn’t remember whether he told HR about Roberts’ hospitalization. The HR manager testified that the supervisor didn’t mention why Roberts missed work.  

At some point, the company fired Roberts. But the parties disagree about the termination date.

According to the HR manager, Roberts was terminated on Aug. 28, effective Aug. 21. But Roberts said that the company fired him on Aug. 21, which is the date listed on the company’s “Termination Checklist.”

And the company’s payroll record doesn’t clear the matter up. A screenshot of the Roberts’ payroll record says “Terminated on 8/28/19” at the top of the page. But the entry for 8/21/19 says, “Terminated for job abandonment.”

On Sept. 3, Roberts attempted to return to work for a second time. He had a doctor’s note to excuse his absence. That’s when he learned that the company had already “terminated [him] for job abandonment.”

Roberts sued for FMLA interference and retaliation. When the district court sided with the company, Roberts appealed to the Fourth Circuit. It revived his interference claim.

Court explains FMLA reg

As a general rule, the FMLA allows employers to require that their workers follow the company’s “usual and customary” procedures for requesting leave. And if an employee fails to do so, then “FMLA-protected leave may be delayed or denied,” the court explained.

The issue here was whether Roberts used a “usual and customary” method to notify the company of his need for leave when he was hospitalized on Aug. 20.

The company said Roberts didn’t follow the policy – he didn’t use the designated call-in line to report his absence.

The Fourth Circuit disagreed, saying the “relevant FMLA regulation” is more flexible than the company understood it to be.

Importantly, “usual and customary” procedures can include “any method” that the company has “regularly accepted,” whether by “informal practice” or as listed “in the employer’s written attendance policy,” the court explained.

Here, Roberts said he notified the supervisor about his need for additional FMLA leave through Facebook Messenger – a channel he’d used multiple times without incident. And his Facebook messages showed that he and his supervisor “routinely discussed his appendicitis and resulting hospital stays over that medium.”

Moreover, the supervisor nor the company had disciplined Roberts for using Facebook Messenger to communicate about FMLA leave. That was enough to plausibly allege Roberts notified the company through “usual and customary” procedures, the court held.  

Was notice adequate?

Next, the court had to decide whether Roberts provided adequate notice about his need for FMLA leave. The court considered Roberts’ leaves separately.

Regarding the hospital stay from Aug. 20 to Aug. 23, the court said Roberts provided adequate notice to the supervisor through Facebook Messenger.

The company disputed whether and when the supervisor read the messages that Robert sent.

But the court was not swayed, as the tech trail showed that the supervisor had opened the Aug. 20 messages at some point before Roberts returned to work on Sept. 3.

Next, the court looked at Roberts’ recovery leave from Aug. 24 to Sept. 3.

Roberts said the company fired him on Aug. 21 – while he was in the hospital. If that was true, then that meant “the company’s FMLA violation was complete before Roberts knew his return to work date.”

But the company argued that Roberts was fired on Aug. 28 – not Aug. 21.

The conflicting documentation couldn’t resolve the question about Roberts’ exact termination date, the court pointed out. That meant a jury needed to hear the case and judge the HR manager’s credibility.

In the court’s view, Roberts stated a prima facie case of FMLA interference. Thus, the Fourth Circuit remanded that claim for further proceedings.

Roberts v. Gestamp West Virginia, No. 20-2202, 2022 WL 3348618 (4th Cir. 8/15/22).

Key takeaways for HR

Court rulings are never short on nuggets of wisdom – and this one doesn’t disappoint. Here are four lessons for HR:

• Follow your company policy. Of course, you know exactly how important this is. But it’s probably a good idea to regularly remind your managers: Not following your own policies can be just as bad – or even worse – than having no policy at all. This company might’ve nipped the case in the bud if the supervisor had stuck to the policy rather than bending the rules about FMLA notifications.
• Provide FMLA training. There’s no question that intermittent FMLA leave can be tricky business. That’s why it’s crucial to train managers to properly handle FMLA issues. When this employee notified the manager that he had been hospitalized and didn’t know how long he’d be out of work, the manager should’ve reported that to HR immediately. Moreover, employees who take FMLA leave should receive guidance about expectations. Make sure your company has a good handout with info for employees. In this case, the whole mess might’ve been avoided if the worker had been given specific info about how to handle follow-up appointments.
• Ask follow-up questions. When managers report a no-call, no-show absence, ask open-ended questions to get more info before taking anything that could be considered an adverse employment action – especially when the absent employee had a recent medical issue that required FMLA leave.
• Create rock-solid documentation. It’s a fact that’s been proven time and time again: Documentation can make you or break you in court. This case might’ve turned out differently if the company’s paper trail had been clear about the employee’s termination date.