This post was contributed by Gina E. McAndrew, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.
Recently, the United States Court of Appeals for the Third Circuit issued an opinion analyzing the so-called "mailbox rule" in a case which centered on the receipt of an FMLA notice. In Lupyan v. Corinthian Colleges, Inc., Lupyan, the employee, submitted a request for leave from her position as an instructor with Corinthian Colleges, Inc. ("CCI"). Based on a suggestion by her supervisor to apply for short-term disability, she obtained a Certification of Health Provider form from her doctor. Pursuant to this form, CCI determined that she was eligible for FMLA leave. Lupyan met with CCI’s Supervisor of Administration, who instructed her to indicate FMLA on her Request for Leave form, and changed her projected return-to-work date to a date in excess of twelve weeks based on the Certification form. Lupyan claimed she was never told of her rights under FMLA during the meeting; however, CCI claimed that it sent correspondence to Lupyan that same afternoon indicating that her leave was designated as FMLA leave and explaining her rights. Lupyan denied receiving the letter, and further denied any knowledge of actually being placed on FMLA.
More than twelve weeks after her leave began, Lupyan received a full release to return to work from her doctor. Lupyan was terminated shortly thereafter, in part because she did not return from her FMLA leave within the twelve weeks allotted for such leave. Lupyan claimed this was the first time she became aware she was placed on FMLA. She filed suit, alleging CCI interfered with her FMLA rights by failing to provide notice that she was on FMLA leave (and thus was unaware of the requirement to return to work within twelve weeks), and further alleging she was terminated in retaliation for taking such leave. The District Court for the Western District of Pennsylvania granted CCI’s motion for summary judgment and Lupyan appealed.
Under the FMLA, employers are required to provide both general and individual notice to its employees. In terms of individual notice, the employer must give an individual employee written notice that the employee’s absence falls under the FMLA and is governed by it. Once the employer is on notice of FMLA-qualifying leave it must take specific action, including notifying the employee of FMLA eligibility within five business days and notifying the employee in writing whether leave is designated as FMLA leave, the obligations and consequences for not meeting those obligations under the FMLA, and the amount of leave which will count against FMLA entitlement. Failure to provide this notice may constitute an interference claim; prejudice occurs when this failure renders the employee unable to exercise the right to leave in a meaningful way.
The legal presumption under the "mailbox rule" is that if a letter is proved to have been put into the mail (by way of the post office or by delivery to the mailman), it is presumed that "it reached its destination at the regular time" and was received by the addressee. The Court noted that certified mail provides a stronger presumption of receipt, since it "creates actual evidence of delivery." Regular mail is a weaker presumption, since no receipt or proof of delivery exists. The Court acknowledged that such receipt can be proven by introducing evidence of the practices relating to the mail, such as a sworn statement from someone with "personal knowledge of the procedures in place at the time of mailing." The presumption is not conclusive- once a party has proven mailing, the other party has the burden of producing evidence, which can be minimal, to rebut the presumption.
Here, the letter was sent by regular mail, with no return receipt or tracking requested by the employer. Further, while CCI provided sworn statements by two individuals with actual knowledge of mailing procedures, the affidavits were submitted almost four years after the purported date of mailing. The Court found this to be a weak presumption of receipt under the mailbox rule and not enough to establish actual receipt. Additionally, the Court found that Lupyan’s statement alone denying she received the letter was enough to create a genuine issue of material fact, reversing the lower court’s order granting summary judgment and remanding the proceedings.
The Court summed up the key takeaway here, noting 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 verifiable receipt when mailing something as important as a legally mandated notice." In other words, when sending an FMLA notice to an employee, use certified mail!