This one just smells fowl.  Delbert (not sure if he goes by Del or Bert, so I’ll just call him Delbert) decided not to show up for work at Tyson Fresh Meats on December 28. Instead, he asked his girlfriend, who also worked for Tyson, to report his absence for him. She obliged and told Delbert’s supervisor that he “would be absent or late” on December 28. On that same day, Delbert texted his supervisor, stating that he was “having health issues, would be out a few days, and needed to see a doctor.”

Delbert then missed the next couple days of work (Dec 29 and 30), but aside from the one text and his girlfriend’s vague report on December 28, he did not notify Tyson of his absences.  Not a word. On January 2, he was diagnosed with back pain and depression (which, usually go hand in hand, don’t you know?).  On January 3, he returned to Tyson’s health services office with a vague doctor’s note in hand stating “Delbert . . .  has been under my care  . . . for illness and was unable to work.”  At the time, Delbert signed a leave of absence application, which allowed the employee to check one of two boxes explaining the reason for leave — one box for FMLA leave and another box for non-FMLA leave.  The “non-FMLA leave” box was checked on Delbert’s application, although he later denied checking the box.

Tyson investigated Delbert’s time off and determined that he failed to follow Tyson policies for properly reporting his absences.   After all, Tyson call-in policies clearly stated:

“All management team members are expected to personally call their direct supervisor to report an unplanned absence or to report that they will be late.”

Note that the policy does not allow notice by text, by girlfriend, or even by carrier pigeon.  To the contrary, it specifically required Tyson employees to “personally call their direct supervisor.”  Seems fairly straightforward to me, you think?  Tyson investigated Delbert’s absences, and the Company Tyson relied on this policy to terminate Delbert’s employment because it considered all of his December absences to be unexcused.

So, you might understand my surprise when Delbert not only filed suit claiming FMLA interference and retaliation, but that a court found that he had thrown up enough evidence to try his case in front of a jury. Although the trial court had dismissed Delbert’s FMLA claims, the appellate court breathed life into his case, finding that Delbert’s vague text message and vague report from his girlfriend could have constituted notice of the need for FMLA leave.

Insights for Employers

Wow, this decision absolutely stinks.  And I use that as a legal term!

Bucking precedent established by other courts, this court ignored Tyson’s unambiguous call-in policy and allowed an employee ‘s personal texting practice to trump the Company’s call-in policy.  Yet, several other courts unreservedly have upheld policies of Tyson’s kind and specifically rejected FMLA claims where employees reported their absence by text.  If it doesn’t follow the call-in policy, they say, it’s not notice of the need for FMLA leave. Take, for instance, Lanier v. Univ. of Texas Southwestern Medical Cntr. (pdf), where the court found that the employee’s text message requesting to be taken off 24-hour-call duty on one night was insufficient to put the employer on notice that she was requesting FMLA leave to care for her father who was in the emergency room. Or even Banaszak v Ten Sixteen Recovery Network (pdf), where the employee simply texted that she was not well, and even after much prompting, texted, “As of today, I will be off until July 12th per my doctor for medical reasons.” Here, the court found that even these messages were insufficient to trigger FMLA protections and the plaintiff’s FMLA claims were dismissed.

These might seem like harsh results to some, but the FMLA regulations (requiring employees to follow the employer’s usual and customary call-in policies) are there for a reason.  And as employers, we follow the regulations to be treat our employees fairly and consistently and to ensure predictable results if these practices are challenged in court.  This court decision does not give employers, including Tyson, the result they deserve.

A hard lesson.  But it should be a lesson to the rest of us employers in a few ways:

  1. Texting: The court certainly was influenced by evidence indicating that Delbert and his supervisor regularly communicated by text message and, in particular, on previous occasions when he would be absent.  Keep in mind that an employer can uphold its usual and customary call-in procedures (e.g., requiring that an employee personally call (and not text) their supervisor) only if these call-in procedures are  . . . usual and customary, which means the employer must be consistent in how it handles employee call-ins.  This may be a hurdle for Tyson if its approach was inconsistent.
  2. Leave of Absence Applications: I typically counsel against an employer using a leave of absence aplication that requires the employee to check a box indicating whether the request for leave amounts to FMLA leave or not.  Why? Do you think the employee actually knows whether the FMLA applies to any given absence or not? Do all of your employees even know what FMLA stands for?  Sure, some or even most of them do, and you have a better argument in those situations that they understood what F-M-L-A meant, but I come across plenty of other employees who don’t.  Therefore, I counsel my clients to use a form that requires the employee to state more specifics about the reason for their absence (for any leave of absence), but not one in which they are required to determine at the outset whether FMLA applies or not.  Your employment counsel should have a model form you can implement right now.  If not, they aren’t an employment attorney.
  3. Use the Employee’s FMLA History Against Him: Delbert sounds like he was a serial (or kinda serial) absentee. Therefore, he knew — or by any objective measure should have known — what the rules were for calling in his absences.  So, use his history against him to defeat his FMLA claims here! Where an employee has regularly utilized FMLA or medical leave in the past, courts have held that the employee should be aware of the employer’s practices for reporting an absence.  If you can show the employee had followed the policy in the past and did not do so here, you have a strong defense on the FMLA notice requirement.  See, for example, Ritenour v. State of Tennessee, which I blogged about here.  In that case, the court effectively held the plaintiff to a heightened standard because it was clear she took leave on previous occasions and knew what the call-in requirements were.  Delbert should be held to the same standard here, and on remand to the trial court, Tyson should use this argument to their advantage.  If Delbert correctly used the call-in policy in the past (i.e., occasions when he actually called into his supervisor to request time off), then he knew how to use it for his December absences.  When he didn’t, his absences lost the protection of the FMLA.