Human Resources: Personal Liability Under FMLA: How To Avoid It

Excerpted from Iowa Employment Law Letter written by the law firm of Pingel & Templer, P.C.

An acquaintance of mine recently called to let me know that she''d just taken a job as the HR manager at a company in another state. She informed me that her predecessor had resigned after a personal judgment had been entered against him. Apparently, the previous manager fired a payroll clerk because of excessive absences after the clerk had stayed out for four days with a case of hepatitis. The manager who made the decision to fire the clerk failed to ask for a medical certification.

The employee sued under the FMLA and won a personal judgment against the former manager, a verdict that was recently upheld on appeal. My friend asked me whether she had just accepted a job where one of the essential functions was to wear an "FMLA target" on her back. The answer is, "Yes, if you aren''t careful."

When is the bull''s-eye on your back?

Recent decisions throughout the nation indicate that courts are willing to impose personal liability on executives, supervisors, managers, and even HR professionals for violations of the FMLA. The basis for individual liability is found in the Act''s definition of the term "employer."

Unlike the federal laws banning discrimination on the basis of various protected characteristics, each with its own definition of the term "employer," the FMLA incorporates the Fair Labor Standards Act''s (FLSA) definition of an employer. Under that definition, an executive, supervisor, manager, and "any other person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer" may be held liable for a violation of the FMLA.

Neither the FMLA nor the FLSA, nor their regulations, sets forth the standards under which a supervisor or manager may be held personally liable. Pieced together from the various cases that have considered the issue, you may be held liable if:

You have responsibility for FMLA compliance. In other words, if you''re responsible for enforcing the company''s attendance policy, you''re probably at risk of liability for violations.

You''re the employee''s immediate supervisor or otherwise in her chain of command. Administrators such as HR managers may also be liable, depending on the degree of control and authority they exercise over the employee.

You discuss, have the responsibility to discuss, or make the decision regarding leave for the employee, or you make the decision to take adverse action against the employee.

The FMLA is a no-fault statute. Therefore, in order to impose liability on a supervisor, the aggrieved employee need not prove that the employer intended to violate the Act. Since individuals may, if they satisfy the criteria, be held liable on the same basis as the employer, some federal courts have held that a manager or supervisor may be ordered to pay damages for any violation, even an unintentional one.

Don''t Be A Sitting Duck

The strict liability imposed for violating the FMLA probably demands that HR pay careful attention to all functions connected to FMLA administration. To reduce the likelihood of personal liability, here are some tips to implement when administering FMLA leave:

HR should be at the center of every employer''s FMLA process. Don''t leave it to the supervisor to deal with the problem of how to replace a missing worker or with questions of reinstatement. HR must function as the gatekeeper and maintainer of all FMLA files, notices, and attendance records; the source of information about employees'' leave entitlements; and the final authority for dealing with leave requests.

When you temporarily replace someone who''s on FMLA leave, don''t make promises to the replacement worker that the FMLA won''t allow you to honor. The supervisor may say to the replacement: "If things work out, I''ll do everything I can to keep you in the job." When the original employee is ready to return from FMLA leave, perhaps 12 weeks later, the supervisor and the HR manager may find two people making claims to the same job. The FMLA requires reinstatement of the person returning from FMLA leave. You should monitor and resist the tendency to engage in "side dealmaking" with the replacement worker.

Carefully monitor alternative assignments for employees needing intermittent leave. It''s no secret that one of the greatest difficulties a supervisor or HR manager faces can occur when an employee requires intermittent leave. The company finds it difficult, if not impossible, to hire a replacement, and other employees have to cover when the employee is absent. If the employee has to leave work on short notice, scheduling issues are exacerbated. If the employee and supervisor agree to an alternative assignment for the employee during the period that intermittent leave is required, the supervisor may look for a replacement. Consequently, it''s imperative that HR have a policy covering replacements for people on leave that''s understood and agreed to by both the replacement and the supervisor involved.

Remember, managing the expectations of employees, supervisors, and replacement workers by having carefully articulated and followed procedures can reduce the likelihood that personal liability will be imposed.

Additional Resources

HR Executive Special Report:

FMLA Leave: A Walk Through the Legal Labyrinth www.hrhero.com

IOWA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems nor does it provide legal advice. The newsletter provides general information on current developments on Iowa employment issues. Questions about individual legal problems should be addressed to the attorney of your choice. Remember to check your state''s laws for more restrictive rules and regulations. For more information on state- specific employment updates written by attorneys in your state, go to: Hrhero.com.