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In Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000), a case this firm successfully handled on behalf of the employer, the court upheld the termination of an employee on FMLA leave who failed to comply with a notice of absence requirement contained in an applicable collective bargaining agreement. The employee in question, Gilliam, had requested leave to visit his fiancée and newborn child on a Friday. His employer, United Parcel Service (“UPS”), granted his request and then did not hear from him again until the following Thursday. In the meantime, UPS terminated Gilliam for violating the collective bargaining provision requiring employees to notify the company of their absence by the beginning of their third scheduled shift. The court held that, even assuming Gilliam had been granted FMLA leave on the Friday he first took off work, UPS did not violate the FMLA in discharging him because the nature of his leave did not excuse his failure to abide by the terms of the collective bargaining agreement.
Likewise, in Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002), the court held lawful the employer’s decision to discharge an employee for failure to comply with its attendance policy. In that case, the employee had suffered an asthma attack at work and had given the employer an off-work slip from his doctor dated January 18, 1997 that did not indicate when he could return to work. Thereafter, the employee missed three scheduled days of work without calling in. Notwithstanding the fact that the employer designated the employee’s time off as FMLA leave, it nevertheless discharged him pursuant to its Attendance Policy rule providing for termination of employment if an employee fails to call in for three consecutive scheduled work days. In holding that the employer did not violate the FMLA in taking its adverse employment action, the court relied upon Gilliam for the proposition that the FMLA does not “authorize employees on leave to keep their employers in the dark about when they will return.”
Following the precedent established by Gilliam and Lewis, the United States District Court for the Southern District of Indiana more recently determined that an employer did not unlawfully retaliate against an employee for exercising his FMLA rights by terminating him for disregarding its “no call, no show” policy. See Hammond v. Interstate Brands Corp., 2002 U.S. Dist. Lexis 17575. Under that policy, taking three consecutive days off work without calling-in was a dischargeable offense. Hammond missed several days of work due to severe headaches. At his request, Hammond’s girlfriend notified his employer that he would return to work on January 12, 1999. However, he did not return to work on that date and failed to call the employer to explain his absence. Consequently he was fired for violating the “no call, no show” rule. The court decided that the employer’s act of firing Hammond four days after he took potentially FMLA-protected leave established a prima facie case of retaliation but concluded that violation of the employer’s attendance policy constituted a legitimate, nondiscriminatory reason for the discharge that rebutted the prima facie case.
These cases highlight the benefit to employers of establishing solid work rules governing notice of absence and applying those rules consistently to all employees. As the Seventh Circuit has observed, employers have a legitimate business interest in receiving timely and current notification of employee absences so they can keep their organizations “operating smoothly by bringing in substitutes or temporary help.” See Gilliam, 233 F.3d at 971. Accordingly, the FMLA does not go so far as to require employers to provide a special dispensation to employees allowing them to disregard usual and customary call-in and notification procedures while on federally protected leave.
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