In Modica v. Taylor, No. 05-50075, 2006 U.S.App. LEXIS 23372 (5th Cir. Sept. 13, 2006), the Fifth Circuit found that an employee of the Texas Cosmetology Commission could file a civil suit against the director of the Commission for violation of the FMLA. In so finding the court determined that the Commission director, a public official, was an “employer” within the meaning of the FMLA. The court came to that conclusion based on its reading of the statue and DOL regulations. Critically an employer is defined as “any person who acts, directly or indirectly, in the interest of an employer.” It also includes public agencies as employers. The court reviewed the prevailing split in the circuit courts on public official individual liability for FMLA violations. The court noted that the Sixth and Eleventh Circuits declined to recognize individual public official liability for FMLA violations based, in part, on its determination that the individual liability provision was separate and distinct from the public agency provisions defining an FMLA-covered “employer.” The Fifth Circuit, however, joined the Eighth Circuit to find Congress, in drafting the FMLA, chose to make the definition of “employer” materially identical to that in the FLSA,” and it is well established that the FLSA permits public employers to be held individually liable.
Having found that the FMLA permits suit against individual public sector officials, the court went on to find that the Commission director was entitled to qualified immunity from personal liability for discharging Modica because the law on this issue was not clearly established in 2003. As support, the court cited the same split of authority regarding public employee individual liability for FMLA violations.
Comment: The circuits are split on individual public supervisor liability for violation of Title I of the FMLA. Title II does not permit civil suit so there is no individual liability under that federal sector FMLA variant. Employees of Congress and the Executive Office of the President are also not entitled to sue individual supervisors or managers for FMLA violations as the CAA and the PEOAA does not define an FMLA-covered employer to include “any person who acts, directly or indirectly, in the interest of an employer.” Federal agencies with Title I employees should consult with counsel to determine whether managers or supervisors may be personally liable for violating a Title I employees FMLA rights. The Fifth Circuit covers Texas, Louisiana, and Mississippi.