Third Circuit finds lower level public sector supervisor responsible for FMLA violations
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
The Third Circuit in Haybarger v. Lawrence, No. 10-3916 (3d Cir. Jan. 31, 2012) held that individual supervisor in the public sector, like their private sector counterparts, could be individually liable for violations of the FMLA separate from, and in addition to, the employer.
Debra Haybarger was employed as an office manager for the Lawrence County Adult Probation and Parole agency, a department in the County Court system. She reported to William Mancino, the Department Director. Haybarger suffered from Type II diabetes, heart disease, and kidney problems, which forced her to miss work frequently for medical attention. Notwithstanding her known medical condition, Mancino repeatedly noted in her annual performance evaluations that she needed to cut down on her absences due to illness. He also repeatedly questioned why she needed to visit the doctor so often. Mancino disciplined Haybarger and placed her on probation for six months for conduct demonstrating a lack of leadership. After securing proper authorization, Mancino subsequently fired Haybarger when, in his opinion, her performance did not improve.
Haybarger sued Lawrence County, the Probation Department, and Mancino for violation of the FMLA. The federal district court dismissed Haybarger's FMLA claim against Mancino in his individual capacity on the merits after finding that Mancino did not have sufficient authority and control over Haybarger to be considered an "employer" subject to liability within the meaning of the FMLA. Haybarger appealed the decision of the district court to the Third Circuit.
To determine whether the district court erred in holding that Mancino was not Haybarger's "employer" for FMLA purposes, the Third Circuit, in a case of first impression, opined that it first had to consider whether the FMLA permits individual liability against supervisors in public agencies. Because liability for FMLA violations is limited to an "employer" as defined by the Act, the Court began its analysis with the FMLA definition of "employer"in 29 U.S.C. Sec. 2611(4)(A)(i)-(iii):
In general. The term "employer"
(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;
(ii) includes--
(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and
(II) any successor in interest of an employer;
(III) includes any "public agency" as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).*
The Court also noted that individual supervisor liability for FMLA violations is codified in the U.S. Department of Labor FMLA implementing regulations, 29 CFR 825.104(a), (d). As additional support, the Court referenced the fact that the FMLA definition of "employer" is materially identical to the FLSA definition, and that the Third Circuit has found individual liability for FLSA violations, including liability for lower level supervisors.
The Third Circuit found not reason to distinguish between public agencies and private sector employers under the FMLA insofar as individual liability is concerned. After recognizing a split in the Circuits on the issue, the Third Circuit joined the Fifth and Eighth Circuit to find individual public sector liability for FMLA violations. In so doing, the Third Circuit rejected decisions of the Sixth and Eleventh Circuit finding no individual public sector supervisor liability for FMLA violations. The split in the circuits rest on highly technical interpretations of the structure of the FMLA's "employer" definition. The Third Circuit found that, because the definition of "employer" includes "public agencies," and Congress provided that an "employer" may include individuals, "it plainly follows that an individual supervisor at a public agency may be subject to liability."
The Court went on to find that Mancino was Haybarger's "employer" under the FMLA. Here again, the FMLA defines an "employer" as "any person who acts, directly or indirectly, in the interest of an employer to any of the employee's of such employer." Citing FLSA case law as support, the Court opined this meant that an individual is subject to FMLA liability when he or she exercises "supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation while acting in the employer's interest. Applying the "economic reality" test, whether a person functions as an employer depends on the totality of the circumstances rather than on "technical concepts of the employment relationship," including: (1) whether the individual had the power to hire and fire the employee; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.
Here, the Court found that Mancino exercised sufficient control over Haybarger's employment on behalf of Lawrence County to be her employer. The fact that Mancino lacked final authority to terminate Haybarger did not alter the situation where, as here, he served has her immediate supervisor, he conducted performance reviews, issued discipline, and recommended her ultimate termination.
Mr. Bosland Comment: In the private sector, courts have consistently found that individual managers and supervisor acting on behalf of their employer may be individually liable for violating an employee's FMLA rights. The federal circuit courts have split on the issue in the public sector based on highly technical textual and contextual interpretations of the FMLA's definition of "employer." The split in the circuits on the issue will likely be resolved one day by clarification by Congress or a decision by the U.S. Supreme Court.
Where it applies, an individual supervisor may be liable even though they are not a very high level official or have final authority over the employee, provided they exercised some control over the employee and was at least partially responsible for the violation. To be liable, it is not required that the manager or supervisor intend to violate the employee's FMLA rights. A manager or supervisor may be personally liable for even inadvertent FMLA violations.
Supervisors and managers with FMLA responsibilities would be well-advised to ask their employers to provide them with periodic FMLA training to ensure legal compliance. Employee's should also inquire whether the employer's insurance policies cover the considerable legal costs of defending an FMLA lawsuit, including the cost of any settlement or adverse judgment. If not, you should either demand coverage (in writing), secure it on your own, or rethink your continued employment as a manager or supervisor with that organization. The legal defense of an FMLA lawsuit alone could cost in excess of $100,000 dollars, let alone the increased costs of any settlement or adverse judgment. Such costs would bankrupt most supervisors.
To avoid FMLA lawsuits and retain good managers and supervisors, FMLA-covered employers should provide periodic FMLA training and secure insurance to cover the defense and resolution of FMLA claims filed against individual supervisors.
* NYPPL comments: In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) [64 LW 4167], the Supreme Court observed that Congress cannot nullify the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. The Supreme Court then said that the Indian Commerce Clause was indistinguishable from the Interstate Commerce Clause. The Supreme Court indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided." As the FMLA, as was the FLSA, was enacted under color of the Interstate Commerce Clause [29 USC 216(b)], presumably its provisions are not controlling absent the State’s "waiving its immunity" and thereby consenting to its being sued by its employees in a federal court.
The Third Circuit covers New Jersey, Delaware, Pennsylvania, and the U.S. Virgin Islands.