The Modern Workplace

When I conduct employment trainings, I often caution executives and managers to think before they email. In my experience, people tend to be more casual and to use poorer judgment when they email than when they write a memo or letter that, by its nature, seems more formal.

Now, it turns out, that you better be careful before you snail mail too. In what some commentators are calling a game changing decision, the U.S. Court of Appeals for the Third Circuit recently held that a former employee could proceed to trial in her lawsuit under the federal Family Medical Leave Act (FMLA) based on her assertion that she did not receive an FMLA notice that her employer sent to her by regular U.S. mail. In the case, Lupyan v. Corinthian Colleges, Inc., No. 13-1843, 2014 WL 3824309, at * 7 (3d Cir. Aug. 5, 2014), the plaintiff Lisa Lupyan went out from work on a medical leave. After Lupyan provided medical certification to take FMLA leave, her employer, Corinthian Colleges, mailed her a legally required FMLA notice stating that Lupyans leave was being designated as FMLA leave and that the FMLA provided for 12 weeks of leave. When Lupyan failed to return to work at the end of 12 weeks, the College terminated her. Lupyan then sued, claiming a violation of the FMLA. The College argued, however, that the case should be dismissed without a trial given that it mailed the required FMLA designation notice and Lupyan did not return within 12 week or comply with the FMLA notice contents. Lupyan claimed, however, that she never received the mailed FMLA designation form.

Siding with Lupyan, the Third Circuit Court of Appeals declined to follow the longstanding mailbox rule, under which courts have traditionally presumed that a properly addressed and stamped letter reached its destination. Noting the new technological age in which we live, the Court stated that:

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 senders mailroom.

Lupyan Opinion (PDF).

 What does this mean for employers?  There are a couple of important take-aways:

• While the Third Circuits opinion in Lupyan is not binding on courts in other jurisdictions, it should be a wake-up call for employers to think carefully about the manner in which they deliver legally required notices and other important information to current or former employees. If an employer will need to be able to prove unequivocally that a notice was both delivered and received, it should send the notice in a manner that allows it to be tracked and its receipt to be confirmed. Since the receipt of emails can be hard to verify and emails can sometimes be diverted by a spam filter, hand-delivery or certified or overnight mail, return receipt requested, may be preferable.
• The Third Circuits ruling comes during a period of increased government focus on FMLA compliance. The U.S. Department of Labors FMLA Branch has announced its intention to step up FMLA enforcement and workplace audits. In connection with any FMLA audit, an employer can expect that the employers required posting, employee notice, and recordkeeping practices will be key. So, it may be time to consider a self-audit to ensure that your company is taking all the appropriate steps to comply with the FMLA and to make sure that required employee notices are being both delivered and received.
• Finally employers should also remember that, apart from the FMLA, they may have disability accommodation obligations to employees who are unable to immediately return at the end of FMLA leave. As we've covered in past blogs, as the end of FMLA approaches, employers who face an employee request for additional leave time need to consider whether the employee may be disabled and whether additional leave time would be a form of reasonable accommodation.