The DOL regulations require FMLA-covered employers to provide various notices to employees. The regulations do not dictate how all of the notices must be delivered. Most employers utilize hand-delivery or regular U.S. mail for most pre-leave notices (eligibility and pre-leave designations) and use U.S. mail almost exclusively for post-leave notices (i.e., when the employee is already out on leave). A federal court of appeals opinion earlier this month from the Third Circuit should cause employers to analyze how they deliver important notices to employees to ensure that disputes do not arise about whether the notices were sent to and received by employees.
In Lupyan v. Corinthian College, a dispute arose over whether the employer properly notified the employee that her leave of absence was designated as FMLA leave. Lupyan was an instructor at the Corinthian College (CCI). When her supervisor noticed that Lupyan seemed depressed, he suggested she take a personal leave of absence. After Lupyan requested a personal leave of absence, the supervisor then suggested she apply for short-term disability instead. She began a "personal" leave in December 2007. Lupyan met with her physician and had him complete a DOL "Certification of Health Provider" form. Based on the submission of the health provider certification, human resources determined that Lupyan’s leave qualified for FMLA leave.
Human resources met with Lupyan and instructed her to initial her leave request as "Family and Medical Leave". Lupyan’s FMLA leave rights, including the requirement that she return within twelve weeks, were otherwise not discussed at the meeting. Later that afternoon, the human resources representative mailed Lupyan an FMLA Designation Notice designating her leave as FMLA leave and advising her of her rights under the Act. The letter was mailed first class U.S. mail. Lupyan denies she received the letter and denies that she was told she had to return within twelve weeks.
On April 1, 2008, (five weeks after her twelve weeks of FMLA leave exhausted), Lupyan announced she was ready to return to work. CCI refused to reinstate her citing low student enrollment and because she had not returned within her twelve weeks allotted for FMLA. Lupyan brought suit alleging that the college interfered with her rights under the FMLA by failing to give notice that her leave fell under that law and retaliated against her for taking FMLA leave. The trial granted CCI’s motion for summary judgment concluding that CCI had advised Lupyan of her FMLA rights; specifically the obligation that she return within twelve weeks. The court reached this conclusion relying on the "mailbox rule" evidentiary presumption that a letter properly addressed, mailed and with sufficient postage is deemed received by the recipient.
On appeal, the Third Circuit Court of Appeals reversed the trial court’s decision finding that Lupyan’s denial that she received the letter created a factual dispute that could not be resolved by the trial court on summary judgment and should be resolved by a jury. This holding is significant in that the majority of employers provide required FMLA disclosures and notices by first class U.S. mail. First class U.S. mail provides no record that the mail was actually delivered to or received by the employee. In the rare case, like Lupyan, where there is a dispute about whether the employer sent or employee received required FMLA disclosures sent by first class U.S. mail, the dispute will likely need to be determined by a jury.
Lessons for Employers.
The ideal method to deliver FMLA required notices (and any other important notices the employer wants to prove the employee received) is in a manner that the employee cannot credibly dispute that the notice was received. This is most commonly achieved by having the employee sign some form of acknowledgment of receipt. This may be done using hand-delivery; express mail delivery; certified U.S. mail return receipt requested; or electronic delivery.
Hand-delivery alone, from an evidentiary, is not much better than delivery by U.S. mail because proof of delivery will require testimony from the employer representative delivering the notice and is as easily controverted by the plaintiff-employee as is delivery by U.S. Mail (i.e., the employee denies that she received the notice). If hand-delivery is used, the better method is to have the employee sign an acknowledgment of receipt when the notice is handed the notice.
First class U.S. mail, return receipt requested also provide good evidence of receipt. The green card signed by the recipient to whom the notice was delivered can be used by the employer to show that the notice was delivered and by whom it was received.
FedEx, UPS and other express delivery service is ideal so long as it requires the employee to sign a document acknowledgment of receipt. When using express delivery services the employer will want to ensure that delivery service actually obtains a signature from the employee evidencing delivery and does not merely leave the package at the employee’s address.
Electronic delivery of documents through e-mail, text message, or other digital transmission is also a good indicator of receipt so long as there is a "read receipt", "successful fax transmission certificate" or a response from the employee indicating receipt (e.g., "I got it" or "Received").
Employers should consider whether their method of delivering important or required notices to employees is done in such a manner as to reduce the likelihood that disputes will arise over whether the notices were sent and/or received.
You can download the full opinion in Lupyan v. Corinthian College here.
Follow me on Twitter @RussellCawyer.