Second Circuit Holds HR Managers Can Be Personally Liable In FMLA Retaliation Claims, Part II

This is a continuation of our previous post, discussing a FMLA retaliation claim brought by an employee who was allegedly terminated for failing to meet the documentary requirements of the FMLA, and her subsequent claim against her former employer, supervisor, and the company’s HR director.  Please refer to our last post for the background of this case, as this post will focus on the Second Circuit’s subsequent reversal of the District Court’s grant of summary judgment for the Defendants.

With respect to individual liability for the HR director (Plaintiff did not challenge dismissal of the claims against her supervisor), the Second Circuit noted that the FMLA defines an “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.”  While the Second Circuit has not examined this clause directly, its sister courts have found that the FMLA definition tracks with the Fair Labor Standards Act definition.  The Second Circuit concurred, and applied the “economic-reality test.”   Under this test, courts ask “whether the alleged employer possessed the power to control the worker [ ] in question, with an eye to the ‘economic reality’ presented by the facts of each case,” based upon factors including “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.”  Applying these factors, the Second Circuit held there was substantial evidence from which a rational trier of fact could find that the HR director was an “employer,” vacating the District Court’s dismissal of the individual liability claims.  Specifically, the Court noted the substantial delegation of power from the company president regarding the decision to fire Plaintiff to the HR director, the HR director’s control over Plaintiff’s schedule to the extent she determined the conditions for Plaintiff’s return from FMLA leave, and the HR director’s extensive and exclusive communication with Plaintiff regarding the dispute with the company.

This decision was also notable as the Court formally adopted the prima facie standard for FMLA interference used by the District Courts.  Under this standard, to prevail on a claim of interference with FMLA rights, “a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA.”  Applied to the facts of the instant case, the Second Circuit found that there were material questions of fact with respect to factors three and four.  Accordingly, it held that dismissal was inappropriate and vacated the decision.

The case is Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016).

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