Tag Archives: Training

HR Director Can Be Individually Liable for FMLA Violation

Most human resources professionals and managers think that working for a corporation gives them some protection from being sued themselves by former employees, but a federal appeals court recently held that an HR director can be individually liable for violations of the Family and Medical Leave Act (“FMLA”). The federal Second Circuit Court of Appeals made this decision in Graziadio v. Culinary Institute of America, No. 15-888-CV (2d Cir., Mar. 17, 2016).

The Second Circuit decided that the HR director who instigated the firing of an employee who was out on leave to care for her ailing sons could be sued in addition to the company who formerly employed the plaintiff. The FMLA provides that for purposes of being a defendant in a lawsuit, an “employer” includes “any person” who “acts, directly or indirectly in the interest of an employer” toward an employee. Therefore, a manager, supervisor, vice-president, HR director, leave administrator and other decision-making employees could be sued along with their company if the FMLA isn’t administered correctly.

The courts look at the “economic realities” of the situation, including whether the HR director had the power to hire and fire employees; supervise and control employee work schedules or conditions of employment; determine the rate and method of payment; and maintain employment records. Although a vice-president actually made the final firing decision in the Graziadio case, the evidence suggested that the HR director played an important role and the vice-president essentially just rubber-stamped the HR director’s recommendation of terminating the employee who was on leave.

These kinds of decisions are frightening to management employees who have to make hiring and firing decisions and those who have to administer the complex FMLA. However, this ruling should not come as a complete surprise to those of us who live and work in Texas, because the Fifth Circuit, which rules on federal cases in Texas, Louisiana and Mississippi, made a similar ruling ten years ago.

In addition, our Fifth Circuit court approaches the Fair Labor Standards Act (wage and hour) cases in the same manner. If the economic realities demonstrate that a supervisor was responsible for the misclassification of an employee as an independent contractor (meaning that the proper taxes weren’t paid, among other violations of employment laws) or the underpayment of minimum wages or overtime, then that supervisor may face a personal lawsuit by a former employee, along with the company being sued.

How can you as a manager or HR director protect yourself from a lawsuit that could endanger your personal assets? Continue reading HR Director Can Be Individually Liable for FMLA Violation

Texas Discrimination Charges Too Numerous

Texas leads the nation in number of charges filed with the EEOC alleging gender discrimination, race discrimination, age discrimination, and disability discrimination, according to a recent story from the Society for Human Resource Management.  It is time for more employee training and better personnel policies for your Texas business so you don’t have to battle a discrimination charge.