Imagine a typical attendance policy: “employees must call their supervisor to report they will be late or absent.” But sometimes employees text rather than call without being disciplined for bending the rules. And so one day an employee sends his supervisor a text message saying he feels ill, is going to the doctor, and will be absent for several days. When the employee returns over a week later (after only sporadic contact with the company), he is fired for failing to report-in and failing to use the required method (calling, not texting).

Those were the basic facts of a recent Eighth Circuit case concerning an employee’s lawsuit against Tyson for violating the Family and Medical Leave Act (“FMLA”). The lower court granted summary judgment for Tyson, but the Eighth Circuit reversed. Despite Tyson’s clear-cut attendance policy, the Eighth Circuit found the employee’s evidence that he often texted with his supervisor and had previously notified his supervisor of an absence via text was sufficiently compelling to create a fact issue. The Court found that since Tyson’s attendance policy appeared to be more lax in practice than on paper, strictly enforcing the call-in requirement for this particular employee could be pretext for unlawful discrimination.

The fundamental lesson of this case is weak enforcement makes weak policies. If a particular policy is only loosely followed in practice, judges and juries may be skeptical if the employer later relies on that policy to explain a termination or other adverse employment action (even with an admitted violation, like this case). Managers need to know the rules and consistently enforce them if they want to rely on them.

If you have Employment or FMLA questions, please contact, Mike Birrer.