Publications: Bizarre Behavior May Give Employer “Constructive Notice” Under FMLA

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A stray dog in the office, and the bizarre and unprecedented response of a scared employee who screamed obscenities at supervisors and called police because her desk was moved, all add up to one of this year’s more interesting Family and Medical Leave Act decisions, Stevenson v. Hyre Elec. Co.¹ When an employee’s behavior is so odd that it prompts her employer to consider discipline and change office locks, as the employer in Stevenson did, more than workplace security may need to be considered. It may be time to think about the FMLA.

The Seventh Circuit’s Stevenson decision holds that odd, disruptive and insubordinate employee behavior may trigger an employer’s obligation to notify its employee of her entitlement to FMLA leave for a serious health condition. Reversing a summary judgment for the employer, the Stevenson court found that an employee’s sudden, bizarre conduct may have been enough to put her employer on “constructive notice” that she had a serious health condition entitling her to federally protected FMLA leave.

Enacted in 1993, the FMLA requires covered employers (those who employ 50 or more) to provide eligible employees with up to twelve weeks of unpaid leave annually for a serious health condition affecting the employee or a close family member. Eligible employees are those who have been employed for at least twelve months, worked at least 1,250 hours during the preceding twelve months, and have given their employer notice of a need for FMLA leave. Typically, employees give express notice of an FMLA leave election, but such explicit notice is not necessary if the employer has constructive notice (i.e. reason to believe leave may be warranted). Under the FMLA, employers with constructive notice of an employee’s potential need for leave have an affirmative duty to notify their employee of the right to FMLA leave even if the employee is unaware that he or she suffers from a specific qualifying serious health condition or that he or she is entitled to leave.

This was the constructive notice situation in Stevenson, where the Seventh Circuit found that the district court misapplied its holding in Byrne v. Avon Products.² In Byrne, the court held that either an employee’s inability to communicate his/her illness or clear behavior abnormalities may give an employer constructive notice of a serious health condition triggering an FMLA leave entitlement. According to the Stevenson court, the district court incorrectly cumulated these two alternate means of constructive notice, and erroneously required the employee in Stevenson to show both that she was unable to communicate her serious health condition and that she exhibited clear conduct abnormalities due to a qualifying serious health condition. The Stevenson court clarified that an employee need not show both factors—either will suffice. So either an employee’s inability to communicate her illness or her clear behavioral abnormalities may be enough to put an employer on constructive notice of a serious health condition entitling her to FMLA leave.

The Stevenson court held that a fact-finder could have considered the employee’s behavior so bizarre that it gave her employer constructive notice that she was entitled to elect protected FMLA leave. Before the stray dog incident she was a “model employee” with an unblemished disciplinary record, but after it she screamed and cursed at her supervisors in a marked and disturbing departure from her prior exemplary work record. After a few days off intended to help her regain her composure, she returned to work to find her desk moved (away from the window the stray dog used to enter the office), but instead of recognizing the measure as having been intended to restore her sense of security in the workplace, she called the police and alleged harassment.

Employers should be aware that otherwise unacceptable workplace behavior, like that of the employee in Stevenson, may actually constitute constructive notice of a need for protected FMLA leave. Terminating an employee for what looks much like grossly insubordinate misconduct, may actually violate the FMLA’s requirement that covered employers respond affirmatively to constructive notice of a condition entitling their employee to protected leave. Stevenson teaches that employees can give such constructive notice by sudden, negative behavior changes alone. Employers cannot wait for, or insist upon, express employee requests for FMLA leave as such. Constructive notice through what might otherwise look simply like bad employee behavior may well be enough. When in doubt, employers should consult skilled labor counsel as they seek to make the sometimes difficult distinction between simple terminable misconduct and bizarre behavior constituting constructive notice of a serious health condition, and FMLA leave entitlement.
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¹ ___ F. 3d ___, 2007 WL 2990937 (7th Cir. Oct. 16, 2007). 
² 328 F. 3d 379 (7th Cir. 2003).