Courts don’t trust the U.S. Post Office or Gmail, Yahoo Mail, AOL Mail, or any other email service to deliver your Family Medical Leave Act (FMLA) notices to employees. So what’s an employer to do? 

Use certified mail or some other form of correspondence with “verifiable receipt” — or deliver the notice in person and get the employee to sign a document stating he or she received it.

Anything short of that, and your hopes of dismissing an FMLA notice claim short of it going to trial are next to nil thanks to recent court rulings.

U.S. Post a no go

This past summer, HR Morning introduced you to Lisa Lupyan, who sued her former employer Corinthian Colleges, claiming it never sent her an FMLA notice.

Corinthian claimed it had mailed a notice to her via U.S. Post, and it asked for a court to dismiss her case on summary judgment.

No deal, the court ruled. It said without some form of “verifiable receipt” — like that provided by certified mail — all Lupyan had to do for her case to proceed was deny she’d received the notice, which she did.

This ruling effectively through the long-standing “mailbox rule” out the window. It said that when a letter was put into the post office or delivered to a postman, it is presumed to have reached its destination and the person to whom it was addressed.

Bottom line: Simply mailing a notice via regular post isn’t going to help you in a court of law anymore — if an employee claims he or she didn’t receive it.

Email gets shot down, too

Now, a federal appellate court is saying emailing FMLA notices won’t help employers in these cases either.

It issued that ruling in a case in which Summer Gardner claimed her former employer, Detroit Entertainment, LLC, failed to send her a notice that she needed to obtain recertification for her FMLA intermittent leave.

What happened was after noticing an odd pattern to her FMLA absences, the employer said it email Summer a notice that she needed to recertification. But she claimed she never received the notice.

When she failed to comply with the recertification request, her absences where counted as unexcused, and she was fired.

The court ruled since Detroit Entertainment couldn’t provide proof that Summer had actually obtained the notice, “it was bound to accept Plaintiff’s [Summer] version of the events.”

Bottom line: If you want to mount a proper defense against employees’ claims they never received an FMLA notice, it’s certified mail — or some other method providing verifiable receipt — or nothing.

Employers in a tough spot

Employment law attorney and author of the the FMLA Insights blog Jeff Nowak was less than enthusiastic about this recent pair of rulings.

His take on them:

Let me get this straight — one court just told us snail mail is unreliable for sending FMLA notices.  Now, another tells us electronic mail is unreliable for sending notices?  Someone please explain to me: How exactly does an employer ensure that an employee has received FMLA notice?  Is our only option to deliver it directly to the employee’s front door, with balloons and an entourage, ala Publishers Clearing House?

Corporate communications are increasingly being sent electronically, so this court’s insistence in this day and age that the employer show that the email actually was delivered (despite the clear email trail) is ludicrous.

Cite: Lupyan v. Corinthian Colleges & Gardner v. Detroit Entertainment, LLC

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