A little known fact about the FMLA is that it can provide for individual liability in certain circumstances. Recently, the Second Circuit Court of Appeals in Graziadio v. Culinary Institute of America served a loud reminder of that fact.
The FMLA defines “employer” as “any person who acts, directly or indirectly, in the interest of any employer to any of the employees of such employer”. That is a convoluted way of saying an individual can be liable under the Act. This definition came directly from the FLSA, and in certain FLSA cases individual liability is imposed.
What are the circumstances which can result in individual liability? The Second Circuit adopted a nonexclusive four factor “control” test. The four factors the court recognized are:
- The power to hire and fire;
- Supervising and controlling employee work schedules or conditions of employment;
- Determining the rate and method of payment to employees; and
- Maintaining employment records.
In Graziadio the court applied this test and held that there were disputed factual issues as to whether the company’s HR Director met the definition of employer and ruled that a jury will have to decide the question.
This case may lead to plaintiffs suing both the company and an HR Director or some other member of management under the FMLA, particularly if there is some question about the solvency of the company. Only time will tell.