Remind managers: FMLA carries personal liability risk

If your organization’s supervisors tend to ignore all that "HR talk" about FMLA leave, here’s one way to get their attention: Point out that, in addition to suing your organization, employees can sue their bosses (and HR directors!) personally for FMLA-related mistakes.

Lawyers believe two pockets are better than one. And certain federal laws (see box below) allow for personal liability. That means a manager’s home and nest egg could be at risk.

Bottom line: Make sure supervisors—and you—understand how to comply with those laws. Explain personal liability in training. To protect yourself, document your own decision-making processes and when you’ve given advice that’s ignored.

Case in point: When teacher Gale Hewett hurt her foot, she took FMLA leave for several weeks. The HR director and school district decided to fire her because they needed a teacher "in the classroom on a consistent basis." Hewett sued the district, plus the HR director personally.

The 3rd Circuit allowed the personal lawsuit to go forward. Reason: The FMLA allows an employee to sue his or her employer, and the law defines "employer" as "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The court said that means any manager or supervisor who recommends or approves FMLA decisions. (Hewett v. Willingboro Board of Education, et al., No. 05-2035, 3rd Cir., 2006) 


Federal laws that allow personal liability against an individual

Federal laws that allow personal liability:

  • Family and Medical Leave Act
  • Fair Labor Standards Act
  • Military personal leave law (USERRA)
  • Employee Polygraph Protection Act

…and those that don’t:

  • Title VII (anti-discrimination)
  • Americans with Disabilities Act
  • Age Discrimination in Employment Act
  • Pregnancy Discrimination Act