I recently had an interesting call with a DOL investigator, and I wanted to share it with you.
First, let me set the background. I represent a large national employer with multi-state locations, including several on the east coast. One of these east coast locations employed Johnny [name changed to protect the guilty], a serial FMLA abuser. Johnny never passed up an opportunity to use a Monday or Friday for FMLA leave.
This FMLA whiz kid also knew precisely when he needed to call in before his shift to avoid penalty — his employer’s policy required him to report any absence due to illness at least two hours before his shift. Johnny regularly followed this policy to report his intermittent conditions involving anxiety and depression.
But even the best FMLA abusers slip up. And Johnny did.
Every once in awhile, for any reason or no reason at all, Johnny failed to call off two hours before his shift started. Sometimes, he would use the letters F-M-L-A to explain his absence; on other occasions, he would cobble together some vague explanation for his health condition.
But here’s the problem – he failed to follow the employer’s call-in policy. In these situations, my client would rely heavily on the changes made to the 2009 FMLA regulations, which now require employees to follow the call-in policy or suffer the consequences:
(c) Complying with employer policy. When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances . . . If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.
Because Johnny offered no unusual circumstance for his failure to call in his absence two hours before his shift started, the employer counted these as unexcused absences. Makes perfect sense to me. Moreover, when Johnny was issued discipline for these unexcused absences, he again offered no unusual circumstance as to why he failed to call in two hours before his shift.
Here’s Where the DOL Comes In
Rather than explaining to the employer why he failed to follow the call-in policy, he ran to the DOL and complained instead. And then the DOL called me.
Even though Johnny failed to comply with the employer’s call-in policy, the DOL took the position that his absences were nevertheless FMLA protected simply because he invoked the FMLA when he finally did make contact with the Company.
Why is this so? The DOL investigator explained that the DOL reads into the cited regulation above a requirement that the employer must affirmatively ask the employee why he could not follow the employer’s call-in procedures. Yet, this so-called obligation can be found nowhere in the FMLA regulations. To the contrary, in its changes to the 2009 regulations, the DOL wholly endorsed the employer’s ability to manage its workforce through call-in procedures where unforeseeable leave is at issue, commenting that call-in procedures “are a routine part of many workplaces and are critical to an employer’s ability to manage its work force . . . [and] adherence to such policies is even more critical when the need for [FMLA] leave is unforeseen. “ 73 Fed. Reg. 68009 (Nov. 17, 2008).
As the DOL itself pointed out in the above preamble to its regulatory changes, an employer must be allowed to enforce usual and customary call-in procedures (absent an extremely rare circumstance) so that it can properly run its operations.
Insights for Employers
The DOL ultimately decided to stand down on the issue. But in this age of the helicopter parent, an era when everyone gets a participation trophy, I guess I shouldn’t be surprised that the DOL takes the position that the employer has a duty to find out why little Johnny couldn’t follow a long-established call-in policy every time he calls in late. Instead of requiring personal responsibility on the employee’s part, the DOL has opted to heap another regulatory burden on the employer.
Perhaps this simply is a new reality for employers. If that’s the case, what are the best practices moving forward? Several critical compliance pointers come to mind:
- Where an employee seeks leave that may be covered by the FMLA but has failed to follow call-in procedures, the employer should engage the employee in a discussion about the reason why he or she could not follow these procedures.
- In my situation, the DOL investigator took the position that we should have included in our FMLA policy a provision warning employees that they would be required to provide a reason why they failed to follow the call-in policy. As a result of this apparently new (paternalistic) DOL requirement, employers should consider adding language to their FMLA policies warning employees (who fail to follow the call-in policy) that they are expected to provide an unusual circumstance as to why they could not follow the call-in policy.
- Establish and Enforce call-in procedures! Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be. This is an excellent tool to combat FMLA misuse. If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at best opportunity possible.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
