Burger King case serves up warning to employers on FMLA notice
When does an employer have enough information to grant leave under the Family and Medical Leave Act (FMLA)? A federal court in Alabama recently shed some light on this issue, finding that an employer, a Burger King franchisee restaurant, unlawfully interfered with an employee’s rights under the FMLA by terminating the employee shortly after she provided enough information to put the employer on notice of her need for FMLA leave. 
In most cases, such as pregnancy or planned surgery, an employee must give at least 30 days’ notice of the need to take FMLA leave. If 30 days’ notice is not possible, or if the leave is not foreseeable, notice must be provided as soon as practicable. An employee is not required to specifically mention the FMLA in a request for leave, and the request may be verbal or written. The employee simply must provide enough information for the employer to know that the leave may be covered by the FMLA.
In the recent Alabama case, Burger King restaurant employee LaShondra Moore received a call from her mother’s doctor, advising her that Moore’s mother had contracted a serious infection that would require both hospitalization and surgery. Moore informed her store manager that Moore’s mother was in a life-or-death situation that required surgery. The manager told Moore to take all the time she needed but did not tell Moore that she may have rights under the FMLA.
Moore later learned from a family member that she should request leave under FMLA. Moore informed both her store manager and the district manager that she needed to file for FMLA leave, and Moore produced a note from her mother’s doctor substantiating the need for leave. Neither manager advised Moore that company policy required her to make a formal request for FMLA leave through the Human Resources Department.
Just over a week after first requesting leave to care for her mother, the Company terminated Moore’s employment for excessive absenteeism. Although Moore never contacted Human Resources regarding her request for leave, she was not aware that she needed to do so. The Company had not provided Moore with a copy of the employee handbook (which contained the FMLA policy), nor had the Company provided any training related to leaves of absence.
The court ultimately rejected defendant’s argument that Moore’s failure to notify Human Resources disqualified her from FMLA leave for two primary reasons. First, the court held that the FMLA does not permit employers to deny leave based on the employer’s FMLA-specific notice requirements that exceed notice requirements for other forms of employer leave. Second, the court noted that the defendant violated its own policy requiring managers to direct employees with potentially FMLA-qualifying leave to contact Human Resources.
The Alabama case provides a road map to employers regarding how not to handle FMLA requests, in addition to these other, important lessons:
- Give employees a physical copy and/or access to an electronic copy of employer policies that employees can read on their own time and reference whenever they need to do so.
- Train managers and employees regarding important company procedures, including employee rights under FMLA.
Employers should consult with experienced human resources professionals and/or labor and employment counsel about proper administration of FMLA leave. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
 Moore v. GPS Hospitality Partners, IV, LLC,United States District Court, S.D. Alabama, Southern Division, Civil Action No. 17-0500-WS-N.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.