Supervisors Could Be Personally Liable for Leave Interference

By: Phyllis Katz. This was posted Friday, December 9th, 2011

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In a case decided in late August, Weth v O’Leary, a federal court in Virginia sent a wake-up call to all public employer supervisors when it held that the Treasurer of Arlington County could be held personally liable for interfering with the rights of an employee who was on Family and Medical Leave.  The case has ramifications for all supervisors and managers who have responsibilities for hiring, firing, or setting the conditions of employment for employees. Supervisors may be held personally responsible for paying damages.

The case also sends another strong message to all supervisors and HR Managers – deal with performance issues when they arise – do not wait until a more convenient time or to a time when there are more facts to support the performance conclusions that the supervisor has drawn (the “do not be petty” type of strategy). 

Patricia Weth had been employed for six years prior to her diagnosis of cancer. With the diagnosis and the need for immediate surgery, she was given Family and Medical Leave. When she returned to work, months later, she was told that she needed to begin looking for another job immediately and that she was being placed on leave with pay until she found another job. When she did not find other employment, she was terminated. O’Leary, the Arlington County Treasurer and her employer, terminated Weth for poor performance and other job related deficiencies all arising before she requested FMLA leave. Weth claimed that O’Leary interfered with her FMLA reinstatement rights as well as retaliated against her for taking FMLA leave. The court concluded that there were sufficient facts to take the issue of interference with FMLA rights to trial.

There was little in the court record, or personnel file, to indicate that there were performance issues prior to FMLA leave. The court stated “the timeline in this case is highly suspicious” and sent the case to trial. This is just another example, of an employer harming its case by waiting too long to address performance issues of significance.

O’Leary argued that a FMLA suit could not be brought against him in his individual capacity for he was a public official. The court read the language in 29 U.S.C. 2611(4)(A) and found its coverage to be very explicit;  an “employer” includes “any person who acts, directly or indirectly in the interests of an employer to any of the employees of such employer.”   Although the courts are divided as whether public employee supervisors could be sued in their individual capacity, the court sided with the majority of the courts and held public employee supervisors, like any other supervisor in the private sector, could be personally liable for interfering with an employee’s FMLA rights.

            If you have any questions about the FMLA or other employment practices questions, the employment attorneys at Sands Anderson are available for counsel and assistance.

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