248-409-1900 dburke@mi-worklaw.com

 By:  Dan Cohen – 02/24/15

The presumption of receipt derives from the longstanding common law “mailbox rule.” Under the mailbox rule, if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed that it reached its destination at the regular time, and was received by the person to whom it was addressed.” Rosenthal v. Walker, 111 U.S. 185, 193 (1884). However, the mailbox rule is not conclusive. Rather, it only carries a rebuttable presumption premised on the probability that the officers of the government will do their jobs in the usual course of business. Over time, however, this presumption has been weakened because the ordinary paper mail operation of the United States Postal Service (USPS) has become increasingly prone to system failures caused by internal and/or external human error, including dropped and lost letters or an incorrect mailing address.

Most recently, in Lupyan v. Corinthian Colleges, Inc., ___ F3d ___(3rd Cir 2014), the presumption was overcome where an employee was terminated when she failed to return to work at the end of her 12 week FMLA leave. During the ensuing FMLA interference lawsuit, the employee claimed she had not been given notice that her leave was FMLA-qualifying and did not know she was required to return to work within 12 weeks. The employer moved for summary judgment arguing that it mailed the notice and was, therefore, entitled to a presumption that notice was proper under the mailbox rule. In support of its motion, the employer submitted affidavits of the individual who mailed the notice and individuals familiar with the employer’s internal mailing procedures. However, It offered no corroborating evidence that Lupyan received the notice. According to the Court of Appeals, since the notice was not sent by registered or certified mail, return receipt requested or any of the now common ways of assigning a tracking number to the notice, there was no direct evidence of either receipt or non-receipt.

According to the Court of Appeals, sending something regular mail these days creates a very weak presumption of receipt. Thus, the question of receipt was one for a jury and summary judgment was reversed:

 “It is certainly not expecting too much to require businesses that wish to avoid a material dispute about receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.”

By contrast the Third Circuit noted that 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.

We have been advising clients for many years that when you send a document as important as an FMLA notice, a COBRA notice, benefits information or even a termination letter, it should be sent in such a manner that it can be tracked. We used to recommend certified mail, return receipt requested, but as more and more people chose not to go pick the letter up at the post office, we have moved away from the recommendation of certified mail in favor of Federal Express, UPS, or other overnight couriers, which provide a means of tracking the delivery. This is an effective way to create a strong presumption of receipt under the traditional mailbox rule and is highly recommended when you have to prove receipt of important information. Hand delivery and electronic delivery can also accomplish a “strong” presumption of receipt.