In today’s world of smart devices, 5G wireless, and other technological advances, employers and employees are communicating in more ways than ever. Gone are the days when all employer-employee communications take place via face-to-face, writing, or telephone line. This modern reality also may have an impact on your Family and Medical Leave Act case, especially if your employer tries to oppose your submission of notice based on the media you used, not the content of the communication. As with all FMLA cases, the issues in your case may be intricate and complex, so you should not hesitate in retaining an experienced Atlanta FMLA lawyer.
In terms of modern media platforms and FMLA notice, the most recent case comes to us from West Virginia.
The employee, K.R., was an assembly line worker for an auto parts manufacturer. In June 2019, K.R. required an emergency appendectomy. K.R. sent his supervisor a communication explaining his situation via Facebook Messenger, which he and his supervisor earlier had used to discuss a previous illness that forced K.R. to miss work.
The worker experienced complications as a result of his surgery and his doctors later re-admitted him to the hospital. K.R. allegedly communicated all updates to his supervisor via Facebook Messenger.
The employer eventually fired K.R. for “job abandonment” based on his absences in August 2019. When the employee sued for FMLA violations, the employer argued that K.R.’s Facebook messages were inadequate to satisfy the law’s notice obligations. The employer based its argument on the existence of its “approved call-in line” for reporting absences. Because the worker hadn’t used that phone line, he hadn’t placed the employer on notice for purposes of the FMLA, according to the defense team’s argument.
Anything that the Employer Has ‘Regularly Accepted’ May Be a Viable Medium
In August of this year, the 4th Circuit Court of Appeals rejected that contention by the employer. The court explained that the notice requirements of the FMLA and its regulations are broader than what the employer argued. The law and regulations say that to provide FMLA-related notice to your employer, you must utilize a means that is “usual and customary.” The regulations, according to the court, encompass both the employer’s formal procedures enshrined in its policies and “any method that an employer has, by informal practice or course of dealing with the employee, regularly accepted.”
A few years earlier, the 6th Circuit Court of Appeals reached a similar conclusion. In that case, the court explained that an employee can satisfy the FMLA notice requirement either by following the employer’s “official written policy” or by following the “unwritten custom” typically used in the employer’s workplace.
The 11th Circuit appears not to have addressed this regulatory subsection (29 C.F.R. Section 825.303(c)) recently, but it has provided insight into ways in which an employer may be “on notice” regarding an employee’s FMLA rights even in the absence of a formal notice. In a 2021 11th Circuit case, the plaintiff was a worker who fell in the workplace breakroom. The employer’s FMLA administrator was present in the breakroom when the employee got hurt. That same administrator handled the employee’s workers’ compensation and workplace injury paperwork and went with the employee to the latter’s follow-up doctor appointments and physical therapy sessions.
These facts, coupled with the fact that the employer knew that the employee had four consecutive excused absences after the fall, were potentially enough to amount to valid notice, according to the court.
The FMLA provides many essential benefits and protections to you and your family. If your employer has denied you FMLA leave or otherwise taken action that violates the law, you may be entitled to compensation through a civil action. The skilled Atlanta FMLA litigation attorneys at the law firm of Parks, Chesin & Walbert are here to help. Our team is dedicated to helping Georgia workers who have been harmed as a result of a violation of this or other employment laws. Contact us through this website or at 877-986-5529 to schedule a consultation.