George Bernard Shaw once said that “the single biggest problem in communication is the illusion that it has taken place.” When it comes to the FMLA, such illusions can result in a court case involving a he-said/she-said argument.
The FMLA does include communication requirements and often, a disconnect begins when an employee first puts an employer on notice of the need for leave. While some employers want to require an employee to specifically request “FMLA” leave, employees are not required to do so. The notice they provide can be made in many ways. One court indicated an employee’s excessive crying was enough to put the employer on notice of the need for leave.
In short, employers should be on the lookout for an inkling that an employee’s absence might qualify for FMLA protections. One employer ended up in court trying to argue how an employee didn’t provide appropriate notice. Read on.
Joe Employee broke his ankle and called in to work, leaving a voice mail with the HR department. The voice mail was the focus of some of the disagreement. Joe argued that he provided information about the injury and how much time off he needed, while the employer argued that all he said was that he had an accident and would not be at work that day. Joe also called Ben, his supervisor, but got no answer. Then Joe told his brother (Adrian - a coworker) to inform Ben about the absence.
The communication between Adrian (brother) and Ben (supervisor) also lent itself to challenge, particularly regarding when or even if it took place. Ben argued that he had no information regarding Joe’s accident or need for leave. Whether Ben’s recollection was accurate was also drawn into question, as he indicated that he told Harold, his manager, about Joe’s now three-day absence, but Harold denied this.
Meanwhile, Joe was expecting to hear from HR regarding FMLA leave, as he had taken such leave in the past, and they had contacted him. He believed the information regarding his accident and need for leave had been communicated. It never occurred to him to contact HR when he didn’t hear from them.
A couple weeks later, Joe tried to provide HR with supporting documentation of his injury but was told that he was terminated under the company’s no-call/no-show policy. Whether Joe actually provided the documentation was also in question.
The employer tried to get the case thrown out, but failed, mostly because of the communication breakdown. The lack of documented evidence supporting the employer’s arguments also did not help its argument. This untidy game of telephone involved many people who could not verify conversations.
If you (or anyone acting on behalf of the employer) have an inkling that an absence might qualify for FMLA protections, at least do some investigating and ensure that conversations are captured or documented, and that everyone involved is on the same page. Such steps can help avoid a he-said/she-said argument over who said what, to whom, and when.
Villagomez v. Kaolin Mushroom Farms, Inc., Eastern District of Pennsylvania, No. 17-3929, March 15, 2019.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.