In a case of first impression, the Third Circuit Court of Appeals held that a supervisor may be individually liable for violating the Family and Medical Leave Act (“FMLA”). While noting that individual liability is not recognized in some Circuit Courts, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole reached a contrary conclusion.
The plaintiff in Haybarger had diabetes, heart disease and kidney problems requiring her to miss work frequently for medical attention. Her direct supervisor disciplined her concerning her attendance as well as her job performance and placed her on a 6-month probationary period. He also prepared an annual performance review which identified her attendance deficiencies. At the end of the probationary period, the supervisor recommended to his superior that the defendant County terminate the plaintiff’s employment. Although the supervisor did not have the authority to make the termination decision, it appears his recommendation to terminate was given significant weight, and he attended the termination meeting.
The plaintiff sued, asserting claims under the Americans with Disabilities Act, the Pennsylvania Human Relations Act (“PHRA”), the Rehabilitation Act and the FMLA. The defendant County moved to dismiss all of the claims, which the District Court granted except for the Rehabilitation Act claim against the County and the FMLA and PHRA claims against the individual supervisor. After discovery, the defendants moved for summary judgment. The District Court granted summary judgment to the individual supervisor, concluding that although the FMLA provides for individual liability, plaintiff did not present evidence of “sufficient control over the [employee’s] conditions and terms of employment” to impose such liability. On appeal, the Third Circuit reversed the decision of the District Court.
In reaching its decision, the Third Circuit construed the definition of “employer” under various laws and interpretations including the FMLA and that of the Fair Labor Standards Act (“FLSA”) containing a similar definition, the Department of Labor’s implementing regulations, and the rationale of the Fifth and Eighth Circuits addressing individual liability claims. The Court held that “just as a real estate management company acting as an agent for building owners may be liable as an employer under the FLSA, an individual supervisor working for an employer may be liable as an employer under the FMLA.” Finally, the Court applied the “economic realities” test, which analyzes whether the purported supervisor exercised the control of an “employer” over the employee. Here, the Court found that sufficient evidence existed regarding the presence of control over the plaintiff to create an issue of fact to deny summary judgment to the individual defendant. Specifically, the Court found that even if the supervisor lacked the authority to terminate the plaintiff, he exercised substantial authority over her termination decision by preparing her termination letter and attending her termination meeting. In addition, the Court noted the individual supervisor’s control over the plaintiff’s employment conditions prior to her termination involved supervising her work, preparing her performance reviews and disciplining her, which further establishes control.
Implications for Employers
The concept of individual liability, especially for an employer which may defend the individual, is more of a tactic by a plaintiff to “personalize” the lawsuit rather than just involving a corporate defendant. Individual liability may exist even if the individual supervisor acted within the scope of his/her duties that involved discipline, termination or some other adverse consequence to the employee. It is not clear from Haybarger whether others involved in such decision-making, such as human resources and legal department personnel, could potentially be liable. However, Haybarger highlights the need for employers to follow a protocol when making decisions that adversely affect an employee’s terms and conditions of employment, to ensure that those participating in the decision-making are trained properly and that documentation concerning the decision-making process is prepared so that an individual supervisor is not left alone or unchecked to decide these matters.
Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.