Published Date: 05/27/2014
By Pat Rountree
Employment laws outline employer responsibilities for compliance under the various regulations. From time to time, the Advice and Resolution team is asked, “Can I be held personally responsible?” The answer is, it depends. It depends on the definition of employer under the regulation and/or the interpretation of that definition by the court if it is ambiguous.
The Fair Labor Standards Act (FLSA) defines employer to include any person acting directly or indirectly in the interest of the employer in relation to an employee. That definition could include HR Managers and other managers or supervisors who have the authority by the employer to exercise control over the employee’s job. HR Managers and managers who review job classification could be held liable for misclassification of a job as exempt when it should have been non-exempt, resulting in failure to pay overtime.
Individuals who qualify as employers as explained above may also be liable under the Equal Pay Act if they are responsible for paying a male more than a female for the same job unless there are factors to support the differential (more experienced, merit based on documented performance, etc.).
The Family and Medical Leave Act follows the same definition as the FLSA. Supervisors and managers who have authority over an eligible employee can be held responsible for denying FMLA or failing to fulfill other requirements of FMLA. Examples of individual responsibility include failure to designate absences that qualify as FMLA resulting in disciplinary action for absences (train your supervisors), and failure to provide FMLA notices (HR take note).
Other employment laws that can hold individuals personally responsible for violations include:
- USERRA – failure to hire or taking negative action against a person because of their military service or other actions in violation of the Act
- Section 1981 Civil Rights Act – discrimination based on race/color (Title VII does not consider individuals as employers; Section 1981 permits individual actions)
- HIPAA – revealing personally identifying health information
- ERISA – fiduciary breach of responsibilities under health care plan, retirement or 401(k) plan, or other covered plans
- Immigration and Reform Act – knowingly hiring an illegal immigrant
Employees can also sue personally responsible individuals under state tort laws for wrongful discharge, or other conduct that violates a duty of care that a supervisor, or manager may have in their role.
While employees may not know that they could sue individuals, plaintiffs’ lawyers do. Where there is individual liability, the opportunity for monetary gain increases as individuals can have the same penalties as employers.
Please contact a member of CAI's Advice & Resolution Team with questions at 919‑878‑9222 or 336‑668‑7746.