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Fourth Circuit Evaluates Company’s “Usual and Customary” Notice For FMLA

Gestamp West Virginia, LLC. is an auto parts manufacturer in West Virginia. Kasey Roberts worked on the assembly line for the company. Gestamp requires employees to notify their group leader via a call line at least 30 minutes before their shift begins if they will be late or absent. The employees received a card with the call-in number, and the company posted the number on the bulletin board. The policy states that if an employee misses three consecutive shifts without calling in, the company may terminate them.

When Roberts had an emergency appendectomy, he sent Gary Slater, his group leader, a Facebook message. Roberts also messaged Slater via Facebook when Roberts developed an unrelated infection that would require him to miss more work. Slater responded via Facebook messages about both issues. Roberts missed two weeks of work and dropped off a doctor's note. When Roberts was about to return to work, his surgical wound became infected. He was readmitted to the hospital, and Roberts again messaged Slater via Facebook. He and Slater messaged several times over the next few days about when Roberts would return to work. Roberts returned to work for four days, but he felt pain again in his surgical area. Roberts messaged Slater on Facebook and left work early. Roberts messaged Slater several times over the next few days about not feeling well and that he was back in the hospital. Slater did not respond to those messages. Slater reported Robert's absence to human resources, and the company fired him for job abandonment.

In deciding whether the company engaged in FMLA interference, the Fourth Circuit evaluated whether Roberts provided adequate notice of his need for a new FMLA leave after returning to work. At the heart of that evaluation was whether Facebook Messenger was an acceptable "medium" to notify the company of his absence. The circuit court agreed with Roberts that the "usual and customary" procedure to notify an employer would include a company's regularly accepted informal practices. The messages between Slater and Roberts show they regularly discussed his medical issues, and the company did not ask that Roberts use the call-in line over this period. The circuit court ruled a jury should determine whether Robert's messages provided sufficient information regarding his need for leave