A recent case allowing an employee to take claims under the federal Family and Medical Leave Act (“FMLA”) to trial underscores the importance of not simply following rote notice procedures, but ensuring such communications are—in fact—effective.
In Gardner v. Detroit Entertainment, LLC, plaintiff Summer Gardner, a former casino employee, sued her employer for FMLA interference. Due to a degenerative spinal disorder, Gardner was unable to work after being on her feet for several days in a row and was approved for periods of intermittent leave. During the period in question, her medical provider anticipated that she would have four such episodes in a month. In September 2011, however, Gardner was absent on intermittent FMLA leave on nine occasions, including every Sunday. Due to this deviation from the then-current leave certification, the casino’s third-party leave administrator sent Gardner an email requesting that she recertify the basis for her leave. When the administrator did not receive the recertification, it sent another letter via email, this time advising Gardner that her intermittent leave was denied as of the date of the recertification request. The casino treated all absences after that date, including those Gardner had identified as FMLA leave, as unauthorized and ultimately terminated Gardner for excessive absenteeism.
Resolution of the employer’s motion for summary judgment turned on adequacy of the administrator’s re-certification notice to the employee. The casino argued that applicable regulations permit oral notice, such that its email notice was “more than required under the regulations to provide adequate notice.” It also offered circumstantial evidence that Gardner had approved notice via email. In contrast, Gardner denied she opened the email or received adequate notice of the recertification request. She further denied she ever approved FMLA notice via email and offered evidence that prior FMLA communications had been conducted through postal mail consistent with her previous request.
In denying the employer’s motion, the Michigan federal district court opined on the difference between email and oral notification: “oral notice, a person-to-person communication, guarantees actual notice to the employee. 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.” The court found the distinction “particularly significant” where an employee had requested correspondence by postal mail and not email, and concluded that a jury must decide whether Gardner had made such a request.
This decision is an important reminder that FMLA administration practices should provide employees with actual, not just presumed or constructive, notice. Here, the court questioned the adequacy of email delivery absent proof of receipt. Just three months ago, in Lupyan v. Corinthian College Inc., the United States Court of Appeals for the Third Circuit questioned the adequacy of notice via postal mail without return receipt or a tracking number. In both Gardner and Lupyan, employees withstood their employer’s summary judgment motion by contesting the adequacy or efficacy of the employer’s FMLA notice, and neither employer had definitive proof of receipt. Compounding the situation, it appears neither employer attempted to engage its employee through personal contact, which can be a great approach to avoid or clear up confusion regarding a FMLA leave. Had either employer reached out to the employee live—in person or via phone—it could have proactively addressed the notice issue before the employee made a federal case (literally) of the situation.
