Social Media Posts May Meet FMLA’s Notice Requirements

The Family and Medical Leave Act (FMLA) requires an employee to provide his employer with notice of his need for leave via the employer’s “usual and customary” procedures. A court recently determined that an employee’s Facebook Messenger posts to his supervisor may satisfy this notice requirement even though the employer required the use of a call-in line to report absences.

In this case, Roberts v. Gestamp West Virginia, LLC, the employee was hospitalized for an emergency appendectomy. He sent his supervisor a message via Facebook notifying him of the situation, and they continued to correspond, via Facebook Messenger, over several days after his surgery. The employee used this method for contacting his supervisor because the supervisor had used it to communicate with him about an earlier, unrelated absence. The employer designated the employee’s time off as FMLA leave.

The employee returned to work for four days but was re-hospitalized. While he continued to message his supervisor via Facebook Messenger with some updates during this next, “murkier” period of absences, he was ultimately discharged for job abandonment. In response to his FMLA lawsuit, the employer argued that the employee failed to give proper notice of his need for continued leave because he used Facebook Messenger instead of the employer’s “usual and customary” call-in procedures.

The court reviewing this case decided that the FMLA’s notice procedures are flexible, and that an employer’s “usual and customary” procedures can include “any method that an employer has, by informal practice or course of dealing with the employee, regularly accepted, along with those in the employer’s written attendance policy.” It explained that while an employer’s written leave policy may be evidence of what is “usual and customary” for reporting absences, a court can also consider the employer’s informal practices in determining whether sufficient notice has been given of a need for leave. Since the employer provided FMLA leave with notice given via Facebook Messenger at the beginning of the employee’s leave, his continued use of it may have satisfied the notice requirements of the FMLA.

The decision in this case from the Fourth Circuit Court of Appeals is not binding on Nevada courts. But the case still provides important lessons for employers on FMLA notice. First, your written procedures may not carry the day; a court may also look at actual practice, i.e., how your supervisors are actually communicating about leave with employees. Second, if your supervisors are texting with employees about absences or using social media or other informal methods to communicate with them, those conversations are highly relevant to the FMLA analysis. An employer will need to keep a written record of those conversations and realize that it cannot suddenly switch the means of communication and require compliance with more formal procedures without clear notice to the employee.

KZA’s attorneys are well versed in the FMLA and can help you determine the best FMLA procedures for your company. Please contact them with your questions about this case and/or the FMLA.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.