By Eric B. Meyer
In this case of first impression in the Third U.S. Circuit Court of Appeals in Philadelphia, which covers Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands, the court ruled that a supervisor in a public agency may be subject to personal liability under the Family and Medical Leave Act.
The court further emphasized that there is “no reason to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned.”
The court also emphasized that Congress intended to include individuals with the scope of the FMLA definition of “employer”:
[The] inclusion of “any person who acts, directly or indirectly, in the interest of an employer” [within the text of the FMLA] plainly contemplates that liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff?s “employer.”
Supervisors can be personally liable
The court further noted that the Department of Labor‘s implementing regulations for the FMLA confirm that the FMLA permits individual liability:
The regulations state that individuals such as corporate officers acting in the interest of an employer are individually liable for any violations of the requirements of FMLA.”
Therefore, even though a supervisor may not have ultimate authority over employment practices, supervisors do act as agents for their employers. Thus, while a higher decision maker may make the ultimate call on an employee, that does not relieve lower decision makers, such as supervisors, from liability.
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So, local managers and supervisors in both the public and private sectors — note: the Third Circuit rule does not apply across the country — if you think that the worst thing that could happen to you for retaliating against an employee who takes FMLA is for you to lose your job, you better think again.
Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.