Notice by Snail Mail May Be Out-of-Date
A federal appellate court recently ruled that the “mailbox rule” – a legal presumption of mail delivery when a stamped letter is placed in the mailbox – may be out of date.
In a case regarding the Family and Medical Leave Act (FMLA), the Third Circuit Court of Appeals ruled on August 5th that an employer did not prove its employee actually received notice of FMLA compliance requirements merely because it placed correspondence in a stamped envelope and put the envelope in the U.S. mail.[1]
Employers who seek to comply with FMLA notice requirements must take note of this decision. In the past, courts have recognized the “mailbox rule,” and an affidavit stating that a properly stamped letter had been deposited in a mailbox was legally presumed to have been delivered. But the “mailbox rule” is a rebuttable presumption – not a conclusive presumption – of delivery. Be aware of the difference!
Lupyan v. Corinthian Colleges Case
The Lupyan case involves an employee who had been showing signs of depression. Her boss at Corinthian Colleges encouraged her to take time off and she completed a leave of absence request form seeking “personal leave.” On reviewing it, her supervisor suggested that she apply for short-term disability instead. He told her to schedule an appointment with her doctor to certify eligibility for the disability benefit, and she did so.
When Corinthian received the physician’s certification, it realized that she was eligible for leave under FMLA rather than personal leave. It sent a letter to her advising her of the change in leave status and instructing her to complete standard FMLA documentation. Everything about this status change was legitimate.
As time went on, however, the waters muddied. Corinthian’s employee did not return the FMLA documents and she did not return at the end of 12 weeks as FMLA would require. Corinthian sent her notice that she was terminated because she did not comply with FMLA mandates.
The employee countered by contending that she had never received the notice, and thus she could not be expected to know that she had violated FMLA. She sued, charging that Corinthian had interfered with her rights under FMLA by failing to give notice that her leave fell under the Act, and she also charged that she was fired in retaliation for taking FMLA leave.
Under the Family and Medical Leave Act, when an employer becomes aware that an employee is taking FMLA-qualifying leave, the employer must:
- Notify the employee his his/her eligibility within 5 days,
- Notify the employee that the leave will be designated as FMLA leave,
- Provide written notice of the employee’s obligations under FMLA and explaining any consequences for failing to meet those obligations, and
- Notify the employee of the specific amount of leave that will be counted against the employee’s FMLA leave entitlement.[2]
The court noted that these notice requirements are intended “to ensure that employers allow their employees to make informed decisions about leave.”[3] Although Corinthian’s employee handbook provided notice of FMLA, the court concluded that such notice was only general, and could not be relied upon where actual notice was required.
The important principle established in this case is that the Third Circuit did not allow the “mailbox rule” to prove receipt. The rule “is not a conclusive presumption of law” it stated, and when the employee rebutted the presumption by claiming that she did not receive notice, then the employer must rely upon additional evidence to prove receipt.
Certified mail, it noted, would have provided the employer with a “strong presumption” of receipt because a written receipt is returned to the employer. In the absence of such corroborating evidence, the Third Circuit was not persuaded that the employer had met its burden of providing actual notice.[4]
We advise our clients to review their notice procedures for all federal and state employment laws that mandate actual notice to an employee. When notice is required by law, then receipt of such notice becomes central to the issue of whether or not the employer can take action based upon timing and receipt of that notice. We suggest that an employer use one of these:
- Certified mail, return receipt required
- Overnight mail with delivery confirmed by email
- Email with delivery confirmed by return email (make sure that email is approved by the employee so email will not be filtered out)
- Hand delivery with signed receipt
It also would be appropriate to keep in communication with an employee who is out on FMLA leave so that other issues can be dealt with, such as accommodation to physical limitations upon return to work.
This article is provided for general information and should not be relied upon as legal advice for a specific situation. If you are in need of specific advice or legal representation, please do not hesitate to contact us.
©2014 Bea & VandenBerk
[1] The decision is Lupyan v. Corinthian Colleges, W.D. Pa. No. 2-09-CV-01403 (August 5, 2014).
[2] 29 CFR §825.300(d)(6).
[3] Lupyan, Ibid., p. 6.
[4] The court noted that it had ruled similarly in a 2011 case involving mandated notice under the Truth in Lending Act. Cappuccio v. Prime Capital Funding LLC, 649 F.3d 180, 190 (3d Cir. 2011).