Consultants, attorneys, and insurance company's who advise employer's regarding employee's requests for FMLA leave are not "employers" within the meaning of the FMLA subject to civil suit for money damages.
The ability of an employee to sue an outside company for allegedly giving erroneous FMLA advice was addressed by the court in Jensen v. AT&T and Metropolitan Life Ins. Co., No. 4:06-CV-842 (CEJ), 2007 U.S. Dist. LEXIS 83960 (E.D. Mo. Nov. 13, 2007). In that case, Jensen was terminated by AT&T, her employer, on the advice of a representative of MetLife following the use of FMLA leave and disability leave. MetLife recommended termination based on the belief that Jensen's disability rendered her unable to perform her work duties notwithstanding a physician's release allowing her to return to work.
Jensen sued AT&T and MetLife alleging that her termination was in retaliation for her prior use of FMLA leave. Jensen argued that MetLife improperly advised AT&T to terminate her employment because she exercised FMLA rights. MetLife moved to dismiss the FMLA claim arguing that it was not an "employer" within the meaning of the FMLA and, therefore, could not be sued under that law.
Applying the "economic realities test" of the Fair Labor Standards Act, to establish that MetLife was an FMLA-covered employer an employee must allege that the MetLife had some direct power over her employment. Citing a number of cases involving health insurers and attorneys, the court concluded that Jensen had failed to allege that MetLife exercised direct power over her employment by advising AT&T to terminate her.
Comment: Consultants, attorneys, and others who advise an employer regarding FMLA rights lack the requisite direct control over an employee's employment to be considered an FMLA-covered "employer." The FMLA only permits an aggrieved employee to sue an "employer" for FMLA violations. Note that organizations that take over complete control of another employer's FMLA administration decisions, such as a PEO, run the considerable risk of being found to be an FMLA-covered employer subject to suit for monetary damages.
Of course, just because suit is not available under the FMLA against an outside consultant does not mean that an employee has no other recourse. An employee may be able to sue the outside consultant under a tort or contract theory for their erroneous FMLA advice. Depending on the terms of the contract, an employer may also be able to seek damages against the consultant for bad FMLA advice.
An upside to using outside FMLA consultants is that it may insulate the employer from double damages for a so-called willful violation. Courts have found that an employer does not willfully violate the FMLA when they make a reasonable effort to determine their FMLA obligations, including seeking advice from outside professionals.