Sometimes the most mundane tasks can make or break your case. Here's something I never thought I'd say: Big decision from the Third Circuit about how to mail FMLA notices! Read the opinion in Lupyan v. Corinthian Colleges, Inc. (for my Pennsylvania readers, the Third Circuit is our jurisdiction) [an enhanced version of this opinion is available to lexis.com subscribers]. Sometimes when employees take leave, employers classify that leave as FMLA leave. However, when the employer does that, it must give the employee notice that the leave will be classified as FMLA leave. In Lupyan, the employer mailed just such notice to the employee. Now, if you went to law school, you no doubt remember the "mailbox rule." If you mail something, "it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed" (because we all know that almost nothing ever goes wrong at the Post Office). So, the employer should be safe here, right? Not so fast! The mailbox rule creates a presumption . . . but it is a rebuttable presumption. Here, the employee denies that she ever received the notice. Is that it? Is that all it takes? Well, apparently that's all it takes to defeat the presumption on summary judgment (I believe at trial a jury may still conclude that she actually did receive notice). The Third Circuit summarizes:
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.
Although the Court mentions modern technology as an appropriate alternative, don't forget about the old-fashioned way: hand delivery (with signature). HT: Eric Meyer Here's the wrong way to deliver FMLA notices to employees.
Read additional employment law articles on Philip Miles’ blog, Lawffice Space.
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