Human Resources News & Insights

New exposure for HR pros under FMLA

Heads up: A new court ruling says HR managers can be held individually liable for violating FMLA.

That’s right. A federal district court judge found in favor of an employee who sued three HR execs who’d allegedly conspired to find a reason to fire him after he requested Family and Medical Leave Act time off.

Bottom line: The ruling means HR execs could be on the hook – personally – for damages allowed under the FMLA. And those can include back pay, monetary loss from a denial of benefits, lost wages and attorneys’ fees.

As if handling FMLA issues wasn’t complicated enough. Now a judge ratchets up the stakes even higher.

Here’s a look at the details of the case:

A tool designer for a large auto parts supply company suffered a non-job related leg injury and was told he’d need surgery. His wife made several phone calls to the firm’s HR department, explaining the need for FMLA leave and inquiring about short-term disability coverage.

Shortly after those conversations, three senior HR execs and another manager embarked on a “forensic” search of the employee’s computer – looking for evidence that would justify his termination, thereby eliminating the need to offer him FMLA leave.

Fired for year-old e-mail

A few days later, the man was called in before the HR reps and another senior manager. He was told he was fired for having forwarded a pornographic e-mail to a co-worker about a year earlier. The employee filed suit, claiming the real reason he’d been fired was because he’d asked for FMLA leave and short-term disability benefits.

In the suit, he named not only the company, but the HR execs and the manager.

The case covered only the question of whether the company reps could be held individually liable for the allegedly improper firing.

The company argued the managers weren’t liable, since they didn’t “exercise control” over the employee’s FMLA activities.

But the judge disagreed, saying, “Each of the defendants exercised control over” the employee in the decision to terminate him – in reaction to his FMLA request.  The merits of the case – and any possible damages – will now be adjudicated in a new trial.

Cite: Narodetsky v. Cardone Industries et al.

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  1. Well, that was incredibly stupid on the HR execs’ part. Not sure I’m thrilled about the precedent of being personally liable, BUT when there is malice aforethought……

  2. This is the way it should be. So many times HR managers think they can make up their own rules. Also, because they are in HR, some have no pity or sympathy for those on FMLA. Glad this has happen and glad to know they can be made accountable as far as making rules for those in need of FMLA. At our establishment the rule is if you are gone 3 days on the 4th day you must fill out FMLA paperwork. This rule is for attendance purposes only. As a supervisor, we have fought this rule but the HR manager is king in the building. This rule only makes my employees come in sick. So sad. Where do you turn? Waiting for one to bring a lawsuit to the table.

  3. And now we pay the price, because “Some Idiot Did It” – (the SIDI axiom of Rule Establishment)

    I do actually hope that this company fired those HR executives. Its just FMLA – comply and move on
    – no HR pro worth their salt would have thought this was a good idea – bad timing, and obviously totally indefensible in court.

  4. I simply do not understand why companies are so obnoxious about allowing FMLA when it is obviously mandated by law and justified by the circumstances. True, there are a few people who take advantage of the system and it can be very annoying, but how much time did they spend trying to find this evidence of misconduct? Acting stupidly and being responsible for it is a true correlation between cause and effect. Hopefully, this will make other HR execs and managers stop and think before they act.

  5. Sahsa, I know absolutely nothing about your company, but your HR department’s rule actually seems sound, both for the company and for the employee. By having the leave of absence paperwork completed, it starts the FMLA clock ticking (protecting the company) AND by putting the employee on leave, it protects them from being tagged for excessive absenteeism. If the employees are coming to work sick rather than be absent for more than three days, could there be another underlying policy issue besides FMLA?

  6. WestofLeft says:

    I think Lynn is right about Sahsa’s company. There is another reason why employees don’t want be absent when they’re sick and should be resting. FMLA with its NO PAY isn’t exactly a feather bed.

    The rule seems sound to me, also, in fact I’m going to consider how to implement it.

    Sahsa, do you give them FMLA notice first, and send the papers for them to fill out along with it?

  7. Where in this country are HR managers able to make up their own rules? As anyone who reads, or is aware of what goes on in the world knows, employees will sue their employers at the drop of a hat. No HR manager who makes up rules on a whim will be employed for very long if that company wants to remain in business. The rules governing FMLA and how it is implemented are not created by the employer, who is as bound by those rules as are employees. Even the forms my company uses are straight off the US Dept of Labor website. And why would somebody who is out sick for four days and is asked to fill out paperwork for FMLA be upset, and choose to come to work sick? A component of FMLA (where I work) is that you need to bring in medical provider certification (or at least a doctor’s note ), so I don’t know how FMLA can be legally used for “attendance purposes only”.

  8. The idea our company presents is valid however, if a person has only an illness that would warrant 4 days off instead of 3, just to recoooperate? Does this justify not allowing them to come back without Physician filling out FMLA paperwork? It is not being used for good of employee. It only maked people come back sick. For instance. Influenza. Who gets better in 3 days? No one. What about the doctor that has to take time to fill out FMLA for a cold or flu. Personally, I would like my people to stay home until they feel better. Not use this as a threat. On the fourth day, employees cannot come back without FMLA paperwork. Maybe 5 days would work. Otherwise, lots of paperwork for all involved plus the sick person had to do the running.

  9. Ah – now I see your point. Your company is using FMLA forms for EVERYTHING, including those where many companies just ask for a doctor’s note. That does seem a bit excessive.

  10. I agree it is excessive but it’s just another example of the lengths employers often have to go in order to not violate the law, or anyone’s rights. Actually we use the doctor certification form if the employee is out longer than five days, but doctors rarely fill them out completely, and sometimes not at all. They’ll just write a brief note which we’ll attach to the form and file. The main point of this article, that HR managers can now be held individually liable for mishandling FMLA is pretty scary. The bottom line? consistency is the key. Apply the same rules to everybody where possible. Yes there will be those special cases, but it’s up to HR to make sure managers can justify the FMLA decisons they make.

  11. Our employees have to bring in a doctor’s note if they are out sick for more than three days. At that point we decide whether it warrants FMLA. Remember, you only have to award FMLA for a serious medical condition. Some employees will take three or four paid days if they could without having a serious ailment, so the doctor’s note will dictate whether it’s FMLA eligible or not. At that point, the employee has to get the forms completed and the clock starts ticking on that first day of absence.

  12. I can not believe that anyone in HR would terminate someone once they knew the employee was going out on FMLA. Those HR people need to be trained.

  13. WestofLeft says:

    (Apologies to Sasha for misspelling her name) I like JS’ meme. We ask for a note from a doctor if the employee is out for three consecutive days. The note only has to say that the employee is able to return to work.

    I agree that anything more detailed would be a burden on the doctor and the ee, although nobody has to do any running. My observation of doctors’ offices is that every one of them has a telephone you can call, and a fax machine, and every fax machine in a doctor’s office I ever encountered is uniformly in atrocious condition with enormous black lines all over the product. But we accept it, of course.

  14. How can an employee not be allowed to return to work without FMLA paperwork…especially when the absence is only 3 or 4 days? Doesn’t the employer have to give the employee atleast 15 days to have the certification form completed and submitted back?

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