Good news... finally. A number of recent FMLA court decisions reaffirm an employer’s right to discipline or discharge an employee for failing to follow the employer’s call out procedures.

In Righi v. SMC Corporation of America, No. 09-1775 (7th Cir., Feb. 14, 2011), the employee was away from work and failed to make any effort to contact his supervisor for more than a week, in violation of his employer’s call out procedure. This call out procedure provided that the failure to report to work for two (2) consecutive days without notifying his supervisor was grounds for termination of employment.

In Thompson v. CenturyTel of Central Arkansas, LLC, No 09-3602 (8th Cir., Dec. 3, 2010), the employee violated her employer’s call out policy when she failed to regularly call her supervisor (and either speak directly with her supervisor or leave a voicemail message) if she was going to be absent.

In Brown v. Automotive Components Holdings LLC, No. 09-1641 (7th Cir., Sept. 8, 2010), the employee violated notice procedures set forth in a collective bargaining agreement when she failed to show up for work or explain her absence in person or by phone within 5 days of receiving a quit notice from her employer.

In each of these cases, the former employee brought a claim for interference under the FMLA after being terminated for violation of the employer’s call out procedures.

In response, the employer defended the decision to terminate, citing that, under the FMLA, an employer has the right to insist that its employees comply with its “usual and customary notice and procedural” requirements related to taking leave.

The courts in each of these decisions agreed with the employers and denied the employee’s claims for interference under FMLA, finding that an employer may insist that its employees comply with its call out procedures.

The take away for employers?

Courts will uphold an employer’s decision to discipline or terminate an employee for failing to comply with a call-out procedure. In order to be well positioned to defend against an FMLA interference claim, employers should consider the following:

  • Establish clear, written call out procedures and ensure that employees are aware of those procedures.
  • Review the call out procedure to ensure that it is not more burdensome than the FMLA notice requirements for foreseeable and unforeseeable leave set forth in the current FMLA regulations, 29 C.F.R. § 825.302(d); 29 C.F.R. § 825.303(c).
  • Be sure that the employee is being disciplined/discharged for violating the call out procedure and not for taking protected FMLA leave in the first place.
  • Consistent with FMLA regulations, be prepared to create exceptions for unusual circumstances where the employee is unable to follow the procedure.
  • Make sure that the call out procedures are applied consistently to FMLA and non-FMLA absences (otherwise, you may not have an FMLA interference claim, but you will have a potential discrimination claim).