Yarelyn Mena and Edgar M. Rivera, Esq.
Technology has changed how we communicate with one another: writing emails has replaced writing letters, and sending text messages, in large part, has replaced making calls. However, employees must be aware that their employers’ communication policies may not reflect these sociological changes, and failing to follow the letter of such policies can lead to warnings, termination, or, in some cases, complicate an employee’s sustainable discrimination claim. Delbert Hudson, a former employee of Tyson Fresh Meats Inc. (Tyson), learned this lesson the hard way.
Tyson’s attendance policy requires employees to “call their direct supervisor personally to report an unplanned absence or to report that they will be late.” On December 28, 2011, Hudson sent his supervisor, Hamdija Beganovic, a text message before the start of his shift, stating that he would not be at work that day and the following several days because he needed to see his doctor. Hudson was absent from work from December 28 until December 31, and received a doctor’s note on January 2 excusing him for the missed days in December and informing his employer that he would be absent from January 1 until January 7. On January 3, Hudson submitted the doctor’s note to Tyson’s Health Services Department and filled out a Leave of Absence Application pursuant to the Family Medical Leave Act (FMLA).
When Hudson returned to work a few days later, he was told not to “perform his job tasks” until Tyson’s Human Resources Manager, Teri Wray, investigated his absences. Wray’s investigation concluded that on the initial day he was absent, when Hudson had texted his supervisor that he would be out that day, he had satisfied Tyson’s notification requirement; however, he only had done so because Hudson’s girlfriend, also a Tyson employee, personally notified his supervisor of his absence. As such, Hudson failed to satisfy Tyson’s notification requirement on December 29, 30 and 31 because he “had specific instructions to call-in prior to [sic] shift to his immediate supervisor if he was going to be late or miss work.” Tyson decided that Hudson’s initial text message did not count for the ensuing days. Although Hudson claimed that in the past Beganovic had accepted text notifications from him when he expected to be absent, Tyson approved Wray’s recommendation to terminate Mr. Hudson’s employment for failing to properly notify Tyson that he would be absent. Mr. Hudson sued Tyson, claiming that it discriminated against him for taking FMLA leave.
After the District Court for the Northern District of Iowa granted summary judgment in Tyson’s favor, the Eighth Circuit Court of Appeals remanded the case back to the trial court to determine, among things, whether Hudson adequately notified Tyson and actually was terminated based on his use of FMLA leave.
An employee must be well informed of its employer’s policies to avoid misunderstandings and potential termination. Often, middle managers tolerate certain policies that higher-level management does not and, ultimately, the risk of miscommunication lies on the employee. For example, the burden was on Mr. Hudson to prove that an alternative method of communication was acceptable, if not specifically provided for, in Tyson’s company policy. Undoubtedly, employees are better off and have a better chance of preserving their rights against discrimination or otherwise, if they have diligently followed company policy concerning the terms and conditions of their employment.
If you believe your employer violated your FMLA rights, please contact The Harman Firm, LLP.