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FMLA & HR Liability

If you work in Human Resources, you should be very familiar with the Family and Medical Leave Act and its accompanying regulations. The FMLA requires covered employers, both private and public, to provide eligible employees with 12 weeks of unpaid leave, along with continued health care benefits and job protection during such leave. However, it is likely that you have never considered whether HR personnel could be personally liable for "employer" violations under the FMLA. Now, as confirmed in the recent Second Circuit decision of Graziadio v. Culinary Institute of America, this fear has become reality and it is possible for HR personnel to be classified as "employers" subject to individual liability under the FMLA. Therefore, you need to be more cautious than ever when determining an employee's rights under the FMLA.

"Employer" Under the FMLA

Under the FMLA, an individual may be held liable only if she is 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." Normally, the definition of "employer" is derived from the Fair Labor Standards Act and is dependent on the "economic realities," such as whether the alleged employer: (1) has the power to hire and fire employees; (2) supervises and controls employee work schedules or conditions of employment; (3) determines the rates and methods of payment; and (4) maintains employment records. Applying these factors in the FMLA context, the essential question is whether the alleged employer controlled in whole or in part plaintiff's rights under the FMLA.

The Decision in Graziadio v. Culinary Institute of America

In Graziadio, an employee of the Culinary Institute of America ("CIA") brought suit against the CIA and two of her supervisors after she was terminated for taking FMLA leave to take care of her two sons. One of these supervisors, Shaynan Garrioch, served as CIA's Director of HR. After considering the facts and applying the economic realities factors, the Second Circuit determined that Garrioch could qualify as an employer for purposes of FMLA liability against her. First, the court concluded that Garrioch demonstrated substantial authority over the Plaintiff's termination. Second, the court found that Garrioch exercised control over Plaintiff's schedule and conditions of employment, at least with respect to the FMLA, because she handled employee return to work issues after FMLA leave and determined any required work accommodations. Finally, the court determined that Garrioch "controlled plaintiff's rights under the FMLA" because the evidence demonstrated that she (a) reviewed Plaintiff's FMLA paperwork; (b) determined its adequacy; (c) controlled Plaintiff's ability to return to work and under what conditions; and (d) sent Plaintiff nearly every communication regarding her leave and employment. Given this evidence, the court held that Garrioch exercised sufficient control over Plaintiff's employment to be subject to individual liability under the FMLA.

Circuit Split Regarding Public Employer Individual Liability Under the FMLA

While it is undisputed that the Second Circuit's decision in Graziadio will have far reaching implications for HR personnel across the nation, the issue of individual liability under the FMLA becomes less clear in the context of public agency employers. Currently, there is a circuit split among the federal circuits regarding individual liability under the FMLA in the public sector. On the one hand, the Eleventh Circuit in Wascura v. Carver, and more recently in Dawkins v. Fulton County Government,has held that public officials in their individual capacities are not employers under the FMLA. These decisions are consistent with the Sixth Circuit's interpretation regarding this issue. On the other hand, the Third, Fifth, and Eighth Circuits do not distinguish between private and public sector employers on this issue and have all held that public officials can be held individually liable under the FMLA. Until the Supreme Court resolves the matter, this split among the federal circuits will undoubtedly create some uncertainty for public employers all over the country, and HR personnel need to be more aware than ever regarding future developments in this area.    

 HR Personnel Beware

In the wake of Graziadio, HR personnel and managers who administer FMLA issues need to be cautious when determining employee rights under the FMLA, or risk being held personally liable. More than ever, it is imperative that you recognize when an employee leave of absence qualifies as FMLA leave and that you administer such leave in strict compliance with the statute and implementing regulations. It is also important to ensure supervisory personnel are properly trained on the basics of the FMLA, such that they know when to involve HR. Human Resources personnel, in turn, are encouraged to stay abreast of the latest legal developments and to seek guidance from legal counsel when handling complex FMLA issues. Not only can legal counsel assist in determining the appropriate course of action for FMLA issues, but seeking the advice of counsel will also aid in defending against any claim seeking to impose individual liability. If you have any questions or wish to discuss these or other FMLA issues, please contact Allen Norton & Blue.

-Michael E. Bonner, Associate Attorney with ANB's Coral Gables Office

With offices in Coral Gables, Orlando, Tampa, and Tallahassee, Allen Norton & Blue, P.A. is Florida's preeminent labor and employment law firm that partners with its clients to build lasting relationships focusing on innovative strategies to prevent and resolve workplace issues efficiently and effectively.

If you have any questions about this or any other employment issue, please contact your attorney at Allen Norton & Blue.

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