In its recent decision in the Third Circuit Court of Appeals (which includes New Jersey) issued a ruling that signals heightened obligations for employers communicating with employees about their rights under the Family Medical Leave Act (“FMLA”). Prior to that ruling, employers typically relied upon the “Mailbox Rule” (which presumes receipt of a letter properly deposited into the U. S. Mail) as evidence that mandated FMLA notices were received by employees. After , however, the Mailbox Rule’s viability in the FMLA context is questionable, and prudent employers should institute procedures to insure that FMLA notices are served by certified mail or other method of traceable transmission so that actual receipt by the employee can be established.
The Facts: Lisa Lupyan was an instructor for Corinthian Colleges, Inc. (“CCI”). In 2007, Ms. Lupyan requested a personal leave of absence to recover from depression, and thereafter provided CCI with a physician’s certification of a mental health condition. As a result, CCI determined that Ms. Lupyan was eligible for FMLA leave as opposed to using her personal leave allotment.
Following receipt of the physician’s certification, a CCI supervisor met with Ms. Lupyan and instructed her to mark the “Family Medical Leave” box on her Request for Leave form. However, at trial Ms. Lupyan alleged that there was no discussion about her rights under the FMLA, and thus she was unaware that her leave would be counted towards her 12-week FMLA leave entitlement. CCI did not challenge that allegation, but relied upon the fact that later that same day it sent Ms. Lupyan a letter via regular mail enclosing the following FMLA notices: i) a Notice of Eligibility and Rights and Responsibilities, and ii) A Notice of Designation advising that the leave was being counted towards her FMLA leave entitlement. At trial, Ms. Lupyan denied receiving the letter.
Following her termination after 18 weeks of leave, Ms. Lupyan filed suit alleging that CCI interfered with her FMLA rights by, among other things, failing to provide her with adequate notice of her FMLA rights. After CCI provided affidavits attesting that it had mailed the FMLA notices to Ms. Lupyan, the trial court invoked the Mailbox Rule and found that Ms. Lupyan had received adequate notice of her FMLA rights and her case against CCI was dismissed. Ms. Lupyan appealed.
The Finding: On review, the Third Circuit addressed the FMLA regulations mandating the timing and content of written notices employers must provide to employees invoking leave rights under the FMLA, including notice that an absence falls within the scope of the FMLA. Next, the court departed from commonly-held precepts and reasoned that the Mailbox Rule did not establish a conclusive presumption that Ms. Lupyan received the required FMLA notices. Instead, it merely created a rebuttable inference of fact, which the Third Circuit characterized as “weak” in this instance because CCI could not provide any corroborating evidence that the FMLA notices were in fact received. In contrast, Ms. Lupyan’s affidavit denying receipt was enough to overcome the presumption under the Mailbox Rule.
In ruling against CCI, the court noted the relative ease with which employers can track receipt of correspondence, whether it is through computerized communications, certified mailing, postal tracking or other proof of receipt at negligible cost. As a result of the court’s finding, Ms. Lupyan’s case alleging a violation of her FMLA rights by CCI was reinstated.
The Take-Away: In light of , it is now incumbent upon employers to insure that any notices of FMLA rights be delivered by a trackable method of delivery such as email with delivery notification; certified mail, return receipt requested; recognized carrier with a signature of receipt; or, when possible, personal delivery with acknowledgement of receipt. Doing so will enable employers to overcome claims by employees that they were not fully apprised of their leave rights under the FMLA.