Wednesday, March 3, 2010

Employers often don’t stand alone in lawsuits – let’s talk about manager and supervisor liability

Ohio’s discrimination law is quirky when compared to its federal counterparts. For one thing, an Ohio employee does not need to exhaust his or her remedies with the Civil Rights Commission before filing a discrimination lawsuit in court. Also, under Ohio law, supervisors and managers can be held personally liable for their own acts of discrimination.

Discrimination laws, however, are not the only laws that provide for this individual liability. Other federal statutes – namely the FLSA, the FMLA, and the Equal Pay Act – also provide for manager and supervisor liability. The FMLA’s regulations [section 825.104(d)] explain why managers and supervisors can be personally liable under these statutes:

An “employer” includes any person who acts directly or indirectly in the interest of an employer to any of the employer's employees. The definition of “employer” in section 3(d) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly includes any person acting directly or indirectly in the interest of an employer in relation to an employee. As under the FLSA, individuals such as corporate officers “acting in the interest of an employer” are individually liable for any violations of the requirements of FMLA.

This week, a Pennsylvania federal court explained the scope of this individual liability. In Narodetsky v. Cardone Industries (as discussed on, the federal court permitted FMLA claims to proceed against the defendant’s HR manager, benefits manager, and plant manager, as well as its president and CEO. The court concluded that anyone who exercises control over plaintiff in the termination or medical leave decisions can be liable under the FMLA. At least one Ohio federal court – in Mueller v. J.P. Morgan – reached this same conclusion. Extrapolating this rule to the FLSA, individual liability would extend to anyone who exercises control over a pay decision.

Individual liability has significant implications for how employers litigate FMLA and FLSA cases. If a supervisor, manager, or executive is named in a lawsuit, you and your counsel need to determine quickly whether the individual(s) can be represented by the same lawyer as the company, or if there is a conflict. This issue is complicated when an individual has left your organization, and exponentially complicated when the departure was on bad terms.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or