A recent decision offers a not-so-friendly reminder to HR professionals and supervisory employees: you can be individually liable for FMLA violations if you review, approve, and correspond with employees regarding their FMLA leave.

The case involved a former payroll administrator who claimed that her employment with a culinary institute was unlawfully terminated after she took leave to provide medical care for her two sons. In Graziado v. Culinary Institute of America the Second Circuit Court of Appeals reversed a judgment for the employer and held there was enough evidence that the HR Director controlled the employee’s FMLA leave rights that the employee’s claim against the HR Director could proceed. In so holding, the Second Circuit (covering New York, Connecticut and Vermont) for the first time joined several other federal appellate circuits to adopt, for FMLA purposes, the expansive definition of “employer” put forth by the federal Fair Labor Standards Act.

Following this decision, a supervisor may be individually liable for FMLA violations where he or she “controls” – in whole or in part – an employee’s FMLA rights. The court said that whether a supervisor has such control is governed by the “economic realities” test. Specifically, did the individual:

  1. have the power to hire and fire the employee?;
  2. supervise and control the employee’s schedule?;
  3. determine the rate and method of payment to the employee?; and
  4. maintain employment records?

In Graziadio, the Director of HR was liable as an “employer” because she reviewed Graziadio’s FMLA paperwork and determined its adequacy; exercised exclusive control over Graziadio’s schedule and her return from FMLA leave; sent Graziado communications regarding her leave; and played an important role in Graziado’s termination.

Given the apparent trend toward expanding individual liability under the FMLA, HR professionals and supervisory employees would be wise to ensure that when reviewing, approving, and communicating with employees regarding leave, they are fully cognizant of the consequences – perhaps even the consequences to them personally – for decisions that may be seen as abridging FMLA rights.