Remember No Intent Necessary!
Supervisors are in the dark. Many supervisors have no idea that they can be held personally liable for violating the Family Medical Leave Act (FMLA) even if their actions are not intentional. This needs to change.
No Intent Needed
In order to aver a claim of interference, an employee must show that the employer interfered with his/her FMLA right to a medical leave, regardless of the employer's intent Consequently, interference can also occur when an employer simply chills an employee's desire to take FMLA leave. Employers need to keep in mind this claim is NOT about discrimination, and therefore, cannot substantiate their actions by establishing a legitimate business purpose for their decisions.
Supervisor's Individual Liability
The FMLA's definition of "employer" casts a net that extends liability beyond the company to individual supervisors. The Department of Labor's (DOL) regulations explicitly provides that "individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirement of FMLA." 29 C.F.R. §825.104(d). The courts also agree that individual liability applies to private employers. The Fifth, Eight, and most recently, Third Circuits have determined that there is no distinction between public agencies and private employers as far as individual liability. Modica v. Taylor, 465 F.3d 174, 184 (5th Cir. 2006); Darby v. Batch, 287 F3d 673, 681 (8th Cir. 2002); Haybarger v. Lawrence County Adult Probation and Parole, 667 F3d 408 (3d Cir. 2012). However, the Sixth and Eleventh Circuits do not agree. This issue should be added to your SCOTUS watch list.
Giving Supervisors a Fighting Chance
Many employers place the responsibility of complying with the FMLA in the hands of their HR departments. Consequently, the supervisors are not mindful of what they need to personally do to comply with the FMLA. This leaves supervisors vulnerable to liability because a supervisor is most likely the first person the employee will notify about a need for a medical leave of absence.
In order to prevent unintentional interference, employers need to take the time to school their supervisors about the employer's and the employee's obligations under the FMLA, and explain that ultimately it is the law that must be followed not the employee handbook. Otherwise, the supervisor could unknowingly commit interference, and ignorance is not a defense. For example, if the employee handbook requires an employee to provide a formal written request for FMLA leave, but the employee provides verbal notice to the supervisor, and the supervisor fails to act upon the employee's verbal notice, this could constitute interference and could result in individual liability. If the handbook requires the employee to inform HR that s/he needs a medical leave of absence, but the employee notifies the supervisor instead, and the supervisor does nothing, this could also constitute interference, and the supervisor could be held individually liable.
In order for a supervisor to have a fighting chance at avoiding interfering with an employee's right to take FMLA leave, training is required. Some basic components of the FMLA a supervisor should know:
- An employee does not have to request FMLA leave in writing;
- An employee does not have to specify that s/he seeks FMLA leave;
- If the leave was forseeable, the employee must notify the employer at least 30 days before the leave is to begin;
- If the leave was not forseeable, the employee must notify the employer as soon as practicable after the employee learned about the need for a leave;
- Employee does not have to provide the exact dates or duration of the leave request;
- Employer needs to provide the employee a written notice detailing the specific expectations and obligations of the employee, and explain any consequence for failure to meet these obligations.
More employees are starting to exercise their right to sue individual supervisors. The damages from a violation of the FMLA can add up quickly. So employers should do their supervisors a favor and properly educate them about their responsibilities under the FMLA.
Tiffanie Benfer, Hardwick Collier LLC