Reports of my capture by a Sri Lankan sloth bear in the dry forests of Sri Lanka are greatly exaggerated.

I am alive and well.

Sorry for the long delay since my last post. You see, spring is my busy season — when I am not practicing law, I spend seemingly every waking minute coaching my sons’ little league and travel baseball teams.

In little league baseball, there are oodles of lighthearted moments. But there is crying, too. Lots of it. For the time being, I have resisted the urge to channel my inner Tom Hanks and shout, “There’s no crying in baseball!” [which, btw, is one of the best movie lines of all time].

On the other hand, is crying allowed at work?  When an employee cries at work — I mean, a really good, little league kind of cry — is this sufficient to alert the employer of the need for FMLA leave?

Let me share the story of Noemi, who answers our question.

Facts

Noemi was a secretary for a school district who claimed her coworkers made derogatory remarks about Hispanic students and their families. The last straw, according to Noemi, was when an associate principal allegedly told Noemi that “those people” (referring to a Hispanic family) never pay their bills. As a result, Noemi became extremely distraught and began crying regularly and uncontrollably at work.

Around this time, Noemi also told: 1) her supervisor that she was “overwhelmed, afraid, and unsure if she could continue working” and 2) a school counselor and a Latino outreach family coordinator, while crying uncontrollably, that she did not know whether she could continue working for the district. In response, the school principal insisted that Noemi either continue working or resign.

Days later, Noemi met with the principal in tears and explained that she was confused and overwhelmed, had not slept or eaten in weeks, and was losing weight.

The Principal’s alleged response?  She told Noemi that she had to decide whether to resign. Thereafter, Noemi agreed to resign “due to medical reasons.” Just a few days later, Noemi asked to rescind her resignation.  However, her replacement had already been chosen, so there was no open position for her.

The Court’s Ruling

In addition to claiming a hostile work environment, Noemi alleged that the school violated the FMLA when it failed to provide her notice that she had the right to take FMLA leave.  Of course, the school district disagreed, arguing that the employee’s crying spells could not have been enough to put the district on notice that she needed FMLA leave.

Noting that that the FMLA notice requirement for employees is “not demanding,” the court found that the employee herself may not even be aware she is suffering from a serious health condition.  In these cases:

. . . clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition. In those cases, observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may themselves provide an employer with adequate notice of a serious medical condition and obviate the need for an express request for medical leave.

Here, the court determined that Noemi’s crying fits and overall demeanor suggested, at least at the outset of the case, that the FMLA could be in play. Valdivia v. Sch. Dist. 214 (pdf)

Insights for Employers

Me thinks the employer lost the chance to dismiss the case not simply because of the crying.  Sure, the crying was important, but there was more involved here.  While Noemi cried on multiple occasions:

• She reported to her boss that she was overwhelmed, afraid, and unsure if she could continue working
• She told her boss she wasn’t sure she could work for the district
• She reported to her boss again that she was confused and overwhelmed, had not slept or eaten in weeks, and was losing weight
• She was resigning “due to medical reasons”

The “notice” here is not just the crying.  It’s the crying plus these other comments which suggest she needs help. If all she did was cry, as strange as that might have been, it would have been difficult for Noemi to establish that she put the employer on notice of the need for FMLA leave. However, she didn’t stop there. She also made clear that she was “confused and overwhelmed, had not slept or eaten in weeks, and was losing weight.” Finally, at the point of resignation, she even told the employer that she was resigning for medical reasons.  Yikes.

Because the FMLA regulations make clear that an employee need not specifically cite the Family and Medical Leave Act in order to benefit from the Act’s protections, courts like this one often will find that the employee’s behavior itself is enough to put the employer on notice of the need for FMLA leave.

How should an employer respond in this situation? Where there are “clear abnormalities” in the employee’s behavior (particularly when the employee tells you they are resigning for medical reasons), it is critical that the employer explore whether it can provide further assistance to the employee before hitting the termination button.

Instead of forcing the employee to choose between employment and resignation, an employer is best served simply asking, “How can I help you? These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need.

If they refuse this assistance after notice and fair warning, then and only then do we look for the termination button.