A little while ago I wrote an article on the mailbox rule, and how the traditional use of the U.S. Postal Service was slain by the Third Circuit in Lupyan vs. Corinthian College. In that case, Lupyan was placed on FMLA leave, and when she failed to return to duty after her 12-week absence, the college fired her. The employee cried foul, saying that the college interfered with her FMLA rights, and she claimed that she was not aware of her leave rights, nor did she receive the notices from the college.
At the initial trial, the lower court ruled in favor of the college citing the “mailbox rule,” that there is an evidentiary presumption that a letter properly addressed and mailed with sufficient postage is deemed to be received by the intended recipient. However, on appeal the Third Circuit Court of Appeals reversed the trial court’s findings and decision that her claim that she did not receive the mail created a factual dispute, and the summary judgment in favor of the college should not have been rendered.
Well, fasten your seatbelts because another judicial decision will have you talking to yourself as to what we can do to prove that an employee received an important personnel notice, decision or requirement.
In the Lupyan decision, a federal appellate court decided that an FMLA notice sent to an employee by U.S. mail cannot be assured that the employee actually received it. Now I know the U.S. Postal Service is having its struggles, but since the days of Benjamin Franklin we have relied upon it, with a high degree of assurance, that first-class mail properly addressed and stamped is delivered.
In October 1993, President Clinton issued Executive Order 12873 designed to use the electronic medium as a basis to improve the procurement and acquisition process. The intent of this executive order was to:
- “The private sector should lead.” The Web Industry and the W3C has been proactive in addressing concerns of those using the Web (including content control, Web privacy. intellectual property, access for the disabled, etc.)
- “Governments should avoid undue restrictions on electronic commerce.“ The Web is growing and changing very quickly — often for the better, consequently it is often better to allow the Web to mature on its own rather than to potentially impede its development.
- “Where governmental involvement is needed, its aim should be to support and enforce a predictable, minimalist, consistent and simple legal environment for commerce.“ Stability leads to user and market confidence, key elements to the Web’s success.
- “Governments should recognize the unique qualities of the Internet.” The Internet and Web are unique.
- “Electronic Commerce over the Internet should be facilitated on a global basis.”
In the October 15, 2014 decision of Gardner v. Detroit Entertainment LLC dba MotorCity Casino, the United States District Court for the Eastern District of Michigan determined that a notice sent by email is not reliable as well and could not be used to demonstrate that an employee actually received a personnel decision or notice that they were required to do something to preserve their employment.
In the instant case, heard by this court, an employee, a casino worker, took intermittent FMLA leave nine times, which was five more than anticipated by her physician, and she also notified her employer that she could not work every Sunday. Her employer sought recertification of her degenerative back condition due to the increased frequency and her pattern of being absent beyond the original certification for intermittent leave, to include Sunday.
Because of these changed circumstances the employer had every right to request that a new certification be provided. The employer, instead of using the U.S. Postal Service as before, now sent her a notification for a new medical certification by email. What is particularly troubling about this decision is that the employer sent her the notices for her to provide a new medical certification to her email address that she provided and had instructed the employer to use as a viable means of communicating with her while she was on FMLA leave.
Well as you can imagine when the employee was terminated for extended unauthorized absences, after she twice failed to return the requested new medical certification, she claimed that she never received any of the employer’s emails.
What is not evident from reading the case decision is whether the employer utilized the email function to receive a return notice when the original emails were delivered and another return receipt when the employee opened and read them. Here, the court reasoned that absent any proof that the employee was duly put on notice that he/she is required to act in some fashion is not compelling proof that constructive notice was served.
While the FMLA regulations only require that an employer provide the employee with an oral notice of the need to provide a medical certification or recertification, this court appears to prefer the face-to-face method as opposed to electronic mail.
There is an essential ingredient missing from all of this, and that is the employee is at work and the ability to provide a face-to-face discussion is available. Perhaps I am too old school, but any face-to-face discussion for which an employee is required to do something, that is not reduced to writing, is not worth the paper it is written on.
Because the employer could not demonstrate, beyond any reasonable doubt, that the employee was notified twice that she had to submit a new certification that her medical condition prevented her from performing her normal duties, including Sunday, the court found that the matter in question should more properly be decided by a jury as to whether her employer interfered with her FMLA rights.
As reflected in my earlier article, we now have an MSPB decision and a court decision in Lupyan that snail mail can no longer be relied upon as proof of delivery of important personnel decisions. Thus, managers and HR practitioners are beginning to run out of cost effective options.
It is becoming increasingly more burdensome for employers to demonstrate that they have done everything reasonable to ensure their delivery of notices are free from any harmful procedural errors. It is more clear than ever that notices of adverse action, or other important personnel decisions requiring an employee to comply with a legitimate employer request, will necessitate extraordinary measures to demonstrate that communications have been accomplished. All of this adds cost at a time when both human and fiscal resources are rapidly shrinking. Person-to-person discussions are not always available, and when first class mail, certified mail, and email no longer satisfy that important decisions have been conveyed and received, then agencies will have to resort to courier delivery or other costly measures.
Reading cases like this only makes me very happy that I have retired, because I never had a lot of patience with stupidity, bureaucracy, taxpayer monies being wasted, or line management being second guessed by people who have never had any operational responsibility for an organization or program accomplishment. Having said that, I will vent my frustration by rerolling the toilet paper to make it tighter.