The Family and Medical Leave Act (“FMLA”) has been on the books for many years, yet it still remains one of the most troublesome of all Federal laws for employers to comply with.

To administer the FMLA, HR personnel must go through a process where they first are required to continually determine which employees meet the Act’s hour-based definition of a covered employee, and then determine when those employees (or their parents, spouses or children) have an illness, injury, impairment or physical or mental condition which meets the definition of a serious health condition.  All of this must be done, by the way, without seeking so much information that it runs afoul of the Americans with Disabilities Act and other similar state legislation.

Making these determinations, generating the required paperwork, getting it returned and reviewing it in a timely fashion so the employer’s attendance and disciplinary polices can be uniformly applied, consistent with the dictates of the FMLA, is difficult for even experienced HR professionals. That means it is nigh impossible for supervisors, whose primary function is to keep the operation running smoothly and the employer’s product or service on the way to customers.

The FMLA, of course, holds employers responsible for compliance with the Act, but potential liability under the statute doesn’t just stop there.  Unlike violations of Title VII, the ADA, and the ADEA where there can be no individual liability, the FMLA also imposes financial liability on individuals who meet its definition of employer.  That definition includes “any person who acts… in the interest of any employer to any of the employees of such employer,” and the Department of Labor’s implementing regulation further defines such employer by reference to the Fair Labor Standards Act, saying that corporate officers acting in the interest of an employer are individually liable, in addition to the corporation, for any violation of the FMLA.

Recently, the Third Circuit Court of Appeals – which reviews decisions of federal district courts in Pennsylvania, Delaware, and New Jersey – adopted a sweeping application of liability for FMLA violations.  In Haybarger v. Lawrence County Adult Probation & Parole, 667 F.3d 408 (3d Cir. 2012), the Court held that a second line supervisor who was two steps below the decision maker could be subject to individual liability for violation of the FMLA. 

In the case, the second line supervisor expressed dissatisfaction with the employee’s attendance record despite recognizing that the absences were due to illness, commented in the employee’s performance reviews that the employee needed to improve her overall health and reduce her absenteeism, asked why the employee breathed heavily and needed to visit the doctor so often, and stated that the employee needed to take better care of herself. This supervisor also disciplined the employee by placing her on probation for her “work ethic” and recommended the employee’s termination (since he did not have the authority to actually make the decision).  Thereafter, the employee was indeed fired.  Perhaps not surprisingly, she sued, claiming violation of the FMLA and a host of other laws.

In issuing its decision, the Court rejected a higher standard – the authority to hire or fire – to hold a superior personally responsible for FMLA violations.  Rather, the Court looked to the similarity of the Fair Labor Standards Act’s definition of employer and held that both the FMLA and FLSA contemplate the possibility of several simultaneous employers, both of which may be liable for violation of an individual’s FMLA rights.

Thus, any supervisor in Pennsylvania (and Delaware or New Jersey) who acts as an agent for their employer may be personally liable for violations of the FMLA, even if the superior does not have ultimate authority over the employment practice(s) which is the subject of the employee’s lawsuit.  Specifically, an individual supervisor will be considered to have sufficient authority over the protected employee if the supervisor independently exercises control over the work environment, based on the totality of the circumstances. While no one factor is dispositive in this determination, the most important factors involved focus on the economic reality of the relationship, including whether the supervisor had the power to hire or fire the employee, supervise or control of the employee’s work schedule or conditions of employment, determine the rate and method of pay, or maintain employment records. In analyzing these factors, it is irrelevant that the superior may not be engaged in a continuous monitoring of the employee, or that his or her decision may be subject to approval by a higher authority.

One would be hard pressed to find a true supervisor – as opposed to a group leader or other type of straw boss – who does not meet this broad and liberal definition of exercising control over an employee’s work. What type of supervisor would not express dissatisfaction with unacceptable attendance, regardless of reason?  What type of supervisor wouldn’t specify in a performance review areas, including attendance, which need improvement and encourage an employee with a health related attendance problem to address the issues affecting his inability to meet acceptable attendance standards?  Moreover, most supervisors – by definition – set employee work schedules and maintain employment records.  Since each of these types of activities will render a supervisor an employer and therefore, personally liable for violation of the FMLA, supervisors within the Third Circuit now have even more headaches to worry about.

Most supervisors would probably say that properly addressing the issue most central to any individual’s ability to acceptably perform the job – consistent attendance – has always been a challenge for them.  After the Haybarger case, the old saying that “half the battle is merely getting them regularly to come to work” is no longer true.

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law. Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission.
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