Note: Toward Definition, Not Discord: Why Congress Should Amend the Family and Medical Leave Act To Preclude Individual Liability for Supervisors

By Taylor C. Stippel. Full text here.

Since the mid-1990s, courts have construed the Family and Medical Leave Act (FMLA) to allow for the imposition of individual liability on private sector supervisors. Reasoning that the FMLA’s definition of “employer” parallels the definition of “employer” in the Fair Labor Standards Act (FLSA), and noting that individual liability may attach under the FLSA, courts have relied on FLSA case law to hold that private sector supervisors are “employers” within the meaning of the FMLA and may be held individually liable. However, the circuit courts of appeal are currently split on the issue of whether public sector supervisors may be held individually liable for FMLA violations. The circuit courts finding in favor of FMLA individual liability for public sector supervisors have done so largely by applying the same tried-and-true analytical approach of courts considering the issue as to private sector supervisors: “FLSA individual liability, therefore FMLA individual liability.”

The uncritical analyses of courts considering the individual liability question as to the private sector have plagued current circuit courts’ analyses. First, early courts’ attempts to mimic the FLSA’s individual liability scheme by delineating FMLA “control tests” have resulted in the creation of an array of such tests, undermining the ability of supervisors and their employers to anticipate when supervisors may be held individually liable. Second, the failure of early courts to conduct thorough, FMLA-specific policy discussion has discouraged such analysis in current circuit courts’ analyses.

This Note proposes that Congress resolve the current circuit split by amending the FMLA to preclude individual liability for both private and public sector supervisors and, instead, impose respondeat superior liability for FMLA violations. Such an amendment would bring the FMLA’s liability scheme in line with those of federal antidiscrimination statutes, which seek to remedy societal problems similar to the sex discrimination that Congress set out to eradicate by enacting the FMLA. Because there are no relevant differences between private and public sector supervisors for FMLA purposes, such an amendment is appropriate because it treats all supervisors alike. Additionally, an amendment imposing respondeat superior liability for FMLA violations would place responsibility for FMLA violations in the hands of those best equipped to prevent such violations: employer-entities. In short, amending the FMLA to preclude individual liability would promote greater compliance and help accomplish the goals that Congress set out to achieve when it enacted the FMLA.