The FMLA Blog

Involvement in Termination Decision Exposes HR Manager and Supervisor to Individual Liability for Violation of the FMLA

The employee in Spagnoli v. Brown & Brown Metro, Inc., No. 06-414 (FLW), 2007 U.S. Dist. LEXIS 59698 (D.N.J. Aug. 15, 2007)(not for publication) sued the human resource manager and line supervisor for violation of the FMLA when it terminated her employment while she was on leave.  The defendants moved to dismiss the action against these individuals alleging that they lacked the requisite control over the employee's FMLA leave to be liable.  The HR manager and supervisor, the defendants argued, did not exercise managerial authority over Spagnoli. Nor did they play any role in the decision whether plaintiff would be granted FMLA leave (she was) or in the reorganization of her department. 

Rejecting the motion to dismiss, the court found that there were material issues of fact in dispute surrounding the involvement of these defendants in plaintiff's FMLA leave and the decision to terminate her.  Both supervisors were involved in an on-going e-mail exchange that anticipated Spagnoli's termination in the event that she were to exceed the 12 weeks of FMLA leave.  The kicker in the case is that the employer did not inform the employee when her 12 weeks of FMLA leave would be up. Rather, the employer sat back and made positive statements to the employee about her continued absence from work and planned return after the expiration of her 12 weeks of FMLA leave while at the same time plotting her termination.  The court was unimpressed with this behavior. 

Comment:  In the private sector, individual managers and supervisors may be liable for violation of the FMLA.  To be liable, the manager or supervisor must have some involvement in the FMLA leave or adverse action decision at issue, even if that involvement falls short of being the actual decision maker.  Given that defense and liability costs involved (that can run to seven figures), managers and supervisors need to know their FMLA rights and responsibilities.  They also need to know whether the company will pay their defense (legal) costs and/or reimburse them in the event of an adverse judgment.  This is not an area where a manager or employer wants to learn after they have been sued that the company will not pay their defense costs (which can easily run to $ 100K) or an adverse judgment that may run to a million dollars or more. 

Immediate Supervisor May Be Individually Sued for FMLA Violations

In Mueller v. J.P. Morgan Chase & Co., No. 1:05 CV 560, 2007 U.S. Dist. LEXIS 20828 (N.D.Ohio March 23, 2007), the Court found that the plaintiff's immediate supervisor was an "employer" within the meaning of the FMLA who could be sued because he exercised control over initiating the FMLA paperwork and conducting her performance review. 

Plaintiff alleged that Torres, her supervisor, interfered with her FMLA rights by failing to timely initiate her FMLA paperwork.  She also alleged that Torres took into account FMLA absences when he gave her a poor performance review.  Torres was not, however, responsible for Plaintiff's subsequent termination.

The employer argued that Torres was not not an FMLA "employer" who could be sued because he was not responsible, beyond ministerial tasks, to administer the FMLA, and he was not responsible for terminating plaintiff. The Court disagreed. The Court initially noted that individual liability is clear where the supervisor is a member of the Human Resources department; was responsible for the employer's FMLA compliance; or actually terminated the employee.  The Court held that liability for FMLA violations is not, however, limited to these situations.  Rather, all that is needed for FMLA liability is that the individual supervisor possess some control over the aspect of employment alleged to have been violated.

Here, the Court found that Torres possessed sufficient control over initiating the plaintiff's FMLA paperwork and conducting her performance review to be considered an "employer" for FMLA purposes. As an FMLA "employer," Torres could be sued for FMLA violations.

Comment:  Under the FMLA, an employer is "any person who acts, directly or indirectly, in the interest of an employer to any of the employee's of such employer."  29 USC 2611(4)(A)(ii)(I).  Here, the Court indicates that any person, including an employee's immediate supervisor, who has any control or involvement with the practice that allegedly violates the FMLA acts in the interest of the employer within the meaning of the FMLA and, therefore, may be individually liable for FMLA violations

Employers need to audit their leave practices to determine who is exposed to individual liability for FMLA violations.  To avoid costly litigation, employers must train all managers and supervisors involved with leave administration, even if it is just to provide FMLA leave forms to the employee, regarding the requirements of the FMLA.  Similarly, all managers and supervisors involved with performance reviews and/or discipline for attendance should be trained on the benefits and protections of the FMLA.  Employers should also review their insurance plans to make sure that individual managers and supervisor are covered for legal expenses and liability in the event of an FMLA violation.      

Courts Split on Individual Liability for Public School Officials

Federal courts in New Jersey and Illinois recently split on the individual liability of public school officials for FMLA violations.  In Hewett v. Willingboro Bd. of Ed., 421 F.Supp. 2d 814 (D.N.J. 2006), the court found that individual public school officials may be liable for FMLA violations.  The court reached that conclusion after examining the FMLA's definition of "employer."  In so holding, the court gave a point-by-point critique of the decision of the Sixth Circuit Mitchell v. Chapman, 343 F.3d 811 (6th Cir. 2003), which found against individual public official liability based on a narrow reading of the FMLA's definition of "employer."   The court observed:

This Court believes that if Congress wanted to shield public officials from liability under the FMLA, it would have done so explicitly; indeed, Congress did so in the FLSA when it excluded from the definition of "employer" "any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization."  29 U.S.C. 203(d)... Congress could have as easily included a provision in Section 2611(4) limiting the liability to public agencies to the agencies themselves.  Congress chose not to do so, and this Court is not prepared to read into the statute that effect.

The court in Lombardi v. Bd. of Trustees Hinsdale School District 86, No. 06 C 3683, 2006 U.S. Dist. LEXIS 86955 (N.D.Ill. Nov. 29, 2006), came to a different conclusion based on the special provisions applicable to local educational agencies.  The court initially found that the FMLA applies to local school districts.  However, it noted that the statue separately defines "employer" for purposes of any local educational agency.  Under the statute (29 USC 2618(a)(2)), a local educational agency is defined by cross reference to another statute (29 U.S. C 7801(26)).  That definition does not include any reference to an individual acting on behalf of an employer.  Accordingly, the court concluded that "Congress intended [section] 2618 to control FMLA suits involving local school districts." Pursuant to the narrow definition of an "employer" under that section, employee suits for violation of the FMLA involving a local school district may not be brought against individual public school officials.  They may only be brought against the public board of education or other public authority with administrative control over the school.

Comment:  The Hewitt case has broad application to all New Jersey public agency officials, not just school officials.  The Lombardi case is applicable to Illinois public school officials only. Collectively, the decisions represent a further split on the issue of public official individual liability for FMLA violations. 

Public Officials Can't Be Sued in their Individual Capacity for FMLA Violations

In Garber v. Village of Oak Harbor, et. al., No. 3:05CV7004, 2006 U.S. Dist. LEXIS 82394 (N.D.Ohio Nov. 9, 2006), the court dismissed the plaintiff's (a former public employee of the Village of Oak Harbor) claim against his supervisor because, in the Sixth Circuit, employees of public agencies cannot be sued in their private capacities under the FMLA because they are not an "employer" within the meaning of the FMLA. 

Comment:   Courts are split on individual supervisor liability for FMLA violations in the public sector.  The split is largely based on a technical reading of the FMLA definition of "employer."  The FMLA permits an aggrieved employee to file suit only against an "employer."  Like Gerber, some courts have concluded that individual public sector supervisors are not liable for FMLA violations.  Liability runs only to the public sector employer.  Other courts have found in favor of liability for FMLA violations by individual public sector managers and supervisors.  In contrast, individual supervisors in the private sector are unquestionably liable for FMLA violations. The Sixth Circuit covers Tennessee, Kentucky, Ohio, and Michigan.   

Fifth Circuit Finds that Employees May Sue Individual Public Sector Managers for FMLA Violations

In Modica v. Taylor, No. 05-50075, 2006 U.S.App. LEXIS 23372 (5^th 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 official liability for violation of Title I of the FMLA.  Some circuits have found for and against individual public official liability following FLSA precedent.  Others have found or and against liability based on a close textual reading of the FMLA.  Public officials with FMLA administration responsibilities should consult with counsel to determine the status of the law in their State.  Texas, Louisiana, and Mississippi are in the Fifth Circuit.  

Government Officials or Supervisors Cannot Be Held Individually Liable for FMLA Violations

In Gilbert v. Ohio Department of Rehabilitation & Corrections, et. al., No. 2:04-cv-13, 2006 U.S. Dist. LEXIS 13584 (S.D. Ohio March 28, 2006) the court dismissed claims against individually named supervisors for allegedly violating correctional officers FMLA rights.  Citing Sixth Circuit precedent, the court found that governmental officials or supervisors are not “employers” and cannot be held individually liable under the FMLA.

Comment:  The courts are split regarding individual supervisor liability under Title I of the FMLA.  The issue is addressed in Chapters 3 and 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supp.).  Individual supervisor liability does not exist under the other federal sector variants of the FMLA.  Ohio, Kentucky, and Tennessee are in the Sixth Circuit. 

Court Upholds Individual Monetary Liability of Public Sector Officials for FMLA Violation

In Hewett v. Willingboro Bd. of Ed., No. 05-2035, 2006 U.S.Dist. LEXIS 12495 (D.N.J. March 15, 2006), the court found that the Executive director of Human Resources and Administrative Service s and the Superintendent of the Willingboro Public Schools may be individually liable for violations of the FMLA in addition to agency liability. The decision gives a fairly through analysis of the issue.

Comment:  Individual supervisor liability for violation of the FMLA in the private sector is well-established.  The courts are split on individual supervisor liability for FMLA violations in the public sector.  Individual liability means that public officials can be personally sued for monetary damages for their involvement with FMLA violations.  Such liability may be in addition to any liability sought against the public agency itself.