Supervisor’s Personal Liability Under Family and Medical Leave Act (FMLA) Expanded By Virginia Federal Court

Any manager, supervisor, or officer responsible for the hiring or firing of 50 or more employees may be liable in his or her individual capacity (this means personal liability) for violations of the Family Medical Leave Act (FMLA).  A federal court in Virginia ruled that Francis O’Leary, the Arlington County Treasurer, could be sued in his individual capacity for discharging Patricia Weth after she took FMLA leave for a cancer-related surgery.  The case is Weth v. O’Leary, 2011 U.S. Dist. LEXIS 74432.

O’Leary had told Weth to start looking for a new job.  He relieved her of her duties, and several months later discharged her. Weth’s claims included a FMLA violation of failure to restore her to a substantially similar position, retaliation, and the tort claim of intentional infliction of emotional distress (IIED).

Since government officials usually cannot be sued in their official capacity based on sovereign immunity, Weth named O’Leary as a defendant in his individual capacity as well. The court took a broad reading of the FMLA, and argued that “The FMLA statute plainly includes in the definition of ‘employer’ ‘any personwho acts, directly or indirectly, in the interest of an employer,’ thereby indicating that individual liability on the part of managers, supervisors, and other individual officers of a larger company or public agency is appropriate.” (Italics in original.)

The judge noted similarities between Congress’ intent in the Fair Labor Standards Act (FLSA) and in the much later enacted Family Medical Leave Act, and concluded that Congress intended that individuals, whether corporate officers acting in the interest of an employer or public sector officials, may be held personally liable for violations of the statute.

Other appellate courts have disallowed FMLA suits against public agency officials in their individual capacities, but the Fourth Circuit, which covers Virginia, Maryland, North Carolina, and West Virginia, has left open the question for district courts to decide.  As this case shows, many of these district courts are likely to allow FMLA suits against individual supervisors based on the language of the FMLA.