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Still Split: Individual liability for responsible supervisors under the FMLA?

Many federal employment-related laws, including anti-discrimination laws like Title VII, do not explicitly make individuals liable for violations. Rather, only an “employer” is typically held accountable and many federal courts have ruled that the definition of “employer” does not include individual supervisors, managers, officers or employees.

Like Title VII, the Family and Medical Leave Act (FMLA) creates rights of action for employees against “any employer” who violates the statute. The definition of “employer” under the FMLA includes “any person who acts, directly or indirectly, in the interest of any employer to any of the employees of such employer.” Neither the Seventh Circuit (which includes Indiana and Illinois) nor the United States Supreme Court have addressed whether this definition includes individuals. There is a split among the federal circuit courts that have ruled on this issue. The Third, Fifth, and Eighth Circuits have all found that there can be individual liability for FMLA violations. The Sixth (which includes Ohio and Kentucky) and Eleventh Circuits, however, maintain that there is no individual liability under the FMLA.

A Seventh Circuit decision on this issue could be on the horizon. In a Sept. 19, 2013 decision, the U.S. District Court for the Northern District of Illinois ruled that an employee who was allegedly terminated from employment in violation of the FMLA could proceed against the individual supervisors involved in the termination decision. In that case, Shockley v. Stericycle, Inc., the court first determined that the FMLA’s definition of “employer” is similar to the definition found in the Fair Labor Standards Act (FLSA). The court then applied the analysis used in FLSA cases to the facts in Shockley and found that the individual supervisors involved and named as defendants had sufficient “supervisory authority over the complaining employee and [were] responsible in whole or in part for the alleged violation.”

The bottom line? The law concerning individual liability under the FMLA remains unsettled, both in the Seventh Circuit and nationwide. Only a decision by the United States Supreme Court will resolve the current split in the circuit courts. In the meantime, both employers and supervisors should remain careful to comply with all obligations under the FMLA and otherwise take care when making employment decisions in order to avoid or minimize potential liability.

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