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Eighth Circuit Again Deconstructs FMLA Constructive Notice

This year marks a decade for employers in the Seventh Circuit dealing with the difficult concept of “constructive notice” for an employee’s Family and Medical Leave Act leave. But the Eighth Circuit recently again questioned whether that rule is still legitimate.

First, a reminder. The Family and Medical Leave Act allows for an employee to take up to 12 weeks of unpaid leave from work for certain circumstances. Those include the employee’s own or a close family member’s serious health condition. An employee bears the burden of notifying its employer of the need for leave. Where the need for leave is unforeseeable, the employee must do so “as soon as practicable.”

Under a prior version of the relevant FMLA regulation, this notice requirement was explained as “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 feasible.” The Seventh Circuit took this language and ran with it to create the constructive notice doctrine in Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003). The Seventh Circuit has jurisdiction over federal courts in Illinois, Indiana, and Wisconsin.

The case had some unique facts. A model employee in Byrne suddenly began exhibiting very unusual behavior. The employee, after years of “highly regarded service,” repeatedly slept or read during his shift. Eventually the employee was diagnosed with depression and received treatment over a two-month period. Based on these facts, the Seventh Circuit determined that an employee’s sudden drastic change in behavior might be enough to put the employer on notice of the need for FMLA leave. The court also observed that the employee’s mental condition may have prevented him from giving proper notice. That is, it was not feasible to give notice. In circumstances such as this, the Seventh Circuit concluded an employee may meet the notice requirements and be entitled to protected FMLA leave.

However, the language in the regulation changed in 2008. The language now explains, “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.” Faced with an argument to apply constructive notice in 2009, the Eighth Circuit noted the change in regulation language and rejected the doctrine in Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. 2009). The Eighth Circuit has jurisdiction over federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Just last month the Eighth Circuit reiterated in Bosley v. Cargill Meat Solutions Corp., 12-1290 (8th Cir. Feb. 5, 2013) that it does not believe constructive notice can apply any longer. Similar to Byrne, the employee at issue in Bosley suffered from depression. She did not follow the employer’s call-in policy prior to missing work for one month. Following Scobey, the Eighth Circuit rejected the possible application of constructive notice to Bosley. The court explained that the regulation deleted the language and no longer considers “extraordinary circumstances where such notice is not feasible.” Therefore, there was not a basis for the constructive notice rule to apply as there was before.

The verdict: it’s a split! The Seventh Circuit has not revisited its constructive notice holding in Byrne since the change in regulation noted by the Eighth Circuit. Courts in the Seventh Circuit continue to cite and apply Byrne as the law. However, the Eighth Circuit presents some concerns over whether there is still a basis for constructive notice to apply. The Seventh Circuit may continue to make room for constructive notice in extraordinary circumstances by the use of “generally” in the regulation. That word choice may leave room for situations such as those presented in Byrne. For the time being, employers in Illinois, Indiana, and Wisconsin need to note changes in employee behavior for the possible application of constructive notice and hope that the Seventh Circuit eventually finds the Eighth Circuit persuasive.