Archive for August, 2011

Social Media 101: Regulate

            Social media is everywhere and is here to stay.  This summer we have seen the good side of social media through the wonderful on-the-spot news updates during the revolutions and uprisings in the Arab world, most recently in Libya and Syria.  We have also been witness to the dark side, as demonstrated by the downfall of New York Representative Anthony Weiner and his unfortunate distribution of inappropriate personal pictures through Twitter.  The ubiquity of social media has caused a headache for employers, however.  Just how much can and should an employer regulate the social media use of its employees?

Employers can regulate social media, but should do so carefully

            Though employers can regulate their employees’ social media use, employers need to use caution and do so through carefully-established written policies.  In cases where complaints have been filed by employees regarding adverse employer action based on social media use, employers have prevailed where the actions were taken consistent with preexisting written policy. 

            For example, on August 18, 2011 the National Labor Relations Board’s Office of General Counsel released a summary of fourteen NLRB cases involving social media from July 2010 to August 2011.  [Note that the National Labor Relations Act, under which the NLRB acts, applies to most private sector employees whether or not the workplace is unionized.]  This document can be viewed at https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases.

            In short, except in four specific cases where the use of social media constituted concerted activity regarding terms and conditions of employment, the NLRB held that employers could in fact discipline and terminate employees for derogatory and offensive social media posts about the employer or other employees.  In each of these cases, however, the employer had carefully-drawn social media policies which themselves did not prohibit the use of social media for protected concerted activity.

            In contrast, the NLRB rejected employer actions taken under social media policies deemed to potentially infringe on protected concerted activity.  In one case, a nurse posted a complaint on her Facebook page about a coworker’s frequent absences along with a request for other employees to contact her with any additional information.  The nurse was terminated on the basis that the post was in violation of written policy forbidding the dissemination of private or confidential information.  Though the nurse was clearly engaging in concerted activity in this example, thus making her discharge inappropriate, the NLRB also noted that the written policy was flawed since it was overbroad.  There were no limitations or examples in the written policy of what was deemed “confidential” or “private,” and the policy could be reasonably interpreted to reach concerted activity regarding terms and conditions of employment. 

So how should I regulate social media?

            The first step in regulating employee use of social media is to craft a carefully-worded social media policy.  The policy should never prohibit use of social media to engage in concerted activity regarding terms and conditions of employment.  The policy must also take care to be sufficiently concrete and narrow so that there is no doubt that concerted activity is not covered.  For example, if you want to prohibit the dissemination of confidential information, a valid and indeed practical restriction, explain what you mean by confidential information, and do not include terms and conditions of employment.  If you want to limit who can speak on behalf of the employer to the media, that is wholly acceptable and indeed a good practice.  But again, do not instruct employees that they cannot speak to any member of the media regarding their personal terms and conditions and employment. Finally, take care not to reach too far.  Do not attempt to regulate private conduct and statements which in no way bear on the employer. 

            The second step is to follow up and enforce the policy.  If an employee is posting inappropriate material through social media, such as private or confidential information or profane or harassing statements about supervisors or other employees, take action.  You do not want to open yourself up to an argument that employees had no reasonable expectation of adverse action because you as the employer let too many violations go in the past.  Furthermore, if an employee is targeting another employee with harassing or profane communications, and you as the employer take no action, you could be opening your business up to potential liability.  Take all reports of inappropriate social media use seriously and follow up. 

           Please note, however, that your investigation should involve only publicly-available information.  It should go without saying, but do not break into an employees’ Facebook or Twitter account if you have not been granted access.  Such access could potentially violate the Federal Stored Communications Act, 18 U.S.C. § 2510 et seq. if the employer is not accessing information stored on its own server.  The Stored Communications Act imposes both civil and criminal liability, and has been held to apply to an employer’s act of gaining unauthorized access to an employee’s private social media group, a group maintained on a third-party server.  You can investigate stored on your own server, but keep investigations of information maintained on third-party servers to that which is publicly-available.

The upside

            But even though social media can appear dangerous, and employers must treat employee social media use with caution, don’t underestimate the good that can come from social media.  Social media can be a wonderful tool for recruiting and for vetting potential hires.  Smart use of social media can also build goodwill and camaraderie between employer and employees and among employees. 

Conclusion

            Don’t fear social media.  It’s here to stay, and it can be good for the employer-employee relations.  Just be sure to craft a sound, focused, detailed social media policy, and follow up on any reports of inappropriate social media use by employees using above-board, legal methods. 

Amy D. Cubbage, Esq.

 
 
 
 
 
 
 
 
 
 
 
 
Amy D. Cubbage, Of Counsel in our Louisville office, practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts, and employment litigation. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. Ms. Cubbage can be reached at (502) 327-5400 or acubbage@mmlk.com.

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The Ties That Bind: Is Your Arbitration Agreement Enforceable and Binding

Arbitration agreements are effective mechanisms to resolve employment disputes more efficiently and affordably than traditional litigation.  They are becoming standard practice in most at-will employment situations, and for good reason.  They provide a simple and informal way to resolve employment disputes, as they are relatively inexpensive, more expedient, and reduce legal costs by avoiding the expense of litigation.  Most employers have either already implemented an arbitration agreement program for their employees or have considered it.  But are they enforceable? 

                The answer, fortunately, is yes, but it is important to keep in mind the most basic characteristic of arbitration agreements—they are contracts.  Both Federal and State laws foster a strong policy favoring arbitration, but each provides that the enforceability of agreements requiring arbitration for work-related disputes will be determined by applicable state law regarding contract principles.[1]  For instance Kentucky law, similar to most states, provides that written agreements to submit to arbitration are “enforceable and irrevocable, save upon such grounds as exist at law for the revocation of any contract”.[2]  In essence, if the agreement constitutes a valid contract, then it is an enforceable arbitration agreement.  But what are the grounds that exist for the revocation of a contract—an arbitration agreement?

                The majority of published case law suggests that arbitration agreements are most commonly challenged on the basis that they lack mutuality of contract, lack adequate consideration for the contract, or are unconscionable.   These tripping blocks can be easily avoided by drafting a carefully-worded arbitration agreement and providing employees ample notice and opportunity to review the agreement. 

Some things to keep in mind in drafting and implementing arbitration agreements:

                Both parties to the contract must be mutually bound to arbitrate—the agreement must not permit the employer to litigate, while limiting the employee to arbitration as his or her only means for dispute resolution.  In addition, an employer can take certain actions to make contracts with their employees more mutual. For example, the contract may provide that both the employee and the employer share the same right to select or reject the arbitrator; the employer will pay for arbitration expenses; the arbitration will be held at a place agreed upon or convenient to the employee; and that the employee is guaranteed the right to an attorney throughout arbitration.

At will employment can be conditioned upon the employee’s acceptance of an arbitration agreement, but such acceptance must be knowing and voluntary.  An employer and employee are mutually waiving the write to pursue their claims and defenses in Court, it is important that the employer ensure that the employee has notice of the agreement, understands it, and knowingly assents to it.   Employers should keep in mind factors such as the employee’s background and knowledge, the amount of time the employee has to decide whether to sign or assent to the agreement, the clarity of the waiver, consideration for the waiver, and the circumstances surrounding the waiver.[3] It is not required that the waiver be made expressly or even signed as an employee can assent through action, such as by remaining employed.[4]  However, it is important that the employee be made fully aware of the agreement.

                Consideration is especially important in determining the enforceability of a particular arbitration agreement. The presence of adequate consideration is a prerequisite for finding any contract enforceable. In the employment context, “[a]greements to arbitrate as a condition of employment constitute consideration and are enforceable under the Federal Arbitration Act.”[5] Mutuality and consideration are closely related, for “even if the arbitration agreement was not a condition of employment, an arbitration clause requiring both parties to submit equally to arbitration constitutes adequate consideration.”[6] The adequacy of the consideration is based on the mutual obligation held by both parties.   Where “both are equally bound and obligated to arbitrate disputes,” the agreement is enforceable.[7] Where parties are held to equal standards and are given comparable rights under the terms of the contract, arbitration clauses are more likely to be enforced.

                Even where mutuality and consideration are found, to be enforceable the arbitration clause must not be found to be unconscionable. Contracts which do not include unreasonable or oppressive terms, and which are entered into under conditions favorable to the employee’s ability to fairly consider his options before signing [or assenting] are generally found to be conscionable and therefore enforceable.[8] An employer who seeks to include an arbitration clause in employment contracts should inform employees that their signature is not required to bind them, and that continued work and acceptance of employment benefits will be deemed as accepting and entering into an agreement to arbitrate.   Be careful, however, that you don’t overreach with the agreement.  Because the employer is the drafter of the agreement and can demand acceptance as a condition of employment, it is important not to limit the rights and remedies available to employees through arbitration.  The contract terms should allow for an employee to pursue all remedies he/she may have against the employer, but require those remedies to be pursued only through arbitration.  The inclusion of fair contract terms, combined with conditions and circumstances amenable to the employee’s ability to make a sound decision, will increase the likelihood that an arbitration agreement will be upheld. 

Remember, when drafting your arbitration agreement, make sure your agreement does not limit your employee’s substantive rights and remedies, and make sure the agreement mutually and equally obligates you and the employee to arbitration.   When entering into arbitration agreements with your employees, give them ample time to review the agreement and explain to them that by continuing and accepting the benefits of their employment they are agreeing to the contract.  And most importantly, consult with your legal team regularly to ensure that you have drafted and are implementing a binding and enforceable arbitration agreement.

Preston Clark Worley, Esq.

 
 
 
 
 
 
 
 
 
 
 
 
Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, criminal defense, litigation and telecommunications. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice. Special thanks to Allison Bosserman, Law Clerk, for contributions to this article.


[1] See Seawright v. American General Financial Services, Inc., 507 F.3d 967 (6th Cir. 2007).

[2] Kentucky Revised Statutes 417.050

[3] Id; see also Morrison v. Circuit City Stores, Inc., 317 F.3d 646. 668 (6th Cir. 2003).

[4] See Seawright, 507 F.3d at 974.

[5] Kruse v. AFLAC Int’l, Inc., 458 F.Supp.2d 375, 385 (E.D.Ky. 2006). 

[6] Id.

[7] Seawright, 507 F.3d at 972.

[8] See Shadeh v. Circuit City Stores, Inc., 334 F.Supp.2d 938, (W.D.Ky. 2004).

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Around the Virtual Water Cooler: Assessing, Implementing and Enforcing Company Social Media Policies in Light of Recent National Labor Relations Board Trends

It is old news that working-aged people are increasingly utilizing social media, both in and out of the workplace.  In fact, a recent Pew Research Institute study found that 60-69% of Generation Xers (34-45) and approximately one-half of Baby Boomers (46-64) now engage in social networking. Late last year, by several accounts, Facebook even surpassed Google to become the most popular Internet site.[1] 

As a result of these trends, social media data has become a notable consideration for employers — as part of the hiring process, as a marketing tool, as a productivity concern — and increasingly as a material factor in employment litigation.  Some social media considerations present new opportunities and oversight for employees, while others require prudence to avoid unforeseen liabilities.  To deal with these novel considerations, most employers have considered, if not implemented, social media-specific employee policies to complement their pre-existing workplace policies and procedures. It is essential, however, that such policies are narrowly tailored to the individual company’s goals and concerns, as well as to emerging trends in employment law. 

Often such trends become evident from, and may even be fed by, initial agency decisions and apparent agency emphasis.  Recently, one such trend has emerged via National Labor Relations Board (“NLRB”) actions.  The NLRB governs unfair labor practices within both unionized and non-unionized workplaces.[2]   Pursuant to the National Labor Relations Act (“NLRA”), 29 U.S.C. §151 et seq., NLRB has recently revealed that it has not overlooked the impact of social media on its mission.[3] 

The NLRA protects, among other statutory rights, “concerted activities.”[4]  The right to engage in “concerted activities” includes, in general terms, employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages, benefits, and their workplace environment.  In practice, “concerted activities” may include, for example, two or more employees meeting with their employer to talk about increasing their pay rate or other benefits, two or more employees speaking with their supervisor about an undesirable working condition or situation, or perhaps most frequently, two or more employees discussing their pay or other work-related issues with each other.  Traditionally, these “concerted activities” occurred within settings or via mediums which were obvious to, and often controlled by, the employer. The employer’s existing communications policies and/or general employment policies regarding employee communications — around the water cooler, in their supervisor’s office, on the phone, or via company e-mail — thus clearly governed.  It appears, however, that the definition of “concerted activities” is expanding to include social media networks and applications (Facebook, MySpace, Twitter, etc.), both during and outside work hours and locations.     

Three recent NLRB actions, each unique but clearly linked to one another, have clarified that social networking communications are on its radar screen, and included in the “concerted activities” it will protect.  In fact, such communications appear to be a current agency focus. 

            In October 2010, the NLRB filed a claim against a Connecticutambulance company, American Medical Response (“AMR”), after it fired Dawnmarie Souza (“Souza”).  Souza was fired approximately one month after she logged onto her home computer and posted derogatory comments about her boss and her employer on her Facebook page.  Co-workers thereafter commented favorably on her posts.  Such a firing may appear, without more analysis, to be both reasonable and relatively common.  However, the NLRB issued an unfair labor practices Complaint against AMR, alleging that the firing violated Section 8(a)(1) of the National Labor Relations Act. The NLRB argued that AMR interfered with Ms. Souza’s right to engage in “protected concerted activity,” specifically to engage in discussions with co-workers regarding the condition of her employment.  Though her employer claimed that she was fired for acts which precipitated a number of patient complaints against her, the NLRB maintained that not only was she illegally fired for posting comments on Facebook,[5] but that AMR’s “blogging and Internet posting policy” was overly broad.  Though the NLRB’s Complaint does not represent a final decision, it did occur after a period of investigation, and signaled a new area of concern for employers. Previously, the NLRB had appeared to consistently support employers’ rights to maintain order in the workplace, at least with respect to the Internet and social media.  Fortunately for the parties, but unfortunately for further analysis, the parties settled the matter this February 2011 when AMR agreed to revise its rules regarding employee internet communications, and to not punish employees for requesting union representation.  Souza’s personal discharge was resolved privately.

            Another social media firing, this time precipitated by tweets, did not have the same outcome.  A reporter for the Arizona Daily Star was encouraged to tweet to promote the paper and disseminate information to the public through social media applications.  The newspaper was still in the process of developing its formal social media policies.  He did as he was instructed, via a personal account which clearly identified his affiliation with the newspaper, and which was linked to his Facebook and MySpace accounts to affect his tweets to be posted on those sites as well.  After several of his tweets painted his city (Tucson), the newspaper, and a local television station in a negative light, he was warned about the nature of his tweets, told not to tweet about anything work-related, and advised to use another, less public, avenue to air his grievances.  A week later, the newspaper terminated his employment, citing its lack of confidence that he could conform to its “expectation of professional courtesy and mutual respect.”  The NLRB noted the employer’s discipline – restricting all work-related tweets – was overly broad and warned that if similar restrictions were proclaimed as new employee rules, such polices would likely violate the NRLA’s protections on “concerted activities.”  However, the NLRB ultimately issued an Advice Memorandum finding the firing was lawful, because his tweets “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment,” and because he had been given the opportunity to address his working conditions through other channels and processes. 

            Indicating that the Arizona Daily Star dismissal was very fact specific, just last month the NLRB issued an unfair labor practices complaint against Hispanics United of Buffalo, alleging that the non-profit illegally fired five employees for criticizing working conditions on Facebook.  This complaint addresses multiple firings which resulted from what can only be described as a virtual water cooler discussion among co-workers, albeit this time in a quasi-public forum within view of an unknown number of non-employees.   In sum, one employee posted to her Facebook wall that one of her co-workers had alleged to her that certain other co-workers were not doing enough to help their employer’s clients.  Her post led to some of her co-workers commenting on her post in their own defense.  Shortly thereafter, the participating Facebook users were fired.  The NLRB argues that the employer, Hispanics United of Buffalo, violated federal law by not allowing employees to engage in “concerted activities,” specifically discussing their jobs and working conditions with one another on Facebook.[6]  In its defense, the employer responded that the employees’ were, instead, discharged for harassing the co-worker who made the initial allegation.  These arguments will be heard by an Administrative Law Judge on June 22nd, unless of course, a settlement is reached.  

Though the outcome of this latest case is yet unknown, and the impact of the two prior cases somewhat unclear, it is very apparent that the NLRB intends to address social media communications as part of the NLRA, and to treat them similarly to old-fashioned water cooler conversations, regardless of when or where they occur.[7]  As such, it is important for companies to avoid implementing overly broad or generic social media policies, and narrowly tailor such polices in light of the National Labor Relations Act as well as to the companies goals and peculiarities.

Ryan C. Daugherty, Esq.

 
 
 
 
 
 
 
 
 
 
 
 
 
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation and Planning & Zoning groups. She focuses on employment, real estate and other commercial litigation, as well as other estate administration and family law matters. She joined the firm in 2008 after graduating from the University of Kentucky College of Law and the University of Georgia College of Environmental Design. In addition to her law practice, she is a LEED Accredited Professional, and a member of the Board of Directors of the U.S. Green Building Council’s Kentucky Chapter, serving as its Legislative Task Force Chair. She is also a LFUCG Greenspace Commissioner and volunteers on various civic organizations such as Bluegrass Tomorrow, Race for Education and Girls on the Run. She recently was selected as one of the Lexington Young Professionals Association’s 2010 Rising Stars, and as one of five Emerging Leaders chosen to attend the 2010 Louisville and Lexington Chamber’s joint Leadership Expedition. Ms. Daugherty can be reached at rdaugherty@mmlk.com or at (859) 231-8780, ext. 197.
 

[1] See Pew Research Center, Kathryn Zickuhr, Generations Online 2010, December 16, 2010, available at http://pewinternet.org/Reports/2010/Generations-2010.aspx; See also, Pew Research Center, Computer and Cell Phone Usage Up Around the World:  Global Publics Embrace Social Networking, December 15, 2010, available at http://pewglobal.org/2010/12/15/global-publics-embrace-social-networking.

[2] Though the NLRB only maintains jurisdiction over employers whose business affects and/or otherwise touches interstate commerce, for practical purposes, this threshold is frequently satisfied.

[3] 29 U.S.C. §153 (creating the NLRB); 29 U.S.C. §151 (“It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”).

[4] 29 U.S.C. §157 (“Employees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .”).

[5] It is noteworthy that the NLRB also claimed that she was illegally denied union representation and that her posts may have been responsive to that denial.

[6] It is significant that this case again focuses on Facebook wall posts rather than more private inbox or chat discussions, as it did in Souza’s case.

[7] It has also been reported that the NLRB has investigated 20-plus Facebook-related complaints this year, but the precise nature of these complaints and their resolution is unknown because they settled privately.

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A Shift in Focus: How Recent Amendments to 29 CFR § 825.303 Could Impact Employee Notice Requirements Under the FMLA Leave Provisions

Introduction -

A little more than two years has passed since the United States Department of Labor (“DOL”) promulgated significant changes to the Family Medical Leave Act (“FMLA”). The revisions, which went into effect on January 16, 2009, touched on a number of FMLA provisions, including the employee notice requirements in 29 C.F.R. § 825.303 et. seq.

Though the impact of these revisions remains somewhat unsettled due to the minimal number of decisions in cases citing to the new regulations, several recent court decisions have discussed and interpreted the revised language and in doing so have provided guidance as to the potential effect of the new language. As set forth below, in light of these courts’ interpretations of the revisions, employers would be wise to reexamine their employee notice policies.

The Revised Language -

Among other things, the DOL revised the language of the statute as it pertains to unforeseeable leave; i.e., cases in which an employee does not provide the 30 day notice of their need for FMLA leave as required by 29 C.F.R.§ 825.302 due to an emergency or other unforeseen circumstances.

Prior to the DOL revisions in 2009, 29 C.F.R. § 825.303(a) stated that: “When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not foreseeable.” (emphasis added).

The revised 29 C.F.R. § 825.303(a) now states: “When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” (emphasis added).

Though on its face this change in wording might not appear to be significant, as set forth below, the way in which courts are interpreting the revised language indicates that the new provisions may end up having a significant impact on how employers should handle their employee notice policies going forward.

Recent Judicial Interpretation –  As noted, the revisions are relatively new and, as such, very few courts have had the opportunity to review and interpret the changes. Accordingly, employers have been left to wonder what impact the revisions will have on their operations.

Although not expressly dealing with the current version of 29 C.F.R. § 825.303(a), a few recent appellate-level rulings have discussed the revised regulations and have offered their interpretation of what the impact might be. 

 Saenz v. Harlingen Medical Center, L.P., 613 F.3d 576 (5th Cir. 2010)

 In Saenz, the employer had a written policy requiring employees to provide a third party FMLA administrator with notice of intent to use FMLA leave within two (2) days after their last absence. An employee who requested intermittent leave was terminated and denied her FMLA rights because, though her mother contacted the employer directly within two days, she did not contact the third party administrator until five days after the leave. In applying the old regulation, the Fifth Circuit Court of Appeals found that the employee’s notice was sufficient even though it did not entirely conform to the employer’s written policy requiring notice within a two day period.

Importantly, the court indicated that the outcome may have been just the opposite had the new regulation been applied. The court stated that “the revisions to 29 C.F.R. § 825.303 – arguably increases the duties imposed upon employees seeking FMLA leave.”  Thus, because the employee failed to provide notification to her employer “within the time prescribed by the employer’s usual and customary notice requirement,” the court instructed that under the new regulation the employer likely would have been entitled to a summary judgment.       

 Brown v. Automotive Components Holdings, LLC, 622 F.3d 685 (7th Cir. 2010)

In Brown, the Seventh Circuit Court of Appeals undertook a comparison of the two versions of the regulation. There, an employee failed to contact the employer until nine days after she learned of her need for extended leave. Applying the old rule, the Seventh Circuit found that the employee was expected to provide notice within two working days of learning of the need for the leave, and, consequently, the employer was entitled to summary judgment.

As in Saenz, however, the court found that application of the revised regulation would have necessitated a different analysis. To wit, the court indicated that in its view, the revised language effectively diminishes the effect of the rigid two-day standard and instead focuses on the requirements of the employer’s own policy. Although this would have had no effect on the outcome in Brown, the court’s emphasis on the employer’s policy is clear.   

Scobey v. Nucor Steel-Arkansas, 580 F,3d 781 (8th Cir. 2009).

It is worth mentioning that the revisions to 29 C.F.R. § 825.303 may also impact the type of notice that is required. In Scobey, the Eighth Circuit Court of Appeals noted that under the former version of 29 C.F.R. § 835.305, an employee’s notice “need not explicitly assert rights under FMLA or even mention the FMLA.”  Thus, the old rule’s standard for notice was more generous to the employee. 

However, the Eighth Circuit went on to indicate that the recent amendments to 29 C.F.R. § 825.303(b) effectuate a more stringent notice standard:

“[T]he employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act. The employer will be expected to obtain any additional required information through informal means. An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially FMLA-qualifying.” Scobey at 785.

Conclusion

Although we have seen few, if any, post-revision judicial opinions applying the current version of 29 C.F.R. § 825.303, the above cases offer a glimpse into how courts may approach the issue in future litigation. As the opinions in Saenz, Brown and Scobey indicate, under the revised version of 29 C.F.R.§ 825.303, where leave is not foreseeable, an employee must provide prompt, adequate notice and must strictly comply with their employer’s usual procedures for requesting unforeseeable leave.

Consequently, employers would be well served to implement or revise their employee leave policies to include specific employee notice requirements.

W. Chapman Hopkins, Esq.

 

 

W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in employment law, equine law and litigation. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice. Special thanks to Emily Grant, Law Clerk, and Andrew Trimble, Law Clerk, for contributions to this article.

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