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Mar 21, 2016

By Eric B. Meyer

Guess what, you guys? HR Directors can be sued for FMLA violations too.

“I didn’t sign up for this!” — Most of you.

Yes, the HR Director may be an “employer” too.

Hey! Don’t shoot the messenger. Instead, those sharp daggers coming out of your eyes should be directed at the New York-based Second U.S. Circuit Court of Appeals. Indeed, last week, the appellate court ruled in Graziadio v. Culinary Institute of America that a company’s Director of Human Resources may have wielded enough authority on matters related to FMLA administration to bind the company.

Thus, she may have exposed herself to liability under the Family and Medical Leave Act.

It seems that companies aren’t the only ones subject to liability under the FMLA. That is, an individual such as an HR Director, may be held liable under the FMLA if that person is an employer. An employer?!? Doesn’t the employer sign issue paychecks, pay corporate taxes, stuff like that?

How could an individual be an “employer?” Well…

Under FMLA, it comes down to how much control

Let’s look at the statute. The FMLA defines “employer” as encompassing,

Any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.”

Seriously. That definition was ported over from the Fair Labor Standards Act.

“Oh, awesome!” — None of you.

To determine whether an individual is an employer, the Second Circuit developed “a non exclusive and overlapping set of factors” four-factor “control” test. Translation: there are at least four (4) factors, plus some mystery ones, any of which could mess you up good. They are:

  1. The power to hire and fire;
  2. Supervising and controlling employee work schedules or conditions of employment;
  3. Determining the rate and method of payment to employees;, and,
  4. Maintained employment records.


That sounds a lot like most of you. More on that in a bit.

My favorite passage from the court’s opinion

This part of the opinion made me LOL. It may resonate (with non-readers of this blog, of course):

Finally, [after a protracted email exchange, HR Director Garrioch] announced that she would no longer be able to discuss this matter over email and asked [Plaintiff] Graziadio to please provide three dates/times for this week that you are available to come into work and meet with me.

[Editor’s Note: Do you think either is about to pick up the phone? I didn’t either…]

In an excruciating exchange, Graziadio and Garrioch then proceeded, over any number of days, to email back and forth about scheduling a meeting without actually arranging it: Garrioch would ask for dates and times, Graziadio would respond that she was “available whenever,” Garrioch would again ask for specific times, Graziadio would insist that she was “available any time or day,” and so on.

Early on in this exchange, Graziadio also forwarded Garrioch an updated FMLA certification for Vincent, but Garrioch did not acknowledge receipt of the certification or otherwise respond to that email. At another point, Graziadio attempted to circumvent the circular exchange by simply “requesting to return to work” on a “full time regular schedule.” Garrioch rejected this request and again insisted that Graziadio appear for a meeting before she could return to work.

Ultimately, no one set a time for a meeting, and Graziadio, facing persistent involuntary leave, retained an attorney.”

Back to this whole HR Director/Employer thing

The lower court concluded that Garrioch did not have any meaningful power to hire or fire, because the VP of Administration retained final authority on that. Plus, there was no evidence that Garrioch “supervised or controlled employee work schedules or conditions of employment, determined the rate and method of employee payment, or maintained employment records.”

But the Second Circuit disagreed.

It concluded that the lower court overlooked “substantial evidence” to the contrary. For example, the company ended up firing Graziadio for — say it with me —  job abandonment. And, the evidence demonstrated that the VP of Administration deferred that matter to HR Director Garrioch.

(Sound familiar? Strike One!)

Then, Graziadio presented evidence that HR Director Garrioch exercised control over Graziadio’s schedule and conditions of employment, at least with respect to her return from FMLA leave. Garrioch took lead on this.

(Sound familiar? Strike Two!)

As to the remaining two “control” factors, the Second Circuit noted that they probably cut against “employer” status for Garrioch. Still, the appellate court did not need to call “strike three.” Instead, it concluded that HR Director Garrioch could be an employer:

Nevertheless, on the overarching question of whether Garrioch controlled plaintiff’s rights under the FMLA, there seems to be ample evidence to support the conclusion that she did: deposition testimony and email exchanges demonstrate

  • a) That Garrioch reviewed Graziadio’s FMLA paperwork;
  • b) That she determined its adequacy;
  • c) That she controlled Graziadio’s ability to return to work and under what conditions; and
  • d) That she sent Graziadio nearly every communication regarding her leave and employment (including the letter ultimately communicating her termination).

Indeed, (HR Director) Garrioch specifically instructed Gardella and Maffia that they were not to communicate with Graziadio and that Garrioch alone would handle Graziadio’s leave dispute and return to work. … Given all this evidence, we conclude that a rational jury could find, under the totality of the circumstances, that (HR Director) Garrioch exercised sufficient control over Graziadio’s employment to be subject to liability under the FMLA.

Employer takeaways

Most FMLA cases I defend involve one plaintiff and one corporate defendant. I suspect that many employee-rights lawyers don’t know about individual liability under the statute. Or, maybe they don’t care because the company is generally solvent enough to resolve the matter without requiring anyone else to chip in.

Still, if you haven’t done so already, consider getting some employment practices liability insurance to cover both the business and its agents against employment claims.

And, for the love of God, don’t be so wedded to email. It’s OK to pick up the phone and call someone.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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