A couple of recent Federal Court decisions serve as a warning to public employee supervisors – it is clear that you may be on the hook individually when sued by employees who claim FMLA violations. Moreover, because of certain immunities enjoyed by municipalities, the present state of the law will most certainly encourage plaintiffs and their attorneys to add individual claims against supervisors when alleging violations of the Family Medical Leave Act.
Courts across the country have been split on whether supervisors can be liable, but a couple of court decisions over the past several months have put supervisors on notice that they are likely to be defendants in these cases (in Massachusetts, there is no doubt). This is of particular concern to our law enforcement clients, as many supervisors are simply issuing orders passed down through the chain of command. Traditionally, only those individuals with ultimate authority (i.e. the authority to hire and fire employees) could be held personally liable – that is no longer the case. As such, if you are a supervisor who may be involved with employees who use sick time, personal time, or other leave to care for themselves or family members, you should be on notice that any conduct of yours that runs afoul of the FMLA may put your personal assets at risk.
The most recent case is Haybarger v. Lawrence County Adult Probation and Parole, decided January 31, 2012. The facts of the case are familiar to those of us who represent employees: a woman probation worker with diabetes and other medical problems appears to be getting a hard time because she used her sick-time to care for herself, etc. Her immediate supervisor made comments to her about her health, gave her negative employment reviews related to taking days off, and ultimately disciplined her. Eventually, the supervisor recommended she be terminated, and although he had no authority to fire her, she was terminated by the head of the court. The employee sued, including a claim against her immediate supervisor personally. The court (U.S. Court of Appeals for 3rd Circuit) made two significant rulings: (1) an individual is subject to FMLA liability when he or she exercises “supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation” while acting in the employer’s interest, and; (2) that the supervisor had sufficient supervisory authority over the employee’s work-situation to justify a jury verdict against him individually, regardless of whether the supervisor was the ultimate employment authority.
A 2011 Massachusetts Federal Court came to the same conclusion (Mason v. Mass. DEP, D.Mass 2011). A union employee sued the Commonwealth and his immediate supervisor for violations of the FMLA. The Court found specifically that defendants who are supervisors for a public agency may be individually liable for violations of the FMLA. In fact, that court let the Government defendants out of the case for reasons of immunity, and only kept the individual supervisors on-board as defendants.
As many public employers DO NOT indemnify supervisors for judgments, this case should put all supervisors on notice that they need to be careful about giving orders or issuing discipline as it relates to employee leaves that implicate the FMLA. There is obviously a lot of pressure on supervisors to curtail sick-time use, and other forms of leave, during times of financial constraint. Where a supervisor is carrying out such directives, he or she may unwittingly put themselves solely on the hook for FMLA violations, while their employer watches safely from the sidelines (this, of course, is nothing new).
Message to supervisors: document with your employer exactly what they are directing that you do, and clarify with the employee the source of any such directive. To those supervisors who take it upon themselves to participate in such conduct, our advice is make sure you have your personal assets sufficiently protected. Feel free to check out the Homestead Protection article on our blog, which is a good start.