Most supervisors know that they risk personal liability under Title VII of the Civil Rights Act of 1964 and Chapter 151B if they sexually harass a subordinate employee. But that isn’t the only way supervisors may be held individually liable in Massachusetts.
designer491 / iStock / Getty Images Plus
Employees can press other legal theories against their supervisors, and the list just got a bit longer. In a recent decision, a Massachusetts federal judge held that an individual supervisor could be held personally liable for violations of the federal Family and Medical Leave Act (FMLA).
Suspicious Timing for PIP?
In April 2014, Virginia-based Brink’s, Incorporated, hired “Howard” as its global head of fleet. He was supervised by chief procurement officer Gordon Campbell.
In mid-October 2015, Howard notified Campbell that he needed to take a medical leave of absence to have surgery. According to Howard, Campbell criticized his work performance about a week later and then issued him a performance improvement plan (PIP) after he began his medical leave.
Howard returned from leave on January 18, 2016. About 10 days later, Campbell discussed the PIP with him by phone and sent it to him again. Howard resigned from his position at Brink’s 3 days later.
Supervisor = ‘Employer’ Under FMLA
Howard immediately pursued administrative charges against Brink’s with the Equal Employment Opportunity Commission (EEOC). After the EEOC dismissed his charges, he filed suit in federal court against both Brink’s and Campbell, claiming his former employer and its supervisor had discriminated against him, harassed him, and retaliated against him in violation of a plethora of state and federal statutes, including the FMLA.
Campbell asked the court to dismiss all of Howard’s claims against him as the individual supervisor, including claims that he had interfered with Howard’s FMLA rights and retaliated against him for exercising those rights. Among other things, he argued that individual supervisors like him cannot be held personally liable for violations of the FMLA. In a brief decision, however, a federal judge denied his motion.
First, the court observed that liability under the FMLA may attach to any “employer,” and the statute broadly defines the term “employer” to include “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” Next, the court noted that the definition of “employer” in the Fair Labor Standards Act (FLSA) is “materially identical” to the definition in the FMLA.
Because the U.S. Court of Appeals for the 1st Circuit—which covers Maine, Massachusetts, New Hampshire, and Rhode Island—has ruled that individual supervisors may be sued personally under the FLSA, the judge ruled that it was only logical to follow the 1st Circuit’s ruling when determining individual liability under the FMLA.
Finally, the court noted that the majority of federal courts that have considered this issue have concluded that individual supervisors can be held personally liable for violating the FMLA rights of employees under their supervision. Following precedent from those courts, the judge rejected Campbell’s argument that he couldn’t be personally liable under the FMLA, allowing Howard the chance to prove that Campbell personally violated the FMLA by criticizing his performance and then issuing him a PIP while he was on a job-protected leave of absence. Eichenholz v. Brink’s Incorporated, et al. (D. Mass., 2017).
Takeaways
Of course, this is just a decision by a trial court, and the 1st Circuit hasn’t yet taken a definitive stance on whether individual supervisors may be held personally liable under the FMLA. Nonetheless, the court’s logic, coupled with decisions from other federal courts, is persuasive, and supervisors in Massachusetts now face the prospect of personal liability for violating the FMLA rights of their subordinate employees.
What does that mean? Well, obviously supervisors need to exercise great care when it comes to FMLA compliance. When in doubt, a supervisor should assume that any vague reference to taking time off for a medical reason, either for the employee’s own health condition or that of a parent, child, or spouse, is a request for FMLA leave. And the supervisor must promptly notify HR if he learns that the employee’s need for leave could possibly be FMLA-related.
It also means that you must get the proper FMLA paperwork out the door on time—within 5 business days of receiving notice of the request—as well as maintain open lines of communication with the absent employee, be flexible about extending deadlines, save unrelated professional matters for the employee’s return, and be mindful of related obligations under the Americans with Disabilities Act (ADA).
And, finally, it means that you should take advantage of training opportunities and seminars for your supervisory team and seek the advice of experienced employment counsel when you aren’t sure how to proceed. By taking proactive measures, you can reduce legal risk—both for your organization and for your supervisors.
Erica E. Flores is an associate at the firm of Skoler, Abbott & Presser, P.C and an editor of Massachusetts Employment Law Letter. She can be reached at 413-737-4753 or eflores@skoler-abbott.com.