Second Circuit Recognizes Individual Liability Under the Family and Medical Leave Act

The Family and Medical Leave Act (“FMLA”) provides eligible employees with twelve workweeks of unpaid leave  in connection with the birth or adoption of a child, caring for an immediate family member with a serious health condition, the employee’s own serious health condition, and exigencies relating to an employee’s or a family member’s service in the National Guard, Reserves, or Regular Armed Forces.  Among the FMLA’s protections is an eligible employee’s entitlement to be protected from interference and retaliation by an “employer” for the exercise of FMLA rights.

Until just last week, it was unclear in the Second Circuit (New York, Connecticut and Vermont) whether an individual supervisor or other management official could be sued under the FMLA as an “employer” for interference and retaliation.  On March 17, 2016, the United States Court of Appeals for the Second Circuit in Grazadio v. Culinary Institute of America, No. 15-888-cv, ruled that an individual management employee could be considered an employer under the FMLA and held  liable for violating an employee’s FMLA rights.

In Graziadio, the plaintiff had sought to take two separate leaves relating to her childrens’ serious health conditions.  The first approved leave was taken in connection with her son’s diabetes, and the second leave was sought and taken about a week after she returned to work as a result of her other son having suffered a leg fracture, necessitating surgery.  The plaintiff had promptly informed her supervisor that she would need to take an immediate second leave and that she would return approximately 10 days later “at least part time.”  Ultimately, the plaintiff sought approval to return to work from this second leave on a reduced schedule and asked whether the employer needed “any further documentation” from her concerning the leave that she had taken.

Unfortunately, the employer failed to respond to the plaintiff’s  numerous phone calls and emails asking what additional documentation the employer required.  Finally, five days after the plaintiff’s scheduled return date, the Director of Human Resources sent the plaintiff a letter stating that her FMLA paperwork was deficient and that she needed to “provide updated paperwork” for her second leave.  When the plaintiff sought clarification on what paperwork would correct the unidentified deficiency, she again received no response or guidance.  The plaintiff continued to make efforts to communicate with the Director of Human Resources regarding the leave request, but again received no substantive response.

Despite the plaintiff’s attempts to provide documentation that she believed could satisfy her employer, she was ultimately terminated for job abandonment.  She ultimately filed a lawsuit in United States District Court for the Southern District of New York against her employer and two supervisors, which the court dismissed, holding that she was not unlawfully denied leave or otherwise retaliated against for having taken her leave.  The Second Circuit reversed.

According to the Second Circuit, the employer’s Director of Human Resources was an “employer” under the FMLA based upon the application of the “‘economic reality’ of the employment situation.”  The “economic reality” test is applied in cases under the Fair Labor Standards Act, and considers factors such as “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.”

Consideration of these factors led the court to conclude that the Director of Human Resources could qualify as an employer under the FMLA.  The court found that there was ample support for the conclusion that the Director reviewed the plaintiff’s paperwork; determined its adequacy; controlled the plaintiff’s return to work date and under what conditions; and communicated with the plaintiff with respect to most of the communications concerning her leave request and employment.

The decision is significant for supervisors and human resources professionals, because they can now be held personally responsible for failing to abide by the detailed requirements of the FMLA and Department of Labor interpretative regulations.  The case reinforces the importance of employer-provided training to its managerial and human resources personnel to ensure that they understand the FMLA’s requirements as well as its interaction with other statutes such as the Americans with Disabilities Act.  Although not clear from the court’s decision, it is possible that the employer dropped the ball because its managerial personnel was not familiar with an employer’s obligations in handling FMLA leave requests.  At the very least, the employer’s failure to respond to the plaintiff’s repeated requests for guidance indicates that it was not even sure what information it required to verify the plaintiff’s need for leave.  If an employer requires verification, which it is entitled to have, it should also be prepared to articulate specifically the deficiencies that need to be corrected.

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