Two recent cases produced what appear to be different answers to the question posed above. In the first case, a U.S. District Court in Gardner v. Detroit Entertainment, (Case No. 12-14870, October 15, 2014, USDC, E. Mich.) ruled in favor of an employee who failed to open her employer’s email asking that the employee “recertify” her medical condition under the Family and Medical Leave Act (the “Act”). The Court denied the employer’s motion for summary judgment on the issue of whether the employee had failed to provide such recertification.
The Act requires an employee to “certify” their medical condition. An employer may ask for recertification of the employee’s health status. Failure to supply the recertification is grounds for denial of leave under the Act. If leave under the Act is denied the employee might be terminated in accordance with the employer’s “unexcused absence” policy.
In Gardner, the employee claimed a wrongful denial of leave under the Act. An increased level of unanticipated absenteeism on the part of the employee aroused the employer’s concerns. A letter was sent to the employee by the employer requesting a recertification of the employee’s health condition. When the employer failed to receive a response, the employer denied leave under the Act. The leave was intermittent based on the employee’s medical condition so while the employee was available to discuss her condition with the employer while at work, no employer representative did so.
Having failed to receive the recertification it requested, the employer treated the absence of the employee as “unexcused” and imposed a sanction of termination. The employee’s appeal of the denial of leave under the Act to the employer’s administrator was unsuccessful.
The employee denied that she had ever indicated that notices sent to her were to be sent by “email only” as reflected on the employer’s administrator’s records. She denied having received her employer’s email, and, therefore contended that the notice to her sent via email was insufficient to trigger recertification. The Court opined that oral communication guaranteed “actual notice” to the employee, if given, and as permitted by regulation, but an email to the employee when she preferred correspondence by mail was insufficient, particularly in the absence of proof that the email was opened and the notice actually received. The dispute over a material fact in the case, e.g. whether the employee had designated “email only” for notices, resulted in a ruling in favor of the employee, for summary judgment purposes.
The result may have been different had the employer been able to show that it notified the employee orally for the need for recertification pursuant to the decision of the U. S. Court of Appeals for the Sixth Circuit’s in Graham v. BlueCross BlueShield of Tennessee (No. 12-5309, April 3, 2013, 6th Cir.) That case, also an FMLA “recertification case”, turned on facts which revealed, through the employee’s deposition, that she was told her initial medical certification was inadequate and that she had subsequent conversations with her supervisors inquiring as to whether she had obtained appropriate information from her doctors.
It seems clear that the Courts in Gardner and Graham want an employer to provide some proof that notice was actually received by the employee or that the employee was sufficiently on notice as to the Act’s requirements to compel the employee’s attention to notices which might pertain to recertification. As most attorneys and human resource personnel are aware, there is no substitute, at present, for an acknowledgment by a notice recipient of notice sent to him or her, by hand delivery against a receipt or some type of signature-required postal mail.
Having read these cases one would assume that logging into one’s Facebook® page would be insufficient to provide actual notice. But in In the Matter of a Support Proceeding, Noel B, Petitioner v. Anna Maria A. (Sept. 12, 2014, NY Richmond County Family Court) a New York Family Court allowed service of process in a child support modification matter via Facebook® when it was claimed that personal service “was not practical”.
In the Noel B. case, attempts at ordinary means of service on the respondent had failed. The petitioner was unable to locate the respondent. When the petitioner presented evidence of the respondent’s “active social media account on Facebook” and that service by ordinary means proved “impractical”, the Court permitted service by Facebook® by “messaging” notice to the respondent with the traditional means of mailing notice to the respondent’s last known address. The Court felt that the “best chance” for actual notice to the respondent.
The focus in the electronic delivery of notice cases is proving receipt and reading. Bearing in mind that electronic delivery is still an alternative means of service, one might wonder if electronic communication is less worthy than the traditional alternatives of “courthouse door” posting or publication in a somewhat obscure local newspaper. Neither of those means of service or notice seem to be more reliable than messaging or posting. While certified mail might prove receipt by someone living at a location, unless the item is restricted to the addressee that means of delivery does not guarantee that the item was actually received and/or read by the addressee.
Florida now permits service by e-mail, but only in those instances in which the rules mandate that one or more email addresses be provided, such as in the case of attorneys representing parties to the matter, or upon those parties who may be unrepresented but designate an email address with the court. The Florida rules do not address email service, either alone or in combination with some other method, in those situations in which service upon a respondent has proven impossible or “impractical”.
The issue of service of process or notice by electronic means has not been fully addressed in Maryland. However, in Griffin v. State of Maryland (419 Md. 343, 19 A.2d 414 (2011)) the Maryland Court of Appeals held that the State had failed to properly “authenticate” a MySpace® page it sought to introduce into evidence. The Court cited the general unreliability of showing that the person against whom the evidence is sought to be used actually created the electronic “page”. The Court could apply a similar view in the notice or service of process cases.
The cases seem to indicate that this discussion and debate over the use of electronic and “social media” resources to notify or serve process upon those affected will continue to be played out in the courts and in rules committees. Until then, caution should be used in opening unplanned electronic communications because the recipient of an email or social media message may be subjecting themselves to the jurisdiction of a court.
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