Really, the Form is in the Mail

mailA federal court decision may have added to the list of things that old-fashioned snail mail won’t be used for anymore, and should give employers pause to consider their methods for delivering important notices to employees.

The United States Court of Appeals for the Third Circuit recently remanded the case of Lupyan v. Corinthian Colleges Inc. for further proceedings, leaving a jury to settle a dispute over whether an employee received FMLA disclosures her employer sent via first-class U.S. mail.

In the court’s words:

“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.”

Here’s what led up to that judgment:

In December 2007, plaintiff Lisa Lupyan—an instructor at CCI since 2004—completed a request-for-leave form, specifying that she was taking “personal leave” for the remainder of the calendar year.

Court documents indicate that her supervisor, James Thomas, recommended Lupyan instead apply for short-term disability coverage. Nevertheless, Lupyan began her leave as scheduled, with her physician completing a Department of Labor “Certification of Health Provider” form. Based on the information provided in that document, however, CCI’s human resource department determined that Lupyan’s absence qualified for FMLA leave.

According to the suit, HR subsequently met with Lupyan and directed her to initial the box labeled “Family Medical Leave” on her request form. Lupyan contends that her FMLA rights—including the requirement that she return to work within 12 weeks—were not discussed in this meeting, a claim that CCI does not dispute.

CCI maintains that an HR representative mailed Lupyan an FMLA Designation Notice after the aforementioned meeting, classifying her absence as FMLA leave and advising her of her rights under the Act. Lupyan denies ever receiving said notice, and claims she was not told she was required to come back to work within 12 weeks.

On April 9—eight days after Lupyan notified CCI that she had been cleared to return to her job with certain restrictions—the school terminated Lupyan from her position, citing low student enrollment as well as the fact that she hadn’t returned within the 12 weeks allotted for FMLA leave. Lupyan subsequently sued, alleging the college interfered with her FMLA rights by failing to give notice that her leave fell under the Act.

In this case, CCI “complied with the letter of the law, to no avail,” says Ellen Storch, a Woodbury, N.Y.-based partner at Kaufman Dolowich & Voluck.

Her advice to employers in similar situations?

“Do more than the law requires when providing employees with FMLA notices.”

For example, she recommends sending notices in a way that creates evidence of receipt—say, by certified mail or an overnight carrier, which requires a recipient’s signature in order to be delivered. She also advises requiring the employee to sign an acknowledgement of receipt, to maintain communication with the employee throughout his or her leave, and to send notices in more than one way.

“If an employer can demonstrate that it attempted to deliver notices and communicate with employees about the notices in multiple ways,” says Storch, “employees will have difficulty disputing receipt of the information.”

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