Can you believe this song is five years old?
Employee fails to follow a detailed call-out procedure; gets suspended.
In Acker v. General Motors (5th Cir.; opinion here), the employer had a very detailed attendance policy. But, GM didn’t conjure it out of thin air. Rather, the attendance policy, which included various call-out procedures, was a product of negotiations with the autoworkers union.
GM also had a policy for requesting FMLA leave. Union benefit representatives at each GM facility assisted employees with FMLA leave requests. And, GM had a third-party administrator to process FMLA requests.
By September 2014, the plaintiff, Mr. Acker, had used up all his available time off. Two months later, he requested FMLA and was approved for intermittent FMLA leave from November through the following May. Nevertheless, he began receiving discipline for several unapproved absences according to GM’s procedures, which culminated in a 30-day unpaid suspension:
- 11/14: Mr. Acker failed to call in 30 minutes before his shift began and missed the FMLA absence call-in time by over an hour.
- 11/22 and 11/23: Mr. Acker is absent; none of his three calls to the GM shift absence line were timely.
- 12/6 and 12/8: Mr. Acker is absent again. He calls the GM absence line, but not the Benefits & Services line.
Employee sues for FMLA violations and loses because he failed to follow the rules.
Even when FMLA leave is unforeseeable, the employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. You know this already because, among other things, my blog posts are so engaging. And, if you don’t, scan up the page a bit.
Generally, an employer does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA. Therefore, an employer does not interfere with an employee’s FMLA rights by enforcing its call-out procedures (and disciplining the employee) — unless there are some mitigating unusual circumstances.
So, against this backdrop, how do you think Mr. Acker’s FMLA interference claims fared? If you answered, “Not well,” you should be like…
Here’s what the Fifth Circuit had to say:
It is undisputed that Acker’s phone records show he failed to call in timely under GM’s procedure on the dates for which he received disciplinary layoff: November 14, 22, 23, and December 6 and 8. Acker cannot rely on his deposition testimony, inconsistent with phone records that he described as the “universe” of his calls during the relevant period, to create a fact issue on timeliness.
Oh, wait. Our discussion wouldn’t be complete without some mention of the “unusual circumstances” that may have precluded Mr. Acker from following GM’s usual and customary call-out rules.
(Wait for it…)
Acker testified that his disability causes him to experience severe disorientation, blackouts, grayouts, heart palpitations, and extreme fatigue when in the acute phase, and that his disability can reach the acute phase suddenly and could constitute a sudden medical issue or emergency. He offered no factual support, however, that he reached the acute stage or experienced a medical emergency on the days in question. Indeed, he testified that he was too “dizzy” to follow GM’s call-in procedure only on November 14, but he was given FMLA leave and was not disciplined under Doc. 8 for that absence. He did not explain why “unusual circumstances” left him capable of calling one line, but not the other: on November 22, December 6, and December 8, Acker timely called the GM absence line, but failed to call the GM Benefits & Services line. There is no proof that unusual circumstances arising from his condition prevented him from complying with GM’s call-in policy with respect to one line but not the other.
- Apply your call-out rules. You’ve got ’em, right? Psst, they apply to intermittent FMLA leave as well.
- Ditto under state and local law. Many states have their own FMLA laws. Some cities, like Philly, even have paid sick leave. The eligibility requirements may vary; but, generally, employees still have to follow your call-out procedures.
- Enforce FMLA notice requirements too. If your employee is taking a continuous block of FMLA leave, you’re not going to require the employee to call out every day. But, you should require the employee to provide 30-days notice of leave when its foreseeable. That’s what the FMLA requires. If the leave is foreseeable and the employee fails to provide proper notice, you can delay the start of FMLA leave.