Sending FMLA Notices via First Class Mail Not Good Enough, 3rd Circuit Says

Author: Gloria Ju

August 18, 2014

An employer must go to trial on a Family and Medical Leave Act (FMLA) interference claim because an employee denied receiving an FMLA designation notice sent via first class mail. Without evidence of actual proof of delivery, a jury must decide the case, the 3rd Circuit Court of Appeals held in Lupyan v. Corinthian Colleges, Inc.

The employee had requested personal leave from December 4 through December 31, 2007. After the employer received a completed Certification of Health Provider, it determined that the employee was eligible for FMLA leave and that her projected return to work date was April 1, 2008. On December 19, 2007, the employer allegedly mailed a letter to the employee advising that her leave was designated as FMLA leave and explaining her FMLA rights. When the employee did not return to work within the 12 weeks allowed by the FMLA, the employer fired her. The employee claimed that, up until that point, she had no knowledge she was on FMLA leave and would be terminated if she failed to return to work within the requisite 12 weeks.

The employee alleged that the employer interfered with her FMLA rights by failing to notify her that her leave fell under the FMLA. Based on the affidavit of an HR coordinator who swore she personally prepared the letter and placed it in the employer's outgoing mail bin, a district court relied on the long-standing "mailbox rule" to find in the employer's favor. The mailbox rule holds that a properly mailed letter is presumed to reach its destination and the addressee in a timely manner.

The appeals court stated that a "strong presumption" of an addressee's receipt of a letter exists when using certified mail because it creates actual evidence of delivery in the form of a receipt, while using regular first class mail offers a "weaker presumption" because no receipt or other proof of delivery is generated. Despite the HR coordinator's affidavit, the court pointed out a lack of corroborating evidence that the employee received the letter (e.g., sending by registered or certified mail, requesting a return receipt or using "any of the now common ways of assigning a tracking number" to a letter). Therefore, a jury must decide whether the employee received the letter.

Employers in the 3rd Circuit (Delaware, New Jersey, Pennsylvania) should pay close attention to the court's opinion: "[I]t 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."