Supervisor can be sued individually for violating the FMLA

The Family and Medical Leave Act entitles employees who’ve been employed for at least 12 months by a company with at least 50 or more employees within a 75-mile radius to take up to three months of unpaid leave during any 12-month period in order to deal with a medical problem, care for a new child or care for a close relative with a health condition. Employers who fail to abide by the FMLA’s requirements or who retaliate against a worker for taking FMLA leave risk serious legal liability.

Further, according to a recent case out of Massachusetts any supervisor or manager who violates the FMLA can be sued individually too.

In that case, employee Elliott Eichenholz was on disability leave from security services giant Brinks, Inc., when his supervisor Gordon Campbell issued him a performance improvement plan (“PIP”) letter containing a bunch of demands he’d have to meet in the next 90 days to keep his job.

Eichenholz — who claims Campbell had already mistreated him for requesting FMLA leave in the first place — filed an Equal Employment Opportunity Commission (EEOC) intake questionnaire accusing Campbell of violating the FMLA by sending the letter while he was on leave.

When Eichenholz did return to work, Campbell emailed him stating that now that he was back, he’d have to address the demands in the PIP letter.

Eichenholz then gave two weeks’ notice, allegedly to ensure he was no longer subjected to a “hostile work environment.” He was terminated the next day.

The employee filed an official complaint with the EEOC and after an unsuccessful mediation sued Brink’s and Campbell for FMLA retaliation and discrimination in federal court.

Campbell tried to get the case against him dismissed, arguing that the FMLA only allowed “employers” to be sued, and that individual supervisors don’t count as “employers.”

But a U.S. District Court judge disagreed.

Specifically, the judge pointed out that supervisors can be sued individually under the federal Fair Labor Standards Act (FLSA) for wage-and-hour violations, and that because the FMLA defines “employer” the same way that the FLSA does, supervisors can be sued under the FMLA as well.

So why does this matter to employers? It matters because it makes a claim under the FMLA tougher to defend by giving the employee’s lawyer the opportunity to exploit a divided and therefore weakened opponent. This is particularly true if the supervisor has gone on to work for someone else by the time trial rolls around.

Further, if there’s a conflict between the supervisor and the employer that requires them to have separate counsel, for strategic reasons the supervisor’s attorney is likely to encourage him to turn on the employer.

That’s why it’s critical to make sure all employees and supervisors are trained on the FMLA’s requirements. If you just put an FMLA policy in your handbook and call it a day, it could come back to haunt you later.

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