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FMLA-related notices should not be sent by regular mail: Court

FMLA-related notices should not be sent by regular mail: Court

Employers should not be sending mandated Family and Medical Leave Act notices by regular mail, says an appeals court in reversing a ruling in which an employee claimed she had never received the notice.

An FMLA expert said this is the first ruling to address this issue, and it is likely to be used as a tool by plaintiff attorneys in FMLA litigation.

Santa Ana, California-based Corinthian Colleges Inc. said it had sent employee Lisa Lupyan a notice by regular mail that she was to return from FMLA leave on April 1, 2008, but Ms. Lupyan said she had never received it, according to Tuesday's ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Lisa M. Lupyan v. Corinthian Colleges Inc.

Ms. Lupyan was terminated on April 9, 2008, about 18 weeks after she had begun to take her FMLA leave, partly because she had not returned to work within the 12 weeks permitted by law for that leave. Corinthian also said Ms. Lupyan, an instructor, was terminated because of low student enrollment.

Ms. Lupyan filed suit against Corinthian in U.S. District Court in Pittsburgh, claiming Corinthian had failed to give notice that her leave fell under the FMLA and that she was fired in retaliation for taking leave.

The District Court granted Corinthian summary judgment dismissing the case, and Ms. Lupyan appealed.

Sending an FMLA leave by regular mail was insufficient, said the unanimous three-judge panel of the 3rd Circuit in reversing the lower court ruling.

“A 'strong presumption' of receipt applies when notice is sent by certified mail, because it creates actual evidence of delivery in the form of a receipt,” said the panel, in quoting an earlier ruling.

But Corinthian “provided no corroborating evidence that Lupyan received the letter,” said the ruling. “Indeed, the only evidence (Corinthian) submitted consists of self-serving affidavits signed nearly four years after the alleged mailing date.

“Given Lupyan's denial, and the ease with which a letter can be certified, tracked, or proof of receipt obtained, that weak rebuttable presumption is not sufficient to establish receipt as matter of law and thereby entitle (Corinthian) to summary judgment,” said the ruling.

“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,” said the appellate court in reversing the lower court's dismissal of Ms. Lupyan's interference claim.

The appellate panel also reinstated Ms. Lupyan's retaliation claim.

“We believe a reasonable jury could discredit (Corinthian's) reason for Lupyan's termination as pretextual,” said the panel, in remanding the case for further proceedings.

Jeff Nowak, a partner with law firm Franczek Radelet P.C in Chicago, said this is the first decision that specifically addresses the method of providing an FMLA notice and how best this should be accomplished.

“The regulations are also silent as to the preferred method of service, so employers have been left to employ the best method available to provide those FMLA notices to their employees,” said Mr. Nowak. “Generally speaking, regular U.S. mail should be sufficient, given the lack of clarity in the regulations.”

However, Mr. Nowak said, the ruling “serves as notice to many employers throughout the country that they need to get a handle not only on their FMLA procedures, but on FMLA compliance generally.”

“Certainly, attorneys who represent employees will take notice of this decision and will employ it in their own FMLA lawsuits, so I do think this decision is going to have an impact on FMLA administration generally and on FMLA litigation specifically.”

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