Compliance Corner

Federal Updates

Fourth Circuit Revives Claim that Social Media Message Was Required Notice for FMLA Leave

September 27, 2022

On August 15, 2022, the US Court of Appeals for the Fourth Circuit held in Roberts v. Gestamp West Virginia, LLC, that a jury must decide whether an employee’s Facebook message to his supervisor satisfied the notice requirements under the Family and Medical Leave Act (FMLA).

The employee underwent emergency surgery in 2019 and sent his supervisor a Facebook message indicating he would miss two weeks of work due to the surgery. The employee and his supervisor communicated via Facebook during his leave, including the need for additional time off. The employee successfully returned to work for four days before experiencing additional pain. The employee met with his supervisor to discuss additional time off to recover and sent additional Facebook messages indicating he was readmitted to the hospital. The supervisor did not respond to those messages and reported his absences to Human Resources. When the employee finally returned to work, he was informed his employment was terminated due to job abandonment.

For leave to be covered under the FMLA, the employee must notify the employer of the need for leave. The FMLA requires employers to have “usual and customary” absentee notice procedures. This employer’s written policies required employees to utilize a call-in line to notify of a late arrival time or an absence on the scheduled workday. If an employee misses three consecutive shifts without calling in, the policy considers it job abandonment and the employee is terminated.

In Roberts v. Gestamp West Virginia, LLC, the employee was terminated while on leave for a health issue and filed suit alleging FMLA retaliation, FMLA interference and wrongful discharge. The former employee argued he properly notified his supervisor while out on leave, and his absences should not have been considered job abandonment. A district court granted summary judgment for the company on all counts, and the former employee appealed. The Fourth Circuit affirmed the lower court’s ruling on FMLA retaliation and wrongful termination, but it vacated the judgment on FMLA interference. The Fourth Circuit concluded that although the employer had a written leave policy because the supervisor had previously accepted the informal absentee notifications through Facebook, a reasonable jury could find that these Facebook messages satisfied the employer’s “usual and customary” notice procedures under the FMLA.

This case provides an important reminder to employers that not only do they need to have written policies and procedures in place, but supervisors need to be trained in how to properly implement the policies. Allowing informal notifications may lead to an expanded “usual and customary” notice procedure. If supervisors are notified of an employee’s potential need for medical leave, it is important to engage with the Human Resources department to ensure proper procedures are followed.

Roberts v. Gestamp West Virginia, LLC »