HR executives who engaged in a forensic search of an employee's computer to find evidence (forwarding an e-mail to another employee) to fire an injured employee two weeks after the employee requested FMLA leave were sufficiently involved with the firing decision to render them individually liable for violation of the FMLA leave.
Until his termination, Dimitry Narodestsky had been employed by Cardone Industries for 12 years. A few weeks before his termination he was diagnosed with a leg injury requiring surgery. Narodetsky's wife contacted Cardone's manager of health benefits to request time off and disability benefits for her husband for the operation. The next day, members of the human resources department searched Narodetsky's computer. Narodetsky claimed that the search was conducted to find a reason to fire him thereby negating his need for leave. Discussion continued regarding the timing of the scheduled surgery to minimize disruption to Cardone. A few weeks after the initial request Narodetsky was called into a meeting attended by three members of the Cardone HR Department, wherein Narodetsky's employment was terminated for forwarding an e-mail to another employee in violation of company policy.
Narodetsky sued Cardone and the three individuals, including the human resource manager, a human resource representative, the CEO, and the manager of health benefits, for allegedly interfering with his FMLA rights and retaliating against him after he provided notice of his need for FMLA leave. Cardone and the individually named HR managers moved for summary judgment to dismiss the claims against the individual managers.
In rejecting the summary judgment motion, the district court initially noted that the FMLA allows an aggrieved individual to file a civil suit for money damages against an "employer." The FMLA defines an "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any employees of such employer." 29 USC 26114(A)(ii)(i). The DOL regulations extend individually liability for FMLA violations to "corporate officers acting in the interest of an employer," as that term has been interpreted by the Fair Labor Standards Act. 29 CFR 825.104(d). After noting that the Third Circuit had not definitively ruled on the issue, the court cited cases within the Circuit that had found individual liability under the FMLA and FLSA where the individual exercised sufficient control of the terms and conditions of employment, including the authority to fire an employee.
The court found that the individually-named managers had exercised sufficient control over the decision to terminate Narodetsky. With respect to the three human resource professionals, the court inferred that they had the authority to fire Narodetsky based on their presence at the meeting where he was terminated. The court also noted some of their involvement in the forensic search of Narodetsky's computer.
Narodetsky v. Cardone Industries, Inc., et. al., No. 09-4734 (E.D. Pa. Feb. 24, 2010)
Comment: The decision is consistent with many others around the country that have found that HR managers may be individually liable for violations of the FMLA where they have been involved in the decision to fire the plaintiff-employee. The prospect of individual supervisor liability in addition to employer liability greatly increases the cost and exposure of FMLA litigation. The employer may need to hire separate counsel to represent the individually-named managers. Settlements will need to cover the employer and the individual managers. Individual managers will want to confirm that the employer's insurance liability coverage will pay for separate legal counsel and any adverse judgment that may be rendered against the manager. Absent such coverage, managers may be exposed to hundreds of thousands of dollars of legal fees and adverse judgments for FMLA violations, even if the violation was unintentional.
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