On March 17, 2016, the Second Circuit Court of Appeals (the same court deliberating on Tom Brady’s suspension), ruled that a Director of Human Resources could exercise sufficient control over an individual’s employment to be subject to individual (personal) liability under the Family and Medical Leave Act (“FMLA”). Graziadio v. Culinary Institute of America et al., 15-888-cv (2d Cir. Mar. 17, 2016).
Under the FMLA, an individual may be held liable if he or she is considered an “employer,” defined as “any person who acts, directly or indirectly in the interest of an employer to any of the employees of such employer.” Applying the economic-reality test used to analyze whether an individual is an “employer” under the Fair Labor Standards Act (“FLSA”), the Court concluded the lower court’s summary judgment dismissal against the Culinary Institute’s Director of Human Resources was improper. The Second Court joins the Third and Fifth Circuits in applying the economic-reality test to identify “employers” in the FMLA context.
Under this test, the question is “whether the alleged employer possessed the power to control the worker
In Graziadio, the plaintiff was a five year employee in the Payroll Department, who was ultimately fired for abandoning her position. She originally requested FMLA leave and submitted a medical certification to be with her older son after he was hospitalized for a previously undiagnosed illness. Shortly after returning to the office, her younger son fractured his leg playing basketball and needed surgery. While she was out with her younger son following his surgery, the Human Resources Director advised her that the paperwork she had submitted did not justify her absences. The Director told her that additional paperwork was necessary, and that she could not return to work until the deficiencies in her paperwork were resolved. The Human Resources Director failed to specify what information was missing, however, and how the plaintiff could cure the deficiencies in her paperwork. Graziadio attempted to find out what information was missing, but she was unable to get a clear answer from the Director who simply made references to unspecific “updated paperwork” and never sent the plaintiff any forms to complete.
Applying the economic-reality test’s four factors to the facts of this case, the Court found that the Human Resources Director “played an important role in the decision to fire Graziadio,” and that she had made a self-described “joint decision” to terminate the plaintiff along with the Culinary Institute’s Vice President of Administration and Shared Services. The Court also found evidence that the HR Director exercised control over the plaintiff’s schedule, her conditions of employment, and whether and when she could return to work following her FMLA leave. In addition, the Human Resources Director was the plaintiff’s sole point of contact regarding her FMLA leave and as a result, there was ample evidence to support the conclusion that the Human Resources Director “controlled [the] plaintiff’s rights under the FMLA.”
While the outcome of this case raises some concerns, especially for human resources managers administering FMLA plans, the facts of this case provide some important takeaways.
- Human Resources personnel should be regularly trained on the FMLA and FMLA compliance.
- Employers are expected to responsibly answer questions from employees concerning FMLA, and their rights and responsibilities. 29 CFR §825.300(c)(5).
- All communication regarding leave requests and required documentation should be professional and responsive. In Graziadio, the Court noted that the breakdown in communication between the parties was largely the product of the Human Resources Director not responding to the Plaintiff’s requests for clarification. As we have advised, the interactive process in these and disability cases in not a letter writing campaign. Employers should respond to requests for information or clarification in a clear and simple manner.
- An employer must advise an employee whenever the employer finds a certification incomplete or insufficient, and the employer must “state in writing what additional information is necessary to make the certification complete and sufficient.” 29 CFR §825.305(c).
- Employers should be reasonable about deadlines, keep the lines of communication open, and not refuse to communicate or meet with an employee.
In addition, employers should consider creating standard letters, approved by legal counsel, that can be sent to employees who take leave.
If you have any questions on this or other Labor and Employment Issues, please contact your NMP Attorney.
