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Warn supervisors: They can be held personally liable in FMLA cases

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in Firing,FMLA Guidelines,Human Resources

Could your supervisors and managers be held personally liable when they wrongly interpret the Family and Medical Leave Act (FMLA)? In many courts, the answer is yes.

Recent case: Susan Darby sued her employer, the police department and several of her supervisors under the FMLA. She claimed that her bosses refused to give her a promotion after she took legal FMLA leave.

The 8th Circuit appeals court, which covers Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota, and South Dakota, let the case go to a jury, including the possibility of individual liability of Darby's supervisors. It said the FMLA's definition of "employer" allows for individual liability because it includes any person "who acts, directly or indirectly, in the interest of an employer." (Darby v. Bratch, No. 01-2006WM, 8th Cir., 2002)

With this decision, the 8th Circuit joins the 7th Circuit (Illinois, Indiana and Wisconsin) in concluding that individual liability does exist under FMLA. Most lower courts addressing the issue have also ruled that way. The only other federal appeals court to rule on the topic is the 11th Circuit (Alabama, Florida and Georgia), which has ruled that supervisors cannot be held individually liable in FMLA cases.

Advice: To make your supervisors sit up and take the FMLA seriously, explain how they could be held personally liable for mistakes under this law, meaning lost money and, possibly, a loss of their job. Once you've got their attention, make sure they are well versed in the various aspects of FMLA. (For details on FMLA compliance, visit www.dol.gov/elaws/fmla.htm.)

Remind supervisors that firing and promotion decisions should never be based on an employee's qualified use of FMLA leave. To minimize chances for FMLA claims, document the nonretaliatory reasons for your actions and explain them to the worker.

Because FMLA is so tough to manage, have all FMLA requests administered through one individual, so the policies are applied fairly, consistently and within the rules.

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