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!
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