"I didn't get it" - The New FMLA Hurdle?
How do you prove compliance with the FMLA’s notice requirements? Two recent court decisions have complicated the answer to this question. The FMLA requires employers to provide general notice of employee rights (e.g., poster, handbook) and specific individual notice when an employee takes FMLA leave. Failure to provide the required notices could result in an “interference” claim – with concomitant damages. Without much hesitation, many employers send those FMLA individual notices by regular mail and/or email. Two recent federal court decisions have focused not on the front end of that exchange (“Did the employer send the notice?”) but the back end (“Did the employee receive it?”). That is the new problem.
Regular U.S. Mail
In Lupyan v. Corinthian Colleges, the Third Circuit Court of Appeals (covering Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands) addressed the sufficiency of sending a FMLA Designation Notice by regular mail. The employer said it was sent. Lupyan denied receiving it. She was terminated for failing to return to work within the FMLA’s 12-week period and due to low student enrollment. Lupyan sued, alleging if she had known her leave was limited to 12 weeks, she would have returned to work and avoided termination.
The employer relied on the “Mailbox Rule” – which presumes a letter reaches its destination and is received once deposited with the U.S. Postal Service. The Appeals Court (noting no one ever has claimed the postal service is perfect and infallible) emphasized that “rule” is not a conclusive presumption of law, rather it is a rebuttable inference of fact. In other words, if an employee contends she did not receive the notice, then the employer is stuck. That key question (did she or did she not receive it) had to be determined by a jury.
In so ruling, the Third Circuit stated there is a “strong presumption” of receipt when the notice is sent by certified mail (where there is proof of actual delivery in the form of a receipt) versus regular mail – where no such proof is generated. The Appeals Court reasoned:
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 negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.
Because the employer provided no corroborating evidence that Lupyan received the FMLA notice, the issue must be decided by a jury. Well, the Third Circuit mentioned “computerized communications”, so what about sending FMLA notices by email?
In Gardner v. Detroit Entertainment, LLC d/b/a MotorCity Casino, a Michigan federal district court addressed the transmission of FMLA notices by email. Gardner exceeded the amount of intermittent leave authorized by her physician. The employer sent a recertification notice by email. Gardner denied receiving the email. Gardner subsequently was terminated under the employer’s attendance policy for accumulating a number of unexcused absences. Gardner sued.
The dispute revolved around whether the employer gave Gardner proper notice of her need to recertify her absences. The Court initially noted that oral notification of a recertification obligation is sufficient under the FMLA regulations. 29 CFR § 825.305(a). In fact, the Court championed person-to-person oral notification over email notification because it “guarantees actual notice to the employee.” Apparently, the Court ignored the real-life “he said-she said” dilemma that arises when an employer relies solely on oral notification – without simultaneous written documentation of that conversation.
The Gardner Court explained the “transmitting of an email in the absence of any proof that [it] had been opened and actually received, can only amount to proof of constructive notice.” Thus, a jury will decide whether Gardner, in fact, received the email. That decision will be further complicated by another question to be resolved by a jury: the employer contended Gardner requested notification by email. Gardner claimed otherwise – explaining that she did not use email very often.
What to do?
As these two decisions highlight, employers should reexamine their internal procedures for providing FMLA notices to their employees. Simply retaining documentation that the notice was mailed (or emailed) may no longer be sufficient to avoid an expensive and time-consuming jury trial if the employee self-servingly denies actual receipt.
Make it your New Year’s resolution to tighten up your FMLA notification procedures. The extra effort may result in winning at the summary judgment stage versus the time and expense of a jury trial.