Don’t be surprised if individual supervisors start to appear more often as defendants in Family Medical Leave Act (“FMLA”) lawsuits. Because of a recent decision from the Third Circuit Court of Appeals in Haybarger v. Lawrence County Adult Probation and Parole, the door has opened slightly for plaintiffs to name supervisors in addition to their employer.

The plaintiff in Haybarger was put on a six-month probationary period and later terminated. She had missed a significant amount of work to seek treatment for several serious health conditions, including Type II diabetes, kidney problems, and heart disease. The former employer claimed she was terminated for performance issues.

In looking at the definition of “employer” under the FMLA and its regulations, the court concluded that “liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff’s ‘employer’” when it determined that Haybarger’s direct supervisor should remain a defendant in the lawsuit. It appears that this analysis may apply equally to supervisors at public and private employers, even though the defendant in this case was public, as the court said “we discern no reason to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned.”

As does the Second Circuit, the court in Haybarger looked at whether the supervisor had enough authority to qualify as an “employer” under the FMLA and applied an “economic reality” test. Under this test, the following four factors were considered, although they are not an exhaustive list:

1. whether the individual had the power to hire and fire the employee;
2. whether the individual supervised and controlled employee work schedules or conditions of employment;
3. whether the individual determined the rate and method of payment; and
4. whether the individual maintained employment records.

The court refused to dismiss the case against the supervisor and found that there were enough facts present to let a jury decide.

Although this is not yet the law in the Second Circuit and although other circuits are split on the issue, you should be proactive and use this development as an additional opportunity to train supervisors about their obligations under the FMLA.

Stay tuned to future Employer Alerts to see if New York courts or the Second Circuit follows suit.

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