Individual Employer Liability under the FMLA

The Family and Medical Leave Act (FMLA) creates a right of action for employees against “any employer” who is in violation of the Act.  The FMLA defines an “employer” as “any person who acts, directly or indirectly, in the interest of any employer to any of the employees of such employer.” Courts around the country are split on whether an individual supervisor can be deemed an “employer” and held individually liable for FMLA violations.  Courts in the 3rd, 5th, 8th and 10th  Circuits have held that individuals can be held individually liable under the FMLA.  The 6th and 11th Circuits on the other hand have held that individuals cannot be held liable.  The other Circuits, specifically the 1st, 2nd 4th, 7th and 9th, as well as the U.S. Supreme Court, remain silent on the issue.  

Although the 7th Circuit has not officially taken a position on this issue, it is possible that will soon change.  In Shockley v. Stericycle, Inc. No. 13-cv-01711 (N.D. Ill., Sept. 19, 2013), the U.S. District Court for the Northern District of Illinois, on Defendants’ Motion to Dismiss, determined that the FMLA’s definition of “employer” is similar to the definition found in the Fair Labor Standards Act (FLSA) so the analysis applied in FLSA claims should be applied to that matter.  Under the FLSA, a person is considered an ‘employer’ and subject to individual liability if two conditions are met: (1) the individual had supervisory authority over the plaintiff; and (2) the individual was at least partly responsible for the alleged violation.” Austin v. Cook County, No. 07-C-3184, 2009 WL 799488, at *3, (N.D. Ill. March 25, 2009).  The Shockley court found that the individual supervisors involved had sufficient “supervisory authority over the complaining employee and [were] responsible in whole or in part for the alleged violation” and therefore Defendants Motion to Dismiss was denied.  See, Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987).   The Shockley court held that “at the pleading stage, it is sufficient for Plaintiff to allege that the Individual Defendants, in their administrative roles, controlled, at least in part, Plaintiff’s access to FMLA leave. ‘[S]o long as he or she possesses control over the aspect of employment alleged to have been violated,’ the individual can be liable under the FMLA.”

Although this case is merely in its initial stages, it draws attention to two large concerns for employers.  One, employees who are responsible for making or even influencing decisions regarding an employee’s FMLA leave and entitlement may be held personally liable for those decisions even if they do not directly supervise that employee.  Two, while employers may outsource certain FMLA functions to third party administrators, employers cannot outsource the legal responsibility for the acts and/or omissions of those third parties. For more information or questions on the FMLA, FLSA or any further employment related matters, please contact Dana Perminas, at 312-334-3474 or