Employers should avoid sending notices required by the Family and Medical Leave Act (FMLA) to employees via regular mail. While using regular mail is not prohibited, a far better practice is to send FMLA notices to employees using a method that provides the employer with proof that the notice was sent and received.
In a recent case, Lupyan v. Corinthian Colleges, Inc., No. 13-1843, 2014 WL 3824309, at * 7 (3d Cir. Aug. 5, 2014), the United States Court of Appeals for the Third Circuit found that "[i]n this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes a verifiable receipt when mailing something as important as a legally mandated notice." In Lupyan, the plaintiff alleges that the employer interfered with her rights under the FMLA because she never received a notice that she was placed on FMLA leave. Specifically, after having been terminated for failing to return to work at the expiration of the applicable 12 weeks of FMLA leave, the plaintiff alleged that she would have returned had she been aware she was placed on FMLA leave. The employer claimed it sent the relevant FMLA notice to her via regular mail and presented evidence of the mailing (but not receipt).
The Third Circuit found that the negligible cost and inconvenience of sending legally mandated notices by a method that includes a verifiable receipt is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender's mailroom. In contrast, the court noted that proving a negative on the part of the recipient is "next to impossible." As a result, the plaintiff's denial of receipt of the notice was enough for the Third Circuit to conclude that there is a genuine issue of material fact as to whether the employer interfered with the plaintiff's rights under the FMLA.
The relevant regulations provide that an employer that fails to send a notice required by the FMLA may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation and for appropriate equitable or other relief including employment, reinstatement, promotion or other relief tailored to the harm suffered.
The bottom line: the belt and suspenders approach is for employers to provide FMLA notices to employees by utilizing a method that can be used to prove both mailing and receipt by the employee. One option is to send the notice via certified mail, return receipt requested utilizing the United States Post Office. A less expensive method is to have the letter tracked by a carrier utilizing a methodology that can prove mailing, delivery and receipt by the employee. Where possible, hand delivery with a signed acknowledgement of receipt is the best option by providing the notice to the employee in person and at the same time obtaining a signed statement that he or she received the notice. Employers should preserve the records demonstrating mailing and receipt. The additional time or cost will surely be less expensive than a jury trial where a critical issue for the jury is whether notice was actually delivered.
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