Defense Digest

Employer Liability Under the Family and Medical Leave Act

Individuals May Be Liable Under The Family And Medical Leave Act

Congress enacted the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §2601, et. seq. in 1993 for the broad remedial purpose "to balance the demands on the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. §2601(b). The FMLA requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to eligible employees for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition. 29 U.S.C. §2601(b).

Potential Employer Liability

Federal Circuit Courts have generally found two distinct causes of action against employers under the FMLA: "interference" claims and "discrimination" claims. Bachelder v. America West Airlines, Inc., 259 F.3d. 1112 (9th Cir. 2001); Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199 (11th Cir. 2001). The FMLA makes it unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise" any right provided by the Act. 29 U.S.C. §2615(a)(1). In addition, the FMLA prohibits an employer from "discharging or in any other manner discriminating against any individual for opposing any practice made unlawful by [§ 2615]." 29 U.S.C. §2615(a)(2).

An employee who prevails in a FMLA lawsuit may recover actual damages, i.e. the amount of any wages, salary, and employment benefits the employee would have earned if the employer had not violated the FMLA, minus the amount of earnings and benefits from other employment received by the plaintiff during that time. 29 U.S.C. §2617(a)(1). While an employee may not recover punitive damages under the FMLA, a prevailing plaintiff may recover liquidated damages equal to double the amount of the actual damages. 29 U.S.C. §2617(a)(1). Equitable remedies, such as reinstatement and/or promotion, are also available under the Act. 29 U.S.C. §2617(a)(1)(B).

Who Is An "Employer?"

In light of these powerful remedies, a crucial question for employers and, in particular, for individual supervisors, is, "Who is an employer under the FMLA?"

The definition of "employer" under the FMLA specifically includes "… any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer… ." 29 U.S.C. §2611(4)(ii). An "employer" also includes any "public agency" as defined in the federal regulations implementing the FMLA.

There is a split of authority among the federal courts across the nation that have addressed this issue. However, most of the jurisdictions have found individual liability under the FMLA.

The first case to address this issue after the enactment of the FMLA in 1993 was Freemon v. Foley, 911 F. Supp. 326 (N.D. Ill. 1995). In Freemon, the District Court for the Northern District of Illinois compared the FMLA statute to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201, et. seq. The court developed an "operational control" test for determining individual liability under the FMLA. The District Court believed that the plain language of the FMLA statute defining "employer" was unclear, necessitating a comparison to the FLSA. The court noted that the definition of an "employer" under the FLSA extended to corporate officers and even to those employees with power to act on behalf of the corporation. The District Court believed that several simultaneous "employers" may exist under the FLSA, and that all of these "employers" could ultimately be found responsible for non-compliance with the Act.

Applying this analysis to the FMLA, the District Court for the Northern District of Illinois held that, as long as an individual employee exercised some "operational control" over the alleged employment violation, individual liability could attach under the FMLA as well. Id. at 329.

The District Court for the Eastern District of Tennessee analogized the FMLA to anti-discrimination statutes, such as Title VII, rather than to labor statutes such as the FLSA. Frizzell v. Southwest Motor Freight, 906 F.Supp. 441 (E.D. Tenn. 1995). Since Title VII does not impose individual liability upon supervisors, the Tennessee District Court found no individual liability under the FMLA.

In this Circuit, the District Court for the Middle District of Pennsylvania analyzed the issue of individual liability under the FMLA in Kilvitis v. Luzerne County, 52 F. Supp. 2d 403 (M.D. PA 1999). The Middle District also began its analysis by looking to the plain language of the statute and its definition of "employer." The District Court recognized that a majority of courts interpreting this issue sought guidance from the well established FLSA, as the Northern District of Illinois had done in Freemon. The District Court observed that many other District Courts have found individual liability under the FMLA by comparing the FMLA and the FLSA definitions of "employer." Kilvitis, supra. at 412. Because of the "similarity between the definition of "employer" under the FLSA and the FMLA, the regulatory determination that individual liability exists under the FMLA, and the growing case law that permits individual liability under the FMLA," the court found that the FMLA permitted individual liability.

The first Circuit Court to address the issue of individual liability under the FMLA was the Eleventh Circuit. The Eleventh Circuit found individual liability under the FMLA; however, it carved out an exception for public agency supervisors. In Wascura v. Carver, 169 F. 3d 683 (11th Cir. 1999), the plaintiff, a City Clerk in South Miami, notified the City that she needed leave time to be with her 27-year old son suffering from the end stages of AIDS. The Mayor of the City demanded that the plaintiff resign because of her "situation at home." The plaintiff refused and her employment was terminated.

Interestingly, the Eleventh Circuit also initially looked to the FLSA for guidance on this issue. However, the Eleventh Circuit arrived at a different decision after comparing the FMLA with the FLSA in this situation. Under the FLSA, the controlling case in the Eleventh Circuit on individual liability was Welch v. Laney, 57 F. 3d 1004 (11th Cir. 1995). Under Welch, a public official sued in an individual capacity was not considered to be an employer under the FLSA. Since the FMLA and the FLSA define "employer" in the same way, the Welch holding applied to the FMLA. Therefore, the Eleventh Circuit found no individual liability against public agency officials under the FMLA.

The District Court for the Middle District of North Carolina has recently agreed with the Eleventh Circuit on this issue. In the matter of Keene v. Rinaldi, 127 F. Supp. 2d 770 (M.D. N.C. 2000), the District Court stated, "The plain words of the [FMLA] statute do not suggest that supervisors of a public agency may be considered to be an employee's employer." Rather than recognizing the similarities between the FLSA and the FMLA, the court noted that the FMLA and FLSA defined "employer" differently in the context of public agencies. Id. at 775.

The Eighth Circuit recently chimed in on this issue in Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002). Once again, this court began by analyzing the plain language of the FMLA's definition of "employer." The Eighth Circuit noted that this definition "plainly includes persons other than the employer itself." The court continued, "We see no reason to distinguish employers in the public sector from those in the private sector." The court reiterated criticism of Wascura, that there did not appear to be an explanation of "why public officials should be exempted from liability while managers in the private sector are not." Id at 681. The Southern District of West Virginia and the Western District of Kentucky have also refused to create an exception for public agency supervisors. Cantley v. Simmons, 179 F.Supp.2d 654 (S.D.W.Va. 2002); Carter v. U.S. Postal Service, 157 F.Supp.2d 726 (W.D.Ky. 2001).

Unlike other federal employment statutes, such as Title VII, the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA"), which do not permit individual liability, an individual supervisor may be subject to liability under the FMLA.

* Paul is a shareholder in our Cherry Hill, NJ office. He can be reached at (856) 414-6008 or pjohnson@mdwcg.com