Personal Liability of Supervisors and Managers Under Federal and State Employment Statutes
A.Family Medical Leave Act
While the question of whether supervisors and managers can be personally liable under the FMLA has not been directly addressed by the Fourth Circuit, most district courts within the Fourth Circuit that have considered the matter have concluded that individual supervisors and managers can themselves be sued for FMLA violations.
A recent decision from the Eastern District of Virginia has likewise followed this trend of personal liability under the FMLA:
The FMLA statute plainly includes in the definition of “employer" “any person who acts, directly or indirectly, in the interest of an employer," thereby indicating that individual liability on the part of managers, supervisors, and other individual officers of a larger company or public agency is appropriate. 29 U.S.C. § 2611(4)(A)(ii)(I) (emphasis added). The definition of “employer" under the FMLA also closely parallels that in the Fair Labor Standards Act (“FLSA"), 29 U.S.C. § 201 et seq., and the FMLA’s implementing regulations provide that “[a]s under the FLSA, individuals such as corporate officers `acting in the interest of an employer’ are individually liable for any violations of the requirements of FMLA." 29 C.F.R. § 825.104(d) (2009) (emphasis added).
Weth v. O’Leary, 796 F. Supp. 2d 766 (E.D.Va. 2011).
Under the FMLA’s definitions of “employer," however, the class of individual supervisors who can incur personal liability under the FMLA may be limited to those supervisors that are responsible for the hiring or firing of “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year[.]" 29 U.S.C. § 2611(4)(A)(i).
Employers should note, however, that the requirement that an individual supervisor have “50 or more" employees in order for personal liability to be incurred is not a universal requirement, and some courts have found personal liability for supervisors regardless of the number of employees they supervise, so long as the company as a whole qualifies as an “employer" under the FMLA.
A supervisor found personally liable for a violation of the FMLA is liable to the same extent as is the employer. Available damages under the FMLA include any wages, salary, or other compensation that is lost by any employee due to an FMLA violation, as well as recovery of all attorneys’ fees incurred by the employee in bringing his or her claims.
B.Fair Labor Standards Act
The FLSA provides that “any employer who violates the provisions of [the Act] shall be liable to the employee or employees affected in the amount of their unpaid minimum wage, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." Supervisors, managers, and officers can be personally liable for violations of the FLSA, as the FLSA, like the FMLA, broadly defines an “employer" as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."
In Brock v. Hamad, the Fourth Circuit held that a defendant manager was liable for FLSA violations as an “employer" because “he hired and directed the employees who worked for the enterprise." 867 F.2d 804, 808 n.6 (4th Cir. 1989). Following this authority, district courts within the Fourth Circuit have held that there is “clear legal authority for the imposition of personal liability on a corporate officer that exercises a high level of control for the FLSA violations of a corporation," and the Fourth Circuit itself has held that “[s]eparate persons or entities that share control over an individual worker may be deemed joint employers under the FLSA." Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 305 (4th Cir. 2006).
For both individual defendants and corporate defendants, whether the defendant is an “employer" subject to liability under the FLSA is determined by examining the “economic reality" of an individual’s status in the workplace. Factors that courts consider in determining whether an individual is liable under the FLSA include an individual’s (a) the ownership interest of ; (b) control of significant aspects of company’s operations, including the hiring and firing of employees, and establishing employee compensation; and (c) the actual role played by the would-be individual defendant in causing the FLSA violations, as well as their motivations behind their actions.
A supervisor found personally liable for a violation of the FLSA is liable to the same extent as is the employer. Available damages under the FLSA include any wages, salary, or other compensation that is lost by any employee due to an FLSA violation. In addition, FLSA provides for an automatic award of punitive damages in the same amount as any other damages incurred by the employee, effectively doubling any damage award. A plaintiff under the FLSA can also recover his or her attorneys’ fees in bringing the claim.
In the Fourth Circuit, individual supervisors and managers will generally not be personally liable to employees asserting claims under Title VII. Although prior case law in the Fourth Circuit has been somewhat contradictory on this point, the settled rule in this Circuit appears to be the same for Title VII as it is in the ADEA context:
[R]eading Title VII to foreclose individual liability represents the only logical extension of Birkbeck. Like the ADEA, Title VII exempts small employers; it would be incongruous to hold that Title VII does not apply to the owner of a five-person company but applies with full force to a person who supervises an identical number of employees in a larger company. We interpret the inclusion of agent in Title VII’s definition of employee simply to establish a limit on an employer’s liability for its employees’ actions.
There is one important possible exception to this general rule of non-liability, however. Individual supervisors and managers may still remain liable for their individual violations of Title VII which are not“personnel decision of a plainly delegable character." See Speight v. Albano Cleaners, Inc., 21 F. Supp.2d 560, 564-65 (E.D. Va. 1998); Shoemaker v. Metro Information Servs., 910 F. Supp. 259, 264-65 (E.D. Va. 1996); Crosten v. Kamauf, 932 F. Supp. 676, 680-81 (D. Md. 1996).
D.Age Discrimination in Employment Act
Like Title VII, the Age Discrimination in Employment Act (“ADEA") does not provide for individual liability. See McNeal v. Montgomery County, Md., 307 F. App’x 766, 775 n.6 (4th Cir. 2009) (“[O]nly an employer, not an individual employee, may be held liable under the ADEA.").
In Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir. 1994), the Fourth Circuit explicitly held there was no individual liability under the ADEA:
Section 630(b) restricts the application of the ADEA to those “employers" who employ twenty or more workers. The purpose of this provision can only be to reduce the burden of the ADEA on small businesses. Given this evident limitation, it would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply with full force to a person who supervises the same number of workers in a company employing twenty or more. Such personal liability would place a heavy burden on those who routinely make personnel decisions for enterprises employing twenty or more persons, and we do not read the statute as imposing it. . . . We therefore hold that the ADEA limits civil liability to the employer and.
The Fourth Circuit has also stated that it interprets § 630(b) as “an unremarkable expression of respondeat superior," and that “the ADEA [therefore] limits civil liability to the employer." Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993)).
However, although it has not been explicitly ruled on, under Fourth Circuit precedent in other contexts, an individual supervisor responsible for creating a hostile work environment in violation of the ADEA could also face individual liability.
E.Americans with Disabilities Act
As with Title VII and ADEA actions, the Fourth Circuit has not been favorable to claims brought against individual supervisors and managers under the Americans with Disabilities Act (“ADA"). See Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999). Companies should assume that there is no personal liability for supervisors under this statute, except potentially in the context of hostile work environment claims.
As with the FLSA and FMLA, individual supervisors and managers can be held personally liable for violations of USERRA if they are a person “to whom the employer has delegated the performance of employment-related responsibilities." The “economic realities" test applicable in the FLSA context will also be applied in the USERRA context to determine liability.
A supervisor found personally liable for a violation of USERRA is liable to the same extent as is the employer. Available damages under USERRA include any wages, salary, or other compensation that is lost by any employee due to the USERRA violation. An employee bringing suit under USERRA can also recover punitive damages, as well as his or her attorneys’ fees in bringing the action.