Here’s what happens when your managers don’t follow your written call-out policies


Under the Family and Medical Leave Act, an employer can insist that employees comply with the company’s “usual and customary” absentee notice procedures. Often those call-out procedures are part of written leave and attendance policies.

But, as one company found out the hard way, “usual and customary” absentee notice can transcend formal policies and procedures when managers bend the rules.

The case I’m discussing today involves a company with written attendance and leave policies. The defendant-employer required that employees notify their group leader via a call-in line at least 30 minutes before their shift begins if they would be late or absent. If an employee missed three consecutive shifts without calling in, the defendant would consider the employee to have abandoned his job and would terminate him.

Hey, that’s not in the rules!

The plaintiff-employee acknowledged the written attendance and leave policies. However, he claimed that through his dealings with the defendant, the company’s “usual and customary” notice procedures for leaves of absence expanded beyond its written policy. Specifically, the plaintiff argued that he complied with his FMLA obligations by notifying his manager of his medical absences over Facebook Messenger, which the company had previously accepted. (The court described several instances in which the plaintiff and his manager communicated over Facebook Messenger. They discussed the plaintiff’s hospitalization, the reasons, and when the plaintiff may return to work.)

Unfortunately for the plaintiff, the defendant terminated his employment when HR, out of the loop on the Facebook Messenger communications between the plaintiff and his manager, learned that the plaintiff missed three consecutive shifts without calling in.

So, the plaintiff sued for FMLA interference and retaliation.

But did Facebook Messenger become a “usual and customary” call-out method?

Earlier this month, the Fourth Circuit Court of Appeals agreed with the plaintiff that he had done enough to comply with the employer’s leave notice requirements even though he didn’t follow the rules on paper.

First, the appellate court recognized the FMLA doesn’t limit “usual and customary” to written policies and procedures:

A plain reading of “usual and customary” reveals that an employer may require compliance with the employer’s ordinary custom. Nothing in the regulation suggests that an employee must adhere to an official written policy to provide sufficient notice under the FMLA when a different unwritten custom is typically followed. (cleaned up)

From there, the Court easily determined that the plaintiff had raised a genuine factual dispute over whether it was “usual and customary” to report his absences by messaging his supervisor on Facebook. Indeed, the plaintiff’s messages with his supervisor routinely discussed his medical conditions, hospital stays, status updates, and expected return dates. Importantly, no one disciplined the plaintiff for using Facebook Messenger over this period or asked that he use the call-in line instead. And on earlier occasions, the company had credited the plaintiff with FMLA leave.

All told, the plaintiff will get a shot at trial to prove his FMLA claims.

Employer takeaways.

This one is pretty easy. As a general rule, if you have a call-out policy, it should be: (1) written, (2) communicated to employees and managers, and (3) followed to the letter.

If your policies prove inefficient or outdated — perhaps using instant messaging or text as alternative call-out methods makes more sense — update your policy accordingly.

Otherwise, you may be unwittingly stuck with all sorts of new “usual and customary” call-out procedures that your managers create for you.

“Doing What’s Right – Not Just What’s Legal”
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