Individual Liability for Supervisors under the FMLA, Says the Third Circuit

by Proskauer Rose LLP
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In Haybarger v. Lawrence County Adult Prob. & Parole, No. 10-3916, 2012 WL 265996 (3d Cir. Jan. 31, 2012), the United States Court of Appeals for the Third Circuit recognized, for the first time, that a supervisor of a private employer may be held individually liable for violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.

Background

Plaintiff, Debra Haybarger, worked as an office manager for the defendant, Lawrence County Adult Probation and Parole. During the course of her employment with the public agency, a combination of Type II diabetes, heart disease, and kidney problems "forced her to miss work frequently to seek medical attention."

Plaintiff contended that her supervisor repeatedly "expressed dissatisfaction with her absences," which he noted in her annual performance evaluations and in conversations. Six months following the supervisor's decision to discipline Plaintiff for her "conduct, work ethic, and behavior," Plaintiff's employment was terminated.

Plaintiff filed suit alleging, inter alia, violation of the FMLA, including suing the supervisor in his individual capacity.

Legal Analysis

The United States District Court for the District of New Jersey held, inter alia, that although the FMLA permits individual liability against supervisors at a public agency, Plaintiff here did not proffer sufficient evidence on summary judgment to prove that her supervisor had sufficient control over her employment for individual liability to result. Plaintiff appealed to the Third Circuit, contending that a genuine dispute of material fact remained on whether the supervisor was her "employer" under the FMLA. In vacating and remanding to the District of New Jersey, the Third Circuit held that the FMLA permits individual liability for supervisors at public agencies and private employers.

In reaching this broader holding, the Third Circuit looked to the text of the statute – which covers "any person who acts, directly or indirectly, in the interest of an employer" (29 U.S.C. § 2611(4)(A)(ii)(I)) – and concluded "that liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff's employer." The Third Circuit also analyzed the U.S. Department of Labor's implementing regulations, which state that employers "include any person acting, directly or indirectly, in the interest of a covered employer to any of the employees of the employer, any successor in interest of a covered employer, and any public agency." 29 C.F.R. § 825.104(a). The Third Circuit also noted that the regulations provide that "individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of the FMLA." 29 C.F.R. § 825.104(d).

Additionally, the Third Circuit likened the jurisprudence of individual liability under the FMLA to that of the Fair Labor Standards Act ("FLSA"). It cited to Modica v. Taylor, which held "that Congress, in drafting the FMLA, chose to make the definition of 'employer' materially identical to that in the FLSA means that decisions interpreting the FLSA offer the best guidance for construing the term 'employer' as it is used in the FMLA." 465 F.3d 174, 186 (5th Cir. 2006) (quoting Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999)).

The Third Circuit rejected the approach embraced by several other district courts for determining individual liability – namely, by applying Title VII's individual liability standard to the FMLA. See, e.g., Frizzell v. Sw. Motor Freight, 906 F. Supp. 441, 449 (E.D. Tenn. 1995), aff'd in part, rev'd in part on other grounds, 154 F.3d 641 (6th Cir. 1998); Carter v. Rental Unif. Serv. of Culpeper, Inc., 977 F. Supp. 753, 759 (W.D. Va. 1997) (Title VII defines an "employer" as "a person engaged in an industry affecting commerce . . . and any agent of such a person."). 42 U.S.C. § 2000e(b). In making this determination, the Third Circuit found that "Title VII's definition of an employer is much narrower than the FMLA's and the FLSA's definition of an employer," and, therefore, is not "a persuasive source of authority."

Takeaway

Haybarger settles the question in the Third Circuit as to whether the FMLA allows for individual liability for supervisors in private employment. Accordingly, private employers must prepare for the increased prospect of litigation in which supervisors are named as defendants in their individual capacity. As Haybarger's own reversal of the lower court evidences, however, determining what types of supervisory personnel qualify for individual liability is a nuanced, fact-intensive inquiry.

Employers should note that, in making this inquiry, the Third Circuit analyzed the "economic reality" of the employment situation – as most courts do – "examining whether the individual supervisor carried out the functions of an employer with respect to the employee." The Third Circuit stressed that "whether a person functions as an employer depends on the totality of the circumstances," not "technical concepts of the employment relationship."

The Third Circuit cited to the Second Circuit's "relevant factors" in ascertaining the "economic reality," including whether the individual "(1) had the power to hire and fire the employee, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." See Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). The Third Circuit noted, however, that the Second Circuit "cautioned" courts to consider "any relevant evidence," as "no one of the four factors standing alone is dispostive."

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Authors for this alert: John P. Barry, Jeremy M. Brown and Daniel L. Saperstein.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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