Send your Family and Medical Leave Act (FMLA) notices to employees via certified mail or risk having your summary judgment motion denied—that’s the message from U.S. Third Circuit Court of Appeals in Lupyan v. Corinthian Colleges, Inc.

Lupyan, an instructor for Corinthian Colleges, Inc. (CCI), request personal leave and actually took more than 12 weeks. CCI met with Lupyan and had her initial the box marked “Family Medical Leave” on the leave request form. It then mailed Lupyan a letter advising her that she was on FMLA leave and explaining her FMLA rights. Lupyan said she never got the letter—so she didn’t know she was on FMLA leave and only had 12 weeks available. If she had known, Lupyan says she would have returned to work earlier and not been terminated. She filed claims under the FMLA for interference and retaliation.  After the district court granted summary judgment in favor of CCI, the Third Circuit reversed and found that her claims should be decided by a jury.

The FMLA regulations require employers to send a written “rights and responsibilities” notice within 5 days of the employee’s request for leave. Although the regulations permit mailing the notice, the Court said regular mail was not enough to obtain summary judgment if the plaintiff says she never got the notice:

“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.”

Although the failure to notify Lupyan is really just a statutory violation, if Lupyan can convince a jury that the failure prejudiced her, she could win on her interference claim.

What have we learned? Send your notice and get a receipt. Certified mail gets you a receipt. Hand delivery can as well—but only if you have the employee sign that she received it. Following up with an email or resending via email is another way to get the proof you need. The difference between getting that proof and not is the difference between getting summary judgment (which we all want) and preparing for a jury trial (which lawyers think is fun but clients often don’t).