United States: Special In Person Handshakes Are Now The Only Way To Verify Receipt Of A Communication?

Last Updated: June 24 2015
Article by Kevin A. Fritz

Under the Family Medical Leave Act ("FMLA"), the process for providing an employee with leave arguably generates enough paper to defoliate a small forest. Among the mound of paper, is the important notice letter, which designates an employee's absence as leave under the FMLA.

Now, our lawyer fan base can appreciate the timeless law school principle of the mailbox rule. Tested on many a first year law school final exam, the mailbox rule stands for the notion that if a letter, properly directed, is proved to have been given to the post-office or delivered to the postman, it is presumed that it reached its destination at the regular time, and is received by the person to whom it was addressed.

Traditionally, the legal protection of the mailbox rule guaranteed that if a former employee denied ever receiving a letter that designated her absence as leave under FMLA, her previous employer would avoid liability. Two recent cases have shaken that notion and called into question a timeless notice principle.

US Mail

In Lupyan v. Corinthian Colleges Inc., 761 F.3d 314 (3d Cir. 2014), an employee's sworn statement that she did not receive her employer's mailed FMLA notification letter was sufficient to create a fact question precluding summary judgment.

Lisa Lupyan requested a "personal leave" in early December 2007 relating to her depression. Her supervisor suggested she apply for short-term disability instead, and Lupyan submitted a Certification of Health Care Provider. Her employer determined that Lupyan qualified for FMLA, and later that month mailed Lupyan a letter explaining her rights under the statute and advising that she was expected to return to work by April 1, 2008. Lupyan denied ever having received the letter. Five weeks after Lupyan was scheduled to return to work, the college terminated her employment. Lupyan claimed interference with her FMLA rights, arguing under that she would have "expedited her return" had she known her leave was subject to the requirements of the FMLA.

The Third Circuit reversed the district court's grant of summary judgment in favor of the college. In support of its summary judgment, the employer had submitted affidavits from other employees verifying that the notification letter was sent via standard mail. The Third Circuit recognized that this evidence entitled the employer to the benefit of the mailbox rule, BUT that "this 'is not a conclusive presumption of law.'" Because Lupyan claimed in an affidavit that she never received the notice, the Third Circuit concluded that she "sufficiently burst the mailbox rule's presumption, to require a jury to determine the credibility of her testimony, as well as that of [defendant]'s witnesses." Lupyan was essentially able to force her former employer to proceed to trial simply because she claimed to have never received her employer's notification that her leave was designated as FMLA leave. Talk about a shake to the Notice Tree!

Email

Then, just weeks ago, in Gardner v. Detroit Entm't, LLC, 2014 WL 5286734 (E.D. Mich. Oct. 15, 2014), a court determined that notice sent by email is not necessarily reliable either.

Summer Gardner worked for Motor City Casino and took FMLA leave due to a degenerative spinal disorder, which made it difficult for her to work on her feet several days in a row. As with most degenerative disorders, Gardner's intermittent leave duration and frequency was hard to anticipate. Indeed, in September 2011 alone, she took intermittent FMLA leave nine times, which was five more than anticipated by her physician, and she also had called off work every Sunday that month. The casino sought recertification of Gardner's condition due to the increased frequency and her Sunday absence pattern. It sent its FMLA notices to Gardner by email, instead of US mail as it had done in the past. Gardner claimed that she did not receive the emailed FMLA notices. When she failed to return the recertification, her absences were considered unexcused, and she later was terminated.

The court noted that the FMLA regulations only require that the employer provide the employee oral notice of the need to provide recertification. The court found this method to be the most desirable, since it guarantees person-to-person communication. As to FMLA notice sent by email, the court noted that:

"Defendant had the right to require Plaintiff to recertify her FMLA leave . . . Specifically, the issue is whether Defendant, by informing Plaintiff of the recertification requirement via email, gave Plaintiff proper notice of that requirement . . . The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice."

Only constructive notice?! The court refused to dismiss Gardner's FMLA claims, finding that the dispute over whether she actually received the FMLA notices by email precluded a dismissal of her FMLA claims. The court ultimately determined that only a jury could decide whether the casino violated the law.

Implications

Both Lupyan and Gardner stand as a blunt reminder to employers that they must be careful to comply strictly with the FMLA's notice requirements, and to preserve verifiable documentation of all communications with their employees on leave. Along with using a delivery method that creates evidence of receipt, employers should also want to follow up via email or telephone with an employee who is out on leave to ensure that they get the message.

Many companies have turned away from paper in an effort to Go Green and streamline FMLA process. Helping the environment and adopting technology are great business models, but at least these two courts placed an increased value in providing the FMLA notices and required certification to employees in person and having the employee sign a confirmation of receipt. Written confirmation (certified mail or express delivery requiring a signature) whenever possible may be most effective to combat an argument that notice was not received.

These decisions will surely have broader implications in FMLA litigation, which probably guarantees the loss of even more trees. Whether other courts follow these decisions remains to be seen. Certainly employers with operations in the Third Circuit or the State of Michigan should review their FMLA notice procedures to ensure compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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