We are going to take a brief trip to New York to explore a new case that has important implications for Massachusetts employers. Late last week, the United States Court of Appeals for the Second Circuit joined other circuit and district courts in holding that supervisors may be held individually liable for violating the FMLA. The Second Circuit's decision on this issue makes it likely that courts in Massachusetts will adopt the same position when given the chance.
The Second Circuit case – Graziadio v. Culinary Institute of America – involved the claims of a former Payroll Administrator at the Culinary Institute of America ("CIA"). The plaintiff had taken two FMLA leaves – the first to care for a son who suffered from diabetes and the second to care for another son who broke his leg. During the second leave, CIA objected to the FMLA paperwork the plaintiff had submitted and refused to allow her to return to work until she provided new documentation. After communication between the plaintiff and CIA broke down and plaintiff did not return to work, CIA fired the plaintiff. She then sued CIA, her supervisor, and CIA's Director of Human Resources for interference with FMLA leave, FMLA retaliation, and associational discrimination under the ADA in New York federal court. The court dismissed the case at summary judgment, in part because it concluded that neither of the individual defendants was an "employer" who could be held liable under the FMLA. The plaintiff then appealed to the Second Circuit, challenging among other things the lower court's conclusion that CIA's Director of Human Resources was not an "employer" under the FMLA.
The Second Circuit vacated the lower court's dismissal as to the Director of Human Resources. Although the FMLA imposes liability on an "employer" who violates the statute, the Court recognized that an individual may be deemed an "employer" and therefore be held liable for FMLA violations. To decide whether an individual could be considered an "employer" for FMLA purposes, the Second Circuit joined other circuit and district courts and adopted the economic-reality test, which is used to assess individual liability under the Fair Labor Standards Act. Under the Second Circuit's formulation of that test, the question is "whether the alleged employer possessed the power to control the worker[] in question, with an eye to the 'economic reality' presented by the facts of each case." In making this assessment, the court looks to a number of factors, including "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employer work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." In the FMLA context, the court held, the ultimate inquiry is whether the alleged employer "controlled in whole or in part plaintiff's rights under the FMLA."
Applying the test to the facts of the case, the court found that CIA's Director of Human Resources could be held to be an "employer" under the FMLA. Although the Director of Human Resources did not have the ultimate authority to fire the plaintiff, she held substantial power over the termination, as the Vice President who held that authority had allowed her to handle the matter involving the plaintiff and the Director herself described the decision to terminate the plaintiff as a joint one made by her and the Vice President. Moreover, the Director exercised control over the plaintiff's schedule and conditions of employment as it related to her return from FMLA leave, as evidence showed that the human resources department alone handled an employee's return to work after FMLA leave. Furthermore, the court found that the Director controlled the plaintiff's rights under the FMLA. Evidence showed that she reviewed the plaintiff's paperwork, determined whether it was adequate, controlled the plaintiff's ability to return to work and under what conditions, and was the person who had nearly all communications with the plaintiff regarding her leave and employment, including the termination of her employment. In light of that evidence, the court held, the Director exercised sufficient control over the plaintiff's employment to be subject to liability under the FMLA.
While the Second Circuit's decision is not binding precedent in Massachusetts, the decision is still important for Massachusetts employers. To date, the First Circuit – the federal court of appeals with jurisdiction over federal courts in Massachusetts – has not weighed in on individual liability under the FMLA. However, the fact that the Second Circuit and other circuit courts have adopted the economic-realities test for assessing individual liability under the FMLA will prove extremely persuasive to the First Circuit should it be asked to decide the issue. In fact, in 2015, the U.S. District Court for Massachusetts, which follows First Circuit law, assumed in Chacon v. Brigham and Women's Hospital that the First Circuit would apply the economic-realities test for assessing individual liability under the FMLA, noting that there was "national trend" toward recognizing such liability and that "a majority of federal courts to address the issue of private supervisor liability have concluded that such liability exists."
Given the threat of individual liability, employers and their employees with human resources responsibilities will want to take extra caution in dealing with employee FMLA leaves. FMLA can be complicated, even for seasoned human resources professionals, so this is no easy task. However, the extra effort in the early stages will pay off. While you cannot control whether a plaintiff will choose to sue, you can prevent them from succeeding on those claims. That can only be done by making sure that supervisory employees are properly educated about and follow the requirements of the FMLA and the Department of Labor's FMLA regulations.
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