In a recent decision that may come as a shock to human resources professionals, the Second Circuit Court of Appeals found that an HR director can be held liable for the unlawful termination of an employee under the Family and Medical Leave Act. Yes, you read that correctly: an individual HR director can be found liable, not just the company itself.
In the case in question, Graziadio v. Culinary Institute of America, an HR director had allegedly been instrumental in the decision to fire the plaintiff-employee, Cathleen Graziadio, for job abandonment while she was on FMLA leave. Graziadio had initially gone on FMLA leave for about ten days to care for her son, who was in the hospital. Nine days after her return to work, Graziadio’s other son broke his leg and underwent surgery. Graziadio notified her supervisor that she needed to go back on FMLA leave to care for him and that she expected to be able to return, at least on a part-time basis, in about two weeks.
Approximately two weeks later, Graziadio requested to return to work part-time; her supervisor forwarded the request to HR. An extended exchange of emails followed between Graziadio and HR director Shaynan Garrioch. Garrioch told Graziadio that she had not provided sufficient paperwork to justify her FMLA leave. Graziadio repeatedly asked Garrioch what paperwork was needed exactly, but Garrioch only reiterated the deficiencies in Graziadio’s existing paperwork and sent her a brochure on FMLA requirements. When Graziadio repeated her request to return to work on a reduced schedule, Garrioch said she would not approve the request until they had an in-person meeting. This prompted a series of back-and-forth emails attempting to schedule a meeting, wherein Graziadio repeatedly conveyed her availability to meet at Garrioch’s convenience, yet no meeting was ever actually scheduled. At this point, Graziadio asked if she could simply come back to work full-time, but Garrioch refused, still insisting that Graziadio come in for a meeting first. Ultimately, Graziadio retained a lawyer, who attempted to engage with the company on her behalf. The company’s counsel told Grazaidio’s attorney, via email, that Graziadio should contact her supervisor if she wished to return to work and that she still must provide certain documentation. Eleven days later, before her attorney had responded to the company’s email, Graziadio received a letter from Garrioch stating that she was being terminated for job abandonment.
The Second Circuit found that Garrioch was an “employer” within the FMLA’s definition of that term, which includes “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer,” Graziadio v. Culinary Institute of America, 2016 WL 1055742 (2d Cir., March 17, 2016), citing 29 U.S.C. §19 2611(4)(A)(ii)(I). As an employer, Garrioch can be held liable for Graziadio’s termination if it is ultimately found to have been unlawful (a factual issue not reached by the court).
The court explained that determining whether an individual like Garrioch is an employer within this definition involves an “economic reality” test, assessing the individual’s power to control the employee. Factors to be considered include whether the individual had the power to hire and fire the employee, to supervise and control the employee’s schedule or conditions of employment, to make compensation decisions, or to maintain employment records. Most importantly, in the FMLA context, the court considers whether the person “controlled in whole or in part plaintiff’s rights under the FMLA.”
The court found these factors to weigh in favor of Garrioch being Graziadio’s employer. For example, Garrioch played a key role in the decision to terminate Graziadio, even though management was the ultimate decision-maker. And, as evidenced by her lengthy email exchange with Graziadio, Garrioch certainly seemed to exercise some control over Graziadio’s FMLA rights.
The takeaway here for individual HR professionals and managers is that being held individually liable for FMLA violations is a real possibility, no matter how outrageous that may seem. Accordingly, anyone who is in a position to impact an employee’s use of FMLA leave should take every possible step to ensure that the company is fully complying with the requirements of FMLA — including not doing anything that could be reasonably interpreted as punishing an employee for exercising rights under FMLA or preventing such rights from being exercised. Also, HR professionals who are concerned about potential liability may want to speak to their employers about any protections that may be available, such as indemnification.
When it comes to handling FMLA leaves, the Graziadio case can be viewed as a “what not to do” guide for employers. For example, the HR director in this case could have simply answered the employee’s questions about what paperwork was needed. Sending her a brochure in lieu of answering her questions directly was not helpful to the company or to the employee. And her rigid insistence on a face-to-face meeting before the employee could return to work, while failing to actually schedule that meeting, essentially set the employee up for accusations of job abandonment.
Accordingly, HR professionals should take note: Being a stickler for legal and procedural requirements is certainly not a bad thing; indeed, in today’s complicated HR world it is quite necessary. However, viewing such requirements in a vacuum, and failing to engage with an employee who is seeking practical guidance on how to comply with those requirements, is a mistake – a mistake for which not only employers, but individual HR professionals, may pay dearly.
Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding FMLA. Please keep in mind that in addition to our staff of seasoned HR consultants, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance. Contact us at 800-921-2195 or 516-921-3400. You can also e-mail us at info@pmpHR.com
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