On August 5, 2014, the Third Circuit Court of Appeals ruled that an employer’s claim that it mailed to its employee a notice of rights under the Family and Medical Leave Act (FMLA or Act) is not enough to rebut the employee’s denial that he or she actually received the required notice. If your business operates in New Jersey, Pennsylvania, Delaware or the U.S. Virgin Islands, Lisa M. Lupyan v. Corinthian Colleges, Inc., et al. governs how your actions in regard to providing FMLA notice will be evaluated.
Lupyan worked as an instructor for CCI’s applied science management program and sought to take leave that she identified as “personal leave” from December 4, 2007 to December 31, 2007. Lupyan submitted a “Certification of Health Provider” form which identified a mental health condition to CCI’s human resources department. Upon receipt of the form, CCI determined that Lupyan was eligible for leave under the FMLA rather than the personal leave she sought.
Lupyan met with CCI representatives who instructed her to initial the box marked “Family Medical Leave” on her request for leave form. Lupyan’s projected date of return was changed to April 1, 2008 based upon the certification from Lupyan’s physician. Later that afternoon, CCI allegedly mailed Lupyan a letter designating her leave as FMLA leave and explaining her rights under the Act as required. On or about April 1, 2008, Lupyan provided a full release from her psychiatrist and confirmed she was able to work without any restrictions or accommodations. Nevertheless, on April 9, 2008, CCI advised Lupyan that she was being terminated due to low student enrollment and because she had not returned to work within the 12 weeks provided under the FMLA. Lupyan claims this was the first time she had any knowledge she was on FMLA leave and denied she received the notice letter from the employer. Lupyan filed a lawsuit claiming that CCI interfered with her rights under the FMLA by failing to give her notice and, in addition, that she was fired in retaliation for taking the FMLA leave. The district court granted an initial summary judgment motion by CCI and then, on its own, reversed its ruling on the FMLA interference claim since there was a factual dispute as to whether CCI had informed Lupyan of her FMLA rights. CCI then filed an amended summary judgment motion which included affidavits testifying that the letter was properly mailed to Lupyan. Based upon the affidavits and under the “Mailbox Rule,” the court found that Lupyan had received the letter and entered summary judgment in favor of CCI.
The Third Circuit reviewed the presumption of receipt that derived from the common law “Mailbox Rule” which holds that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed.” The court held, however, that this “is not a conclusive presumption of law” but rather it was a “rebuttable inference of fact” that could be weighed by a jury to determine whether actual receipt occurred. Other than the affidavits certifying the letter was prepared and placed in the mail, CCI provided no other corroborating evidence that Lupyan actually received the letter. The Third Circuit Court held that, in view of Lupyan’s denial of receipt, the rebuttable presumption was not sufficient to establish receipt as a matter of law to entitle CCI to summary judgment.
As most employers already know, the FMLA requires providing employees with a general and individual notice of their rights under the FMLA. The general notice requirement can be easily met by posting a notice of FMLA rights in a conspicuous place and/or setting forth those rights in an employee handbook. In regard to the individual requirement, notice of FMLA leave is required once the employer becomes aware that the employee is entitled to FMLA-qualifying leave. The U.S. Department of Labor Regulations state that the employer must (1) within five business days notify the employee of his or her eligibility to take FMLA leave; (2) notify the employee in writing whether the leave will be designated as FMLA leave; (3) provide written notice detailing the employee’s obligations under the FMLA and explaining any consequences for failing to meet those obligations and (4) notify the employee of a specific amount of leave that will be counted against the employee’s FMLA leave entitlement. The court found that CCI’s inability to establish actual receipt failed to satisfy the employer’s obligation to provide individual notice under the FMLA regulations. It is instructive to reiterate what the court said concerning an employer’s ability to provide proof of receipt:
In 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.
The takeaway for employers in the Third Circuit is that simply mailing a letter and placing a copy in a file will not be sufficient evidence of receipt if an employee denies actual receipt. Employers should take care to document receipt of FMLA notice letters in some manner, either by confirmation of hand delivery, by email or by sending the letter via registered mail, return receipt requested, or via overnight mail, signature required. An employer should make certain that its records include this documentation of receipt to avoid the factual dispute that allowed the employee in this case to continue litigating her claims.
