W2 Issues/Concerns


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Court verdict demonstrates how HR reps can be personally liable for FMLA faux pas

HR pros are known for playing by the rules when it comes to employment laws, but what happens if they slip up? A recent appeals court decision suggests that not only can the company be held liable, but the HR rep themselves can also be held personally accountable.

 In the case, a payroll worker for the Culinary Institute of America took FMLA leave to care for her sons. However, the company questioned the validity of the workers claim, with HR director Shaynan Garrioch stating that the documentation the plaintiff originally provided wasn’t sufficient. The company then set a deadline for the plaintiff to submit the proper documentation but, when she failed to do so, she was terminated.

 The plaintiff then filed an FMLA interference and retaliation suit against the culinary institute, as well as Garrioch. The case was unable to be resolved in the lower courts, so an appeals court weighed in and determined that when it comes to the HR director’s individual liability, the FMLA’s definition of “employer” as one who “acts, directly or indirectly, in the interest of an employer to any of the employees of such employer” basically mirrors the definition under the FLSA. As a result, the court said the test used to evaluate employers under the FLSA should be applied to FMLA cases, too.

 With this rule established, the court next applied the FLSA’s control or “economic reality” test to the claim that the director of HR was an employer and determined that the HR director controlled Graziado’s FMLA rights from an employer capacity because she controlled Graziado’s schedule and conditions of employment, and she had the power to fire Graziado. As a result, she could be personally liable for FMLA violations.

 While the ruling is certainly alarming, HR Morning notes that it provides yet another reason to double check all FMLA decisions to ensure compliance, especially any decision that involves an employee termination – and if there is any doubt as to the legality of a particular action, HR pros should proceed with extreme caution. 


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