Supervisor Liability Under the Family and Medical Leave Act–The Judicially Created Public Official
In the 11th Circuit’s first occasion to address the meaning of the term “employer” under the Family and Medical Leave Act (FMLA or “the act”), the court held that individual liability does not exist under the act. Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999). In so holding, the Court of Appeals for the 11th Circuit set forth the first pronouncement by any circuit interpreting the term “employer” under the act—an issue which had been addressed by many district courts since enactment of the act in 1993. The court’s analogy and adherence to the determination made in Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995), that a public official was not subject to individual liability under the Fair Labor Standards Act (FLSA), creates a limitation in application of the FMLA not addressed by the act itself. creating a barrier from the reach of the FMLA to individual public officials, the court has drawn a line that Congress did not. While the opinion may be distinguished by subsequent plaintiffs faced with discrimination by private sector employers, it is unclear whether other circuits free from the shackles of Welch v. Laney will recognize any limitation on individual liability, public or private sector.
In Wascura, the 11th Circuit made two significant determinations: 1) the term “employer” in the FMLA should be interpreted consistently with the similar definition set forth in the Fair Labor Standards Act (FLSA); and 2) public officials are not “employers” and, therefore, are not subject to individual liability under the FMLA. The first determination is in line with the majority of lower courts analyzing the issue as well as the statutory language, legislative history, and regulations promulgated pursuant to the FMLA. However, the second determination is more controversial as it is based on an interpretation of the FLSA which is in conflict with the majority of circuit courts addressing the issue as well as prior decisions in this circuit. holding that public officials are not subject to personal liability under the FMLA, the court essentially created an exception to application of the act against public officials which is not supported by any language in the act itself. As a result, the first determination as to whether individual liability exists under the FMLA is that it does not—as long as you are a public official.
Factual Background
and Proceedings
Rosemary Wascura, former city clerk for the City of South Miami, instituted an action against the City of South Miami and former city commissioners for allegedly violating her rights under the Family and Medical Leave Act. As alleged in the complaint, Ms. Wascura served as city clerk of the city for nearly 14 years before being discharged, not because of job performance, but because she informed the city that her son had Acquired Immune Deficiency Syndrome and that she may need time from work to care for him. At the time she was fired, Ms. Wascura had accumulated some 900 hours of unused vacation time and sick leave. Prior to her discharge at a city council meeting, the former city mayor demanded Ms. Wascura’s resignation for unspecified reasons. When Ms. Wascura refused to resign, she was discharged upon motion of the mayor and vote of the commissioners in May 1995.
The complaint alleged that the mayor, commissioners, and city discharged Ms. Wascura as a result of exercising her rights under the FMLA. The commissioners were Ms. Wascura’s supervisors with the sole responsibility for hiring and firing her. The commissioners moved to dismiss the complaint on the grounds that the FMLA does not impose individual liability. The commissioners subsequently amended their motion to assert the defense of qualified immunity. The city was not a party to the motion or appeal. The district court denied the commissioners’ motion to dismiss and thereafter they filed their answers denying liability.
District Court Opinion
The U.S. District Court for the Southern District of Florida relied on the definition of the term “employer” under the FLSA, rejecting the commissioners’ invitation to employ the definition of the same term as set forth in the antidiscrimination statutes such as the American with Disabilities Act, 42 U.S.C. §12111(5) (1999); the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §2000e(b) (1999); and the Age Discrimination in Employment Act, 29 U.S.C. §630(b) (1999). The district court also rejected the commissioners’ claim that they were entitled to qualified immunity, reasoning that the language of the FMLA was clear and not abstract and, as such, the commissioners should have understood that the alleged acts constituted a violation of its provisions.
The commissioners appealed, reiterating the argument that the FMLA should be interpreted in line with antidiscrimination statutes—none of which have been held to impose individual liability. The commissioners also argued that denial of their qualified immunity claim required reversal because liability under the FMLA was not clearly established due to the fact that not a single case within the jurisdiction had imposed liability and the act itself did not clearly establish individual liability.
In response, Ms. Wascura contended that the court lacked jurisdiction over the first issue involving the question of whether individual liability may be imposed under the FMLA because the denial of a motion to dismiss did not present a final appealable order subject to interlocutory review. Nonetheless, Ms. Wascura argued that the district court should be affirmed because the language of the FMLA was clearly patterned after the FLSA which had been almost uniformly held to impose individual liability on those employers violating its terms. In addition, Ms. Wascura argued that the commissioners were not entitled to qualified immunity because the language of the act itself was so clear and unambiguous as to constitute clearly established law of which a reasonable public official should have known.
11th Circuit Reverses
On March 9, 1999, the Court of Appeals for the 11th Circuit reversed the district court’s application of the act to individual public officials. Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999). Although the court adopted the district court’s reasoning that the FLSA provided guidance in interpreting the term “employer,” the court held that its prior determination that a county sheriff was not individually liable under the FLSA in Welch, 57 F.3d 1004, controlled the issue before it. Ms. Wascura sought rehearing en banc on the grounds that the holding conflicted with the plain language of the FMLA; an intra-circuit conflict existed with Lee v. Coahoma County, 937 F.2d 220 (5th Cir. 1991), modified, 37 F.3d 1068 (5th Cir. 1993), holding that personal liability exists under the FLSA; and an inter-circuit conflict existed with Patel v. Wargo, 803 F.2d 632 (11th Cir. 1986); Donovan v. Hamms’s Drive Inn, 661 F.2d 316 (5th Cir. 1981); and Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296 (5th Cir. 1969)—each of which held that personal liability could be imposed under the FLSA. The court denied the petition for rehearing en banc on May 3, 1999.
FMLA Patterned After FLSA
The FMLA prohibits employers from interfering with or denying the right of an employee to take leave under the act. See 29 U.S.C. §2615(a)(1). The act 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.” 29 U.S.C. §2611(4)(A)(ii)(I). The definition parallels the definition set forth in the FLSA.1 contrast, antidiscrimination statutes such as Title VII, the ADEA, and the ADA define an employer as a person engaged in an industry affecting commerce who employs a certain number of people, “and any agent of such person.” 42 U.S.C. §12111(5)(A) (ADA), §2000e(b) (Title VII); 29 U.S.C. §630(b) (ADEA).
The legislative history of the FMLA clearly establishes that it was patterned after the FLSA and not the antidiscrimination statutes:
The bill is based on the same principle as the child labor laws, the minimum wage, Social Security, the safety and health laws, the pension and welfare benefit laws, and other labor laws that establish minimum standards for employment.
S. Rep. No. 103-3, 103d Cong., 1st Sess. at 4 (1993).2
The Senate report also opines that the FMLA fits “squarely within the tradition of the labor standards laws that have preceded it.” S. Rep. No. 103-3, 103d Cong., 1st Sess. at 5 (1993). Consistent with the legislative intent, the applicable code of federal regulation specifically provides that the term “employer” as used in the FMLA is patterned after the FLSA. 29 C.F.R. 825.104(d).
Moreover, the weight of authority considering the issue holds that individual liability exists under the FMLA.3 The issue was thoughtfully analyzed in Freemon v. Foley, 911 F. Supp. 326 (N.D. Ill. 1995), in which a hospital employee claimed that her employment was illegally terminated as a result of exercising her rights under the FMLA to care for her small children suffering from chicken pox. The plaintiff sued the hospital, her direct supervisors, and their supervisors—none of whom were officers or directors of the hospital. Id. at 328. The supervisors moved for summary judgment, contending that they could not be individually liable under the FMLA because the definition of “employer” under Title VII, the ADEA, and the ADA should be applied. The Seventh Circuit, like the 11th Circuit, had already decided that individual liability does not exist under Title VII, the ADEA, or the ADA. Id. at 330.
The Freemon court reasoned that the definition of an “employer” in the FMLA “tracks word for word the definition used in the Fair Labor Standards Act.” Id. at 330. The court then analyzed the FLSA and determined that it did provide for individual liability even when a defendant “does not exercise exclusive control over all the day-to-day affairs of the employer, so long as he or she possesses control over the aspect of employment alleged to have been violated.” Id. at 331. The court held that the individual defendants, who recommended the suspension and discharge of the plaintiff, exercised sufficient control over the plaintiff to be liable under the FMLA.
Prior to the Wascura opinion, the very issue as to whether the FMLA imposes individual liability on supervisors had been addressed by several district courts throughout the nation both as to private supervisors and public officials. The majority of those district courts determined that the FMLA was patterned after the FLSA and, as a result, individual liability could attach. In line with the reasoning of these decisions, the Wascura court adopted the reasoning of the district court and determined that the term “employer” under the FMLA parallels the FLSA based upon the plain language of the statute, its legislative history, and the federal regulations promulgated thereunder. Therefore, rather than looking to the antidiscrimination statutes for guidance in interpreting the FMLA, the court turned its attention to the FLSA and decisions interpreting it for guidance. Wascura, 169 F.3d at 686.
Judicially Created Public Officials Exception
The court then held that public officials are not subject to individual liability as “employers” under the FMLA, relying exclusively on Welch, 57 F.3d 1004. In Welch, one of the many issues before the court was whether the county sheriff was subject to personal liability for violation of the Equal Pay Act, an extension of the FLSA. In reaching the determination that the sheriff was not an “employer” as defined by the act, 29 U.S.C. §203(d), and consequently not liable in his individual capacity for violations of the act, the Welch court’s analysis consisted merely of the statement that “Sheriff Laney in his individual capacity had no control over Welch’s employment and does not qualify as Welch’s employer under the Act.” Id. at 1011.4 This judicial initiative is the foundation for the 11th Circuit’s decision in Wascura.
Welch Failed to
Follow Precedent
Unfortunately, the Welch court did not address or distinguish seemingly binding precedent holding individuals subject to personal liability for violations of the FLSA. See Donovan v. Hamm’s Drive Inn, 661 F.2d 316 (5th Cir. 1981)5 (owner officers active in management of corporation were “employers” subject to individual liability); Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296 (5th Cir. 1969) (officer and director with supervisory control held individually liable for violations of FLSA). See also Patel v. Wargo, 803 F.2d 632 (11th Cir. 1986) (recognizing that individual liability as an “employer” may exist for corporate officers with operational control but concluding defendant president and director lacked requisite control). Although each case dealt with the imposition of individual liability on corporate officers and not government officials, the statutory language of the FLSA and FMLA does not distinguish between public and private actors. The Welch opinion is silent on the reasoning employed to depart from the foregoing precedents establishing personal liability against supervisors under the FLSA. As one court opined, the conclusion may have resulted from the designation of the sheriff’s duties under Alabama law. Barfield v. Madison County, Miss., 984 F. Supp. 491, 497 (S.D. Miss. 1997). In any event, the Welch opinion appears to be an aberration within FLSA case law.
Contrary to the holding in Welch, most circuits have determined that supervisors are subject to personal liability for violations of the FLSA when they exercise sufficient control over the terms of the employee’s employment. See, e.g., Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 676–79 (1st Cir. 1998) (remanded for determination as to whether individuals exercised requisite control to impose personal liability); United Stated Dept. of Labor v. Cole Enters., Inc., 62 F.3d 775, 778–79 (6th Cir. 1995) (corporate president with operational control was “employer” under FLSA); Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965–66 (6th Cir. 1991) (president and CCO with significant operational control held individually under FLSA); Brock v. Hamad, 867 F.2d 804, 808 (4th Cir. 1989) (owner who hired and fired employees was “employer”); Donovan v. Agnew, 712 F.2d 1509, 1510–14 (1st Cir. 1983) (“the overwhelming weight of authority” imposed liability on officer with operational control in light of remedial purpose of FLSA and fact that Congress never changed definition in response to decisions holding corporate officers individually liable when it “revisited” the act in 1949, 1961, 1966, and 1977), criticized on other grounds, Speen v. Crown Clothing Corp., 102 F.3d 625 (1st Cir. 1996); Donovan v. Grim Hotel Co., 747 F.2d 966, 971–72 (5th Cir. 1984) (president with operational control was employer), cert. denied, 471 U.S. 1124 (1985); Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194–95 (5th Cir. 1983) (corporate employer subject to injunction along with company where individual exercised control over work situation), cert. denied, 463 U.S. 1207 (1983), criticized on other grounds, Castillo v. Givens, 704 F.2d 181 (5th Cir. 1983).
In Wascura, the apparent conflict within the 11th Circuit as to whether defendants may be subject to personal liability under the FLSA in light of Welch was not addressed. Instead, the court made the factual distinction that the alleged actors involved were public officials, despite the fact that nothing in the language of either the FLSA or FMLA invites such a distinction.
Other Courts’ Holding on Liability of Public Officials
Courts in other jurisdictions which have addressed the more specific issue as framed by the Wascura court—whether a public official may be liable in his or her individual capacity under the FLSA (and accordingly the FMLA)—have determined that individual liability may exist. See Lee v. Coahoma County, Miss., 937 F.2d 220 (5th Cir. 1991) (sheriff was clearly “within the class of managerial personnel considered employers by the FLSA”); Bankston v. State of Illinois, 1993 U.S. Dist. LEXIS 5796, *7 (N.D. Ill. 1993) (“it is not beyond ken that [the director of department in individual capacity] could qualify as a person acting directly or indirectly in the interest of the Department”), aff’d, 60 F.3d 1249 (7th Cir. 1995) (affirming damage award against state officers in individual capacities as recognized in Digiore v. State of Illinois, 962 F. Supp. 1064, 1079 (N.D. Ill. 1997)); Barfield v. Madison County, Miss., 984 F. Supp. 491 (S.D. Miss. 1997) (sheriff in his individual capacity was joint employer with county under FLSA);6 Digiore v. State of Illinois, 962 F. Supp. 1064 (N.D. Ill. 1997) (denying motion to dismiss FLSA claims against secretary of state and director of police in their personal capacities relying on the statute and cases interpreting it).
Correspondingly, the same reasoning has been applied to hold public officials personally liable under the FMLA by district courts which addressed the issue before Wascura. See Knussman v. State of Maryland, 935 F. Supp. 659 (D. Md. 1996) (holding that liability of state police officials in their individual capacities was not foreclosed under the FMLA),summary judgment granted in part, partial summary judgment denied, 16 F. Supp. 2d 601 (D. Md. 1998); Waters v. Baldwin County, 936 F. Supp. 860 (S.D. Ala. 1996) (county directors were subject to suit in individual capacities under FMLA). Regardless of whether the claim arose under the FLSA or the FMLA, no court prior to Wascura applied a different analysis or set of standards to public officials than those applied to private companies. No case preceding Wascura distinguished application of the law based on the fact that the defendants were public officials.
Public Official/Private Sector Distinction Not Recognized by Congress
The Wascura decision effectively creates a distinction between public and private employers which appears to be contradicted by the plain language of the act. The FMLA defines employer as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. §2611(4)(A)(ii)(I) (emphasis added). The applicable federal regulation provides that “individuals such as corporate officers ‘acting in the interest of an employer’ are individually liable for any violations of the requirements of the FMLA.” 29 C.F.R. §825.104(d). The FMLA expressly provides that the definition of “employer” includes public agencies, 29 U.S.C. § 2611(4)(iii), thereby removing any doubt that the act applies to the public as well as the private sector. Nor does the language of the act expressly exempt public officials from the definition of “employer” or distinguish between private and public “persons,” 29 U.S.C. §2611(4)(A)(ii)(I).
official in his official capacity is a suit against the government itself. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“while an award of damages against an official in his or her personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official capacity suit must look to the government entity itself”). The logical result of the reasoning employed in Wascura is that actions against public officials are altogether foreclosed as duplicative of those against the government while those against private supervisors can proceed. As a result, the distinction created without comment in Welch and adopted and reaffirmed in Wascura seems to defy Congress’ intent by insulating public officials from personal liability despite the fact that they are not excluded from the FMLA’s definition of “employer.”
Conclusion
The 11th Circuit stands alone in holding that personal liability does not exist against individuals for FLSA violations. The Wascura case stands in contrast to the decisions of other courts of appeal and district courts holding that public officials may be subject to personal liability under the FLSA, decisions of lower courts holding that public officials may be held personally liable under the FMLA, and the language of the FMLA itself which does not distinguish public officials from their private supervisor counterparts. The holding in Wascura rests on the questionable and unexplained holding in Welch. While the court unabashedly emphasized the need to follow Welch “regardless of whether we agree with it,” the court elected not to address the conflicts en banc where these issues could have been resolved. As a result, the first circuit to address the issue of whether individual liability exists under the FMLA has not merely interpreted the act and applied the law, it has created a new exception to its application. q
1 The FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency.” 29 U.S.C. §203 (d).
2 See also S. Rep. No. 103-3, 103d Cong., 1st Sess. at 21 (“employer” defined as in FLSA); Id. at 43 (“Those definitions specifically referenced to the Fair Labor Standards Act are to be interpreted similarly under this Act”).
3 See Rupnow v. TRC, Inc., 999 F. Supp. 1047 (N.D. Ohio 1998); Stubl v. T.A. Sys., Inc., 984 F. Supp. 1075 (E.D. Mich. 1997); Beyer v. Elkay Mfg. Co., 1997 U.S. Dist. LEXIS 14459 (N.D. Ill. Sept. 19, 1997); Knussman v. State of Maryland, 935 F. Supp. 659, 664 (D. Md. 1996); Waters v. Baldwin County, 936 F. Supp. 860 (S.D. Ala. 1996); Reich v. Midwest Plastic Eng’g, Inc., 1995 U.S. Dist. LEXIS 12130 (W.D. Mich. 1995), aff’d, 113 F.3d 1235 (6th Cir. 1997); McKiernan v. Smith-Edwards-Dunlap Co., 1995 U.S. Dist. LEXIS 6822 (E.D. Pa. 1995).
4 The lack of analysis on the issue has been criticized. See Barfield v. Madison County, Miss., 984 F. Supp. 491, 497 (S.D. Miss. 1997).
5 Donovan v. Hamm’s Drive Inn, decided September 29, 1981, is binding precedent on the 11th Circuit under Bonner v. Pritchard, 661 F.2d 1206 (11th Cir. 1981) (authorities from the Fifth Circuit through September 30, 1981, are precedent in the 11th Circuit).
6 Declining to follow Welch because the basis for the result was unclear from its “cursory treatment,” the court concluded that “after researching this issue exhaustively, it appears that the majority of cases have concluded that public officials, just like their counterparts in the private sector, may be held individually liable for violations of the FLSA.” Barfield, 984 F. Supp. at 497.
Ava J. Borrasso practices with Aragon, Burlington, Weil & Crockett, P.A., Miami, where she concentrates in commercial litigation. She received her J.D. from Loyola University of Chicago School of Law in 1990, where she served on the Law Review. Ms. Borrasso is admitted to practice in Florida and Illinois and is a member of the Academy of Florida Trial Lawyers.
This column is submitted on behalf of the Labor and Employment Law Section, Robert J. Sniffen, chair, and F. Damon Kitchen, editor.
