Employers Must Make Sure They Have Evidence of Employee’s Receipt of FMLA Notices
In a recent case decided by the United States Court of Appeals for the Third Circuit, Lupyan v. Corinthian Colleges Inc., an employee who did not return to work until after her 12 weeks of leave under the Family and Medical Leave Act (FMLA) had expired was able to avoid summary judgment against her because her employer was unable to come up with any hard evidence that she had actually received the FMLA notices mailed to her while on leave. The decision is a clear warning to employers that they run a real risk in FMLA litigation that notices sent by ordinary mail to an employee on leave may not carry the day.
Background
In Lupyan, plaintiff’s supervisor suggested plaintiff take a leave of absence to deal with her depression. At the suggestion of the supervisor, plaintiff applied for short term disability benefits and obtained a doctor’s certification of a mental condition. Plaintiff was instructed by an HR employee to check the “family leave” box on her leave application, and HR thereafter mailed her a letter detailing her rights under the FMLA. More than 12 weeks later, plaintiff advised HR that she had her doctor’s clearance to return to work, but, HR advised her that she no longer had a position because, for among other reasons, she had not returned to work within the 12 weeks allotted by the FMLA. Plaintiff brought suit alleging interference with her rights under the FMLA claiming she had never received any notice of her FMLA rights. In opposition to her employer’s motion for summary judgment, which relied on the letter sent by HR, plaintiff submitted an affidavit stating that she had received no such letter. The trial court granted the employer’s motion, reasoning that under the “mailbox rule” plaintiff was presumed to have received the letter advising her of her FMLA rights. The court also relied on the notice provisions in the employer’s policy manual, a copy of which plaintiff acknowledged had been issued to her.
The Third’s Circuit’s Opinion
The Court of Appeals reversed the order of summary judgment in favor of the employer. The Third Circuit noted that an employee claiming interference with her FMLA rights must show prejudice as the result of an employer’s violation of the statute but ruled that, here, plaintiff could show prejudice if she did not receive notice of her FMLA rights. In this regard, the Court acknowledged that the employer’s policy manual provided general notice of those rights but ruled that such notice was insufficient given that the regulations promulgated under the FMLA require individual notice.
Thus, the issue came down to whether the employer could rely on the “mailbox rule” presumption that the FMLA notice sent to plaintiff by HR had, in fact, been duly received. The Third Circuit noted that the presumption had been established by affidavits from personnel in the employer’s mailroom that the notice had been sent to the proper address but ruled that under the “bursting bubble” theory, the presumption of due receipt was negated by plaintiff’s affidavit that she did not receive it, leaving the issue of actual receipt for a jury to decide. In so ruling, the Court pointed out that “the Letter was not sent by registered or certified mail, nor did [the employer] request a return receipt or use any of the now common ways of assigning a tracking number to the Letter.” Thus, there was no independent evidence of actual receipt on which summary judgment for the employer could be based.
The Takeaway
The Lupyan decision makes clear that an employer does not satisfy its FMLA notice obligations unless it can establish actual delivery to the employee of the notice. It is thus imperative that employers obtain a written receipt or use some other tracking mechanism to establish actual delivery. This should be done as a matter of routine. In addition, a follow-up phone call or email to the employee to confirm that the notice was received and understood would go a long way to prevent claims of insufficient notice. In Lupyan, while plaintiff was on leave, the employer advised her that she would need clearance from her doctor to return to work, but never followed up with her as to when her allotted FMLA leave would run out.
For questions concerning this blog or family and medical leave issues in general, please feel free to contact any attorney in the Gibbons Employment and Labor Law Department.