By Alan E. Seneczko, Esq.
You go to work. Agonize over the
interpretation of the FMLA. Make a tough decision. Frustrating, for sure,
but at the end of the day, do you expect to be sued individually for the
decision you made? On March 17, 2016, the Second Circuit Court of Appeals said
you can.
In Graziadio v. Culinary Inst. of Am., an HR Director became embroiled
in a dispute with an employee over the sufficiency of her medical certification
and continued absence to care for her two ailing sons, eventually terminating her
employment. The employee then sued both the company and the HR Director
personally for interfering with her FMLA rights, and the Second Circuit allowed
the claim against the HR Director to proceed.
Under the FMLA, an individual may
be held liable if she qualifies as an “employer,” which is defined as
encompassing “any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer.” (Apparently, the fact
that the employer must also employ 50 employees is meaningless.) To determine
whether an individual meets this test, the courts have applied the “economic
reality” test utilized under the Fair Labor Standards Act. Under that test, a number
of factors are considered to examine the extent to which the individual
possessed the power to control the work in question, including whether she 1)
had the power to hire and fire; 2) supervise and control work schedules and
conditions of employment; 3) determine rate and method of pay; and, 4) maintain
employment records.
Applying these factors, the court
found that while HR Director did not make the final decision to discharge the
employee, she played an important role in it and conducted the investigation.
Another important consideration was the fact that she controlled the employee’s
rights under the FMLA. Evidence of the other two factors was not as strong, but
the court still determined that enough evidence existed for a jury to find that
the director exercised enough control over the worker’s employment to subject
her to individual liability.
Although the U.S. Supreme Court and
Seventh Circuit (which governs Wisconsin, Illinois and Indiana) have not
directly addressed this issue, some federal courts in the Northern District of
Illinois have, finding that individuals can be held liable under the FMLA (using a slightly different test). Assuming this trend continues, it is difficult
to fathom how an HR director (or someone similarly situated) can avoid a
finding that she has the power to control an employee’s work (and the various
factors), since someone has to do it.
After all, decisions are not made by machines.
At the end of the day, what is still most important is that
any individual responsible for administering the FMLA have a good, working
understanding of the law and its many difficult and frustrating nuances, and
avoid the prospect of ever being found liable for having violated it.
Want more information about the FMLA, intermittent leave and
medical certifications? Be sure to attend “10: A Day of Lists,” where Attorney Seneczko will be addressing this issue.
Questions? Please
contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com.
