Why do lawyers insist that everything be sent by certified or registered mail? A new case from the Third Circuit Court of Appeals demonstrates how the inability to prove that a required notice had actually been mailed resulted in a jury answering that question. Lupyan v. Corinthian Colleges involved a lawsuit filed by a terminated employee alleging that her employer had interfered with her right to take Family and Medical leave.
 
The plaintiff requested leave, and provided the required medical certification. The employer claimed that as a result, it sent a letter to her via regular mail informing her that she had been approved for FMLA leave, and that the leave taken would count against her 12-week entitlement. About four months later, the plaintiff informed her employer that she had been cleared to return to work. The employer denied the reinstatement request on the basis that she had not returned to work within the 12-week leave period.
 
The district court granted summary judgment to the defendant on the FMLA retaliation claim, relying on affidavits submitted by the employer’s HR personnel, attesting to the fact that they notified the plaintiff by letter that she would be using her FMLA leave entitlement. On appeal, the plaintiff claimed that she never received the notice, and if she had understood that her job was in jeopardy, could have received earlier medical clearance to return to work.
 
The Third Circuit agreed, remanding the claim for a jury trial. The court refused to apply the “mailbox rule” that presumes delivery and receipt in the ordinary course of business. The plaintiff’s sworn testimony regarding lack of receipt was equal to the employer’s affidavits, and negated their evidentiary weight. The Third Circuit stated that modern business practices should result in routine evidence of delivery and receipt, through use of registered or certified mail, overnight delivery service tracking or electronic delivery receipt.
 
The court did not conclude that the plaintiff never received the notice, only that there was a material question of fact on this issue for the jury to determine. Legally required notices such as FMLA designations should always be sent to employees in a manner that allows documentation and preservation of evidence of delivery and receipt. If the employee refuses to accept delivery, the employer can still show that it was sent in accordance with the regulations. By saving a few dollars in mailing expenses, the employer in this case likely incurred at a minimum, tens of thousands of dollars in legal fees and expenses relating to this claim.