Auto plant worker can use Facebook to request medical leave, court says - Reuters

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Summary
Law firms

Factory worker used Facebook messages instead of call-in line to request leave
Past Facebook use established 'customary' practice, court says

(Reuters) - A U.S. appeals court on Monday said an auto parts plant worker likely gave sufficient notice of his need to take medical leave following emergency surgery by sending his supervisor Facebook messages rather than using the call-in line required by company policy.

A unanimous three-judge panel of the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals said plaintiff Kasey Roberts had shown that he had communicated with his supervisor at Gestamp West Virginia LLC via Facebook in the past, establishing a "usual and customary" practice for reporting absences.

The court revived Roberts' claim that Gestamp interfered with his rights under the federal Family and Medical Leave Act (FMLA) by firing him for missing several days of work because of an infection that stemmed from his emergency appendectomy.

Richard Walters of Shaffer & Shaffer, who represents Roberts, said he was pleased with the decision. He said the ruling is significant because there is little case law on whether workers can use informal channels to notify employers of their need for medical leave.

Gestamp did not immediately respond to a request for comment.

The FMLA entitles workers to up to 12 weeks of unpaid medical leave after giving notice to their employers. Federal regulations require workers to comply with an employer's “usual and customary notice and procedural requirements for requesting leave.”

Roberts in 2019 had taken about six weeks of leave to undergo and recover from the appendectomy, after notifying his supervisor on Facebook Messenger, according to court filings.

A few days after returning, Roberts left work after he began experiencing pain and was ultimately hospitalized for an infection in his surgical wound. He sent the supervisor several Facebook messages, according to filings in the case.

Roberts missed about three additional weeks and was fired for job abandonment. He sued in federal court in Charleston, West Virginia, claiming Gestamp interfered with his FMLA rights and retaliated against him.

A federal judge in 2020 dismissed the case, saying the call-in line was Gestamp's "usual and customary" system for medical leave notice.

The 4th Circuit on Monday reversed, finding that Roberts' use of Facebook to notify Gestamp of his earlier leave could convince a jury that the practice was sanctioned by the company.

"'Usual and customary' procedures 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," Circuit Judge Albert Diaz wrote.

The panel also included Circuit Judges Allison Rushing and Toby Heytens.

The case is Roberts v. Gestamp West Virginia LLC, 4th U.S. Circuit Court of Appeals, No. 20-2202.

For Roberts: Richard Walters of Shaffer & Shaffer

For Gestamp: Ronald Flowers and Travis Ramey of Burr & Forman

Our Standards: The Thomson Reuters Trust Principles.

Daniel Wiessner

Thomson Reuters

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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