Fourth Circuit Rules That “Usual and Customary” Notice Procedures Are Not the Same as a Written Policy

By: Shelby A. Hicks-Merinar

Published: August 26, 2022

In Roberts v. Gestamp West Virginia, LLC, the Fourth Circuit Court of Appeals—which covers Maryland, West Virginia, Virginia, North Carolina, and South Carolina—held that when an employer allows an employee to use an informal absentee-notice method other than the employer’s specified call-in procedure, the employer may not be allowed to argue that the employee failed to comply with the employer’s notice policy when requesting Family and Medical Act (FMLA) leave.

While at the hospital for an emergency appendectomy, the plaintiff sent his manager a Facebook message alerting him to the situation. Although the employer had an established call-in line to be used to report absences, the plaintiff’s manager responded to the Facebook message and corresponded with the plaintiff over the next several days about his surgery and his recovery period, including asking the plaintiff follow-up questions regarding his expected absences.

After being back at work for several days, the plaintiff felt more pain from his infection site. The plaintiff informed his manager of his pain and left work early. Over the course of the following days, the plaintiff sent Facebook messages to his manager, notifying him that he would not be returning to work and was being readmitted to the hospital for the same infection. His manager did not respond to these messages but reported the plaintiff’s absences to human resources. When the plaintiff returned to work with a doctor’s note, he learned that he had been fired.

The plaintiff sued for wrongful discharge, FMLA interference, and FMLA retaliation. Both the district court and the Fourth Circuit agreed that the plaintiff’s FMLA claims turned on whether the plaintiff had provided adequate notice of his need for FMLA during his readmission to the hospital. The district court dismissed the FMLA claims. The district court held that the FMLA regulations permit an employer to “require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” Because the plaintiff sent his manager a Facebook message to report his absence rather than using the call-in procedure, the district court determined that he had not given sufficient notice.

The Fourth Circuit disagreed. Reversing the lower court’s decision, the Fourth Circuit held that the FMLA regulation governing call-in procedures was more flexible than the lower court suggested. Instead, the Court determined that the terms “usual and customary” could refer to any procedures that an employer has accepted “by informal practice or course of dealing with an employee.” The Court further noted that nothing in the text of the regulation limits the scope of a “usual and customary” policy to an employer’s written policy. Although the written policy could be used as prima facie evidence of what is “usual and customary,” nothing precludes an employee from rebutting that presumption with evidence showing that the employer also accepts other methods of absentee notice. In this case, because the plaintiff and his manager discussed his medical condition and status via Facebook messenger and because the plaintiff had been credited with FMLA leave based on those conversations without discipline, the Court determined that whether the plaintiff followed the “usual and customary” notice procedures was best left resolved by a jury.

The Fourth Circuit’s opinion is an important reminder to employers to ensure that call-in procedures are consistently enforced to eliminate the risk that informal notice methods could be accepted as “usual and customary.”

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