What an interesting and challenging time to be a human resources professional. There are the day-to-day challenges such as dealing with management needs, trying to support employee morale, keeping an eye on policy enforcement, legal compliance and workplace investigations. The list goes on. The U.S. Court of Appeals for the 2nd Circuit recently added one more challenge. The Court held that a human resources professional can be held personally liable for her company’s FMLA violations.
The Culinary Institute of America questioned the validity of an employee’s medical support for FMLA time off. In the ensuing communication between company and employee, the company’s director of human resources maintained that the employee’s documentation was not sufficient. The company eventually established a deadline for submitting proper documentation and when the employee did not respond, terminated her for job abandonment. The employee sued the company and the Director of Human Resources for alleged FMLA and Americans with Disabilities Act (ADA) violations.
In the lower court, the federal district judge dismissed all of the claims. The judge concluded the director of human resources was not liable as an “employer” under FMLA because she lacked the “power to hire and fire” and she did not supervise the employee. On appeal, the 2nd Circuit dismissed the ADA claims but allowed the FMLA claims to go forward, including the claim against the director of human resources. The case is Graziado v. Culinary Institute of America and can be found here.
The 2nd Circuit court applied a more broad definition of “employer” than that used by the lower court. Under the FMLA, an “employer” is one who “acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” Because the FMLA was originally adopted as an amendment to the Fair Labor Standards Act (FLSA), the 2nd Circuit looked to decisions applying the definition of employer under the FLSA. The Court ruled that the definition of employer is not controlled simply by the right to hire, fire or supervise. The Court applied an “economic realities” test, concluding employer status can also be shown by the authority to control the employee in question, including authority to control his or her rights under the FMLA. Turning to the facts of the case, the Court ruled that there was sufficient evidence that the director of human resources played at least a role in the decision to terminate, even if she did not control that decision, and that she played a significant role in determining the employee’s rights under the FMLA. The case will now go to trial on the FMLA violations and the question of whether the director of human resources should be held personally liable under the FMLA.
The possibility of claims against individual supervisors is not a new one to Ohio employers. Individual supervisors can be held liable for employment discrimination claims under Ohio Revised Code §4112. There is also precedent for individual managers who control wage decisions being held liable for wage hour violations under the FLSA. It has been far less common for human resource professionals to be held individually liable for employment claims. The possibility of individual liability under the FMLA is particularly concerning when one considers that FMLA compliance is among the more thorny challenges for human resources professionals. All of this is one more reason for particular caution in FMLA decisions, especially those relating to discharge.