It’s been a big couple of days for court opinions. Today’s turn: FMLA lawsuits.
When we last talked about the FMLA, it was in the context of the fact that sometimes things about the law are bit complicated.
Well, if you didn’t like the intricacies of the FMLA before, this new decision isn’t going to make things better for you.
In a split from other federal employment laws, the Second Circuit last week held that some employees may be held individually liable for employment claims brought under the FMLA.
The case, Graziadio v. Culinary Institute of America, is sending shock waves throughout the employment law blogosphere (see some posts here and here).
And because the Second Circuit covers Connecticut, employers, supervisors and HR personnel need to read this one very carefully. FMLA training should be part of training already but this case emphasizes the need to be careful.
So, what’s the court’s test to determine if a manager or supervisor can be individually liable for FMLA violations? The court said it will look to at least four factors:
- Whether the manager or supervisor had the power to hire and fire the employees;
- Whether the manager or supervisor supervised and controlled employee work schedules or conditions of employment;
- Whether the manager or supervisor determined the rate and method of payment; and
- Whether the manager or supervisor maintained employment records.
Because the court said this was a nonexclusive list of factors, there could be others. Not that we’ll find that out here, but something to be aware of.
In this case, the court said that there was substantial evidence of the test being met regarding the HR manager. For example, because the employee was fired for job abandonment and the VP of Administration deferred to human resources, it found that the HR manager handling the FMLA leave ended up having hiring/firing authority.
And because the HR manager was overseeing the terms of the FMLA leave, the court found the supervisor also controlled the schedule and condition of employment.
While evidence of the other two factors may not work in favor of individual liability, the court said the evidence was enough anyways.
Nevertheless, on the overarching question of whether (HR Director) Garrioch controlled plaintiff’s rights under the FMLA, there seems to be ample evidence to support the conclusion that she did: deposition testimony and email exchanges demonstrate a) that Garrioch reviewed Graziadio’s FMLA paperwork, b) that she determined its adequacy, c) that she controlled Graziadio’s ability to return to work and under what conditions, and d) that she sent Graziadio nearly every communication regarding her leave and employment (including the letter ultimately communicating her termination). Indeed, Garrioch specifically instructed [others] that they were not to communicate with Graziadio and that Garrioch alone would handle Graziadio’s leave dispute and return to work. …Given all this evidence, we conclude that a rational jury could find, under the totality of the circumstances, that Garrioch exercised sufficient control over Graziadio’s employment to be subject to liability under the FMLA.
Before we get to the takeaways, there’s also another portion of the court’s decision worth noting (as The Employer Handbook blog also noted). It shows how e-mail isn’t necessarily the best approach to trying to resolve FMLA issues. A phone still works too and the HR Director’s failure to close the lines of communication seemed to worked against her:
Finally, [after many e-mails, HR Director Garrioch] announced that she would no longer be able to discuss this matter over email and asked [Plaintiff] Graziadio to please provide three dates/times for this week that you are available to come into work and meet with me.
In an excruciating exchange, Graziadio and Garrioch then proceeded, over any number of days, to email back and forth about scheduling a meeting without actually arranging it: Garrioch would ask for dates and times, Graziadio would respond that she was “available whenever,” Garrioch would again ask for specific times, Graziadio would insist that she was “available any time or day,” and so on. Early on in this exchange, Graziadio also forwarded Garrioch an updated FMLA certification for Vincent, but Garrioch did not acknowledge receipt of the certification or otherwise respond to that email. At another point, Graziadio attempted to circumvent the circular exchange by simply “requesting to return to work” on a “full time regular schedule.” Garrioch rejected this request and again insisted that Graziadio appear for a meeting before she could return to work.
Ultimately, no one set a time for a meeting, and Graziadio, facing persistent involuntary leave, retained an attorney.
This case is likely to change the way FMLA claims are litigated in the state. Individual supervisors and/or HR directors may now be brought in as additional parties on the defense side. While employers may indemnify those individuals in nearly all of those cases, it still can be quite unnerving to be a party to a lawsuit.
If you have employment practices liability insurance, it may be time to review that policy to ensure that it covers supervisors who may be sued individually as well.
And, as a reminder, FMLA is not the easiest of statutes to follow. Be sure to stay on top of the certification process and document the steps you have taken. Individuals may face liability for the actions if they don’t.