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Court Finds Mail Unreliable For Sending FMLA Notices

Volume 2, Issue 16
August 30, 2014
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Blue-MailboxFor years American courts have recognized what is called the “mailbox rule” – the presumption that a letter properly mailed will reach its destination in a timely fashion. A federal appeals court may have changed all that.

In reviewing a case involving the Family Medical Leave Act, the court found that simply mailing correspondence is a relatively weak indicator an employee actually received it.

As a result, employers who send these notices are left wondering whether notice by U.S. mail is acceptable anymore, according to attorney Jeffrey S. Nowak of the law firm of Franczek Radelet PC.

The August 5 decision by the Third Circuit Court of Appeals analyzed the strength of different forms of notice. Certified mail, for example, offers a “strong presumption” of receipt by the addressee, the three-judge panel determined, while regular mail assures only a “weaker presumption.” The court declared this “weaker” presumption is nullified whenever the addressee denies receipt of the mailing.

“Think about that: A letter is not considered delivered by regular U.S. mail whenever the addressee proclaims he or she did not receive it,” Nowak observed.

The three-judge panel wrote that, “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.”

Nowak advises that especially in jurisdictions covered by this court (Pennsylvania, New Jersey and Delaware), employers should send all FMLA notices by certified mail, overnight mail or email, that is capable of verifiable receipt.

“Hand delivery is good, too, so long as you obtain a signature that the employee received it,” he said, noting that regular phone communications with the employee prior to the dismissal also would have prevented this outcome in this particular case.

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