There are a lot of decisions made in the heat of the moment that many likely come to regret. In Michigan today there’s a store manager likely regretting some of what she said in the heat of a moment, and I’m hoping the employee berated by said manager is also regretting it.
The headline is pretty straightforward: Manager fired over heartless text messages to worker with child on life support. And it’s a classic case of not all relevant facts being available. Now this case I realize is from July 2018, but the details of the case aren’t moot with regard to discussion. There are still lessons that can be learned, both on the manager and employee side.
Here’s the long and short of the situation. Crystal Fisher had to rush her son to the hospital on Thursday June 28 with a 104°F (40°C) fever and low blood oxygen. Initially Crystal’s daughter called into her employer, “Can you have somebody cover mom for [Friday], my brother’s really sick, they’re going to have to ventilate him?” The manager replied that Crystal needed to be the one calling in.
After the son was transported to the University of Michigan and put on life support, Crystal texted her manager in an exchange that went viral after she posted it to Facebook. The parent corporation caught wind of the exchange, fired the manager, and told Crystal to take as much time off as she needed.
Now given only the facts made available, one could reasonably presume the manager was heartless, cruel, a bitch, etc. But I fear that would be reaching conclusions not completely warranted. Time to play devil’s advocate here.
“Until further notice” = Leave of absence
Any kind of “until further notice” request is a leave of absence. You don’t request that over text message. Not in a phone call either. You can give a “head’s up” to it by text, e-mail, or phone, but that is not a request unto itself and is not binding.
Virtually every employer subject to the Family and Medical Leave Act (and a lot of those that may not be) has a procedure for requesting leave, regardless of whether the leave is subject to Federal law. With paperwork detailing the estimated time of the leave and why it’s being taken. Even if the leave isn’t protected by law, meaning the employer isn’t required by law to hold your job, this should protect you from any claims to the contrary and a “no-call, no-show” termination.
These policies also involve human resources (HR), meaning your direct manager or the store manager (in the case of retail and food service) is not the only person with whom you will be speaking. The HR manager will know the company’s specific procedures and what the law requires with your specific circumstance.
So Crystal certainly did not do everything right in this circumstance. Understandable given the specifics of the case. Let’s outline a few guidelines that I’ve at least followed in the time I’ve been working – last 20 years minus a few years for college.
Guidelines for calling off work
If you’re going to be out for one or two shifts or days, then you can call in, providing a reasonable idea of what’s going on, and giving them a reasonable estimate on when you’re going to be back. For example, contracting influenza (“the flu”) and expecting to be out for two or three days since that always happens when you catch it. And keeping your manager (and team) in the loop if it appears you’ll need more time out.
Caught food poisoning where you ate the night before? Call or write in – or have a family member do it if you’re too busy… reminding yourself of what you ate. And again, keep your employer in the loop on when you expect to be back to work. The last time I had a bout of food poisoning, I spent the next several days after I was done… recalling what caused it trying to regain my strength. It took well over 6 months to be able to eat at IHOP again, and my wife and I still don’t eat there with the same regularity as prior to that incident.
You’ve just been told your son or daughter is on life support? You get the attending physician to put that in writing so you can send a family member or friend to your place of employment with the details. And you show up as well once things have stabilized to get everything in writing.
The fact this all occurred the day before her scheduled shift means she had adequate opportunity to do just that. She had options beyond a text message exchange. But it sounds like she wasn’t all that versed on employment law, so couldn’t directly assert her rights. And she let her emotions get ahead of her reasoning skills.
With that out of the way, let’s turn to the manager.
The manager’s response
It was perfectly reasonable for the manager to demand Crystal call in, especially since this wasn’t the day of her shift. You cannot resolve scheduling concerns via text message. But that’s about the only thing about the exchange that is reasonable.
When an employee contacts a manager about a family medical event, the manager is largely not allowed to question that without… some demonstrable reason (“probable cause”) to believe the person may not be telling the truth. Federal law largely doesn’t allow for that. And they most certainly are not allowed to become combative with the employee, regardless of whether the employee escalated it.
That said, I’m willing to grant the manager some benefit of doubt here with why she became combative.
In that I wonder about Crystal’s history with the store and/or the manager in question. Was this a kind of “last straw” situation? There are numerous reasons the manager responded the way she did, so I’m willing to grant the benefit of doubt. And it’s possible she was just being a bitch without any rhyme or reason, but I’m hesitant to believe such since I don’t know either person.
In short, there are plenty of unknowns here.
But what is clear is the manager may have broken Federal law by becoming combative, hence her termination. The text message should have, at minimum, been interpreted as advanced notice of an intent to take protected leave. Legally speaking, then, the only reasonable response is pointing out the company’s policy regarding leave and stating she needs to follow that policy. But the manager’s response was likely heat of the moment, making me wonder about Crystal’s history with the store and/or this manager in particular, or what the manager had endured at around the time of the text exchange. It appears the manager also easily let her emotions get ahead of her reasoning skills.
Don’t appeal to the court of public opinion
Crystal’s appeal through Facebook, though, was beyond improper.
She may not have initially thought the exchange would go viral, but it was predictable, almost inevitable because she didn’t have any privacy controls enabled on the post. This shows Crystal was willing to shame her employer rather than follow proper protocols. A decision made in the heat of the moment, for sure, but a grave mistake nonetheless.
Crystal largely should consider herself lucky she was not fired as well. But this whole ordeal doesn’t shine well on her either. The viral attention and publicity the situation garnered is likely the only reason she wasn’t terminated. Doing anything that shines a negative light on your employer is grounds for termination. And this… certainly qualifies.
Given how this has played out, Crystal is better off walking away from the store when all is said and done. Her Facebook profile isn’t showing any employer information, so there is no way to know if she’s still employed by that store.
Again I have a feeling there is more to this than we’re being told, in particular with how the manager responded when Crystal texted in. But that’s almost always the case in situations like this.
* * * * *
So now that we’ve gotten that out of the way, how should the situation have been handled? Again this presumes there isn’t any kind of negative history between employer and employee – repeatedly calling in last minute, misuse of paid time off or sick time, etc.
Again, the text message is only a “head’s up”, not a request for leave in and of itself. You can’t just say “I won’t be available to work until further notice,” or something similar, and leave it at that. No employer will accept that. You need to specifically say you will be requesting leave and follow the company’s processes regarding leave. In Crystal’s case, it should’ve been something like this: “My son has just been admitted to UMich and is on life support. I will be in as soon as possible to discuss a leave of absence.”
Virtually every employer has some kind of leave policy and a procedure for requesting leave. And that leave policy is typically worded to allow for unexpected, exigent circumstances. But the point of calling it a “leave of absence” or just “leave” is also to specifically invoke the Family and Medical Leave Act of 1993 (FMLA) [29 USC § 2601] and the protections it affords, provided you’re eligible. I’ve said before that you need to use the statutory language when invoking statutory rights so there is no misinterpretation of what you’re doing. And there’s a big difference between saying you are requesting leave versus saying you “won’t be able to make it to work until further notice”. The latter leaves a lot of room for interpretation.
But then there’s the matter of posting the conversation to Facebook. That alone is enough to warrant termination.
In short, if you have a beef with your employer, do not post that to social media. Most anything negative you say about your employer publicly will warrant termination, and Federal and State-level employment laws won’t protect you. And publicly posting a conversation you had with your manager will also warrant termination, since that is considered a breach of confidentiality and fiduciary duties.
A person who puts in for FMLA leave can still be terminated before, during, or after the leave. Timing might provide the illusion of retaliation. If the employer can demonstrate the circumstances around the termination minus the leave or leave request would still result in termination, the employer is in the clear. So has ruled United States District and Circuit Courts several times over. FMLA will not delay or prevent termination.
And Crystal’s actions would, absent the need for family medical leave, lead to her termination. Again, post anything negative about your employer online, or publicly reveal a conversation you had with your manager, and that is grounds for termination.
Any details about your specific employer’s leave policy or your rights under the Family and Medical Leave Act (FLMA) are best addressed by your employer’s HR department.