Personal Liability for Violations of the Family and Medical Leave Act
 
May 1, 1999
 

Managers and directors have escaped the risk of personal liability for violations of the anti-discrimination laws contained in Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). However, the number of courts willing to hold managers and directors individually liable for violations of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) is on the rise. A recent decision of the Eleventh Circuit Court of Appeals hints that it may follow this trend.

The difference in supervisor liability for violations of federally protected employee rights stems from the differing definitions of the term "employer" found in the anti-discrimination laws, the FMLA and FLSA. Title VII, the ADEA and the ADA define "employer" as a person engaged in an industry affecting commerce who has a certain number of employees and any agent of such a person. The FMLA and FLSA define "employer" more expansively, also to include any person who acts, directly or indirectly, in the interest of an employer. This broader definition in the FMLA and FLSA has been used by courts across the nation as a basis for holding managers and directors personally liable for conduct in violation of those statutes.

In March of this year, for the first time, the Eleventh Circuit addressed the meaning of "employer" under the FMLA. In Wascura v. Carver, (11th Cir. 1999), the Eleventh Circuit, which has binding authority over Florida and Georgia cases, held that various city officials were not liable in their individual capacities for a former city employee's FMLA claim because public officials did not fall within the FMLA's definition of "employer." In dicta, however, the court referred to case law involving a private employer and recognized that, in that instance, a supervisor can be an "employer" under the FMLA and may therefore be held liable under that statute.

The circumstances under which a manager or director may be held personally liable for FMLA violations remain uncertain, although case law lends some guidance in this area. Courts have held that a manager or director may have individual FMLA liability even though he or she does not control all of the day-to-day affairs of the employee, if the manager or director controls the aspect of employment impacted by the FMLA violation. For example, in Johnson v. A.P. Products, Ltd., (S.D.N.Y. 1996), a New York trial court held that a human resources manager, who terminated an employee but did not exercise control over the employee's ability to take leave or the reasons for the employee's termination, was not held personally liable. In contrast, a Massachusetts trial court held in Meara v. Bennett (D. Mass. 1998) that a supervisor was individually liable when the supervisor granted an employee, who had been placed on administrative leave due to illness, permission to return to work once he was cleared medically. When the employee tried to return to work two months later, the supervisor told the employee to resign and later terminated the employer's position. Unlike the human resources manager in Johnson, the supervisor in Meara exercised some control over the employee's termination and the employee's ability to take leave and, thus, was found personally liable.

The precise circumstances under which personal liability may be imposed on managers or directors are not clear and have not yet been addressed by the Eleventh Circuit. Managers and directors should be aware, however, that supervisors in other jurisdictions have been found individually liable for FMLA violations.

For more information please call Patricia Nance at 1-888-688-8500.

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