HR Director is Personally Liable for FMLA Violation

personally liable for fmla violation

HR Director is Personally Liable for FMLA Violation


The Family and Medical Leave Act (FMLA) is an important employment-related piece of legislation. The Act essentially allows employees to take extended periods of time off from work in order to care for a sick relative, to deliver a child, and/or for certain other, medically-related reasons. While the Act does not mandate that FMLA leave be paid, it does provide job protection in that the employer is required to allow an employee who took FMLA leave to return to work at the expiration of the leave period without penalty. Employer representative is personally liable for FMLA violation, and may be subject to penalties, sanctions, and/or court directives to rehire the aggrieved employee. In one recent case (Gradziadio v. Culinary Institute of America), a human resources director of an employer was subjected to these sanctions.

Why This Case Appears Unusual

In most cases, employers are responsible for the injuries and damages their employees cause to others if their employees are engaged in the performance of their job duties. This doctrine – called respondeat superior, or “let the master reply” – allows injured plaintiffs to pursue legal action against a negligent employee’s employer (who is, incidentally, more likely to have the means and resources to pay a monetary judgment. In the typical tort lawsuit, both the employee and the employer would be sued but the employer would be required to indemnify the employee so that only the employer pays damages to the plaintiff.

However, the FMLA imposes liability on “employers” who violate the FMLA. The Act’s definition of “employers” is expansive and includes individuals acting in the interest of an employer. In determining whether a person is an “employer” or not, courts use the “economic-reality test.” The “economic reality test” looks to whether the individual has control over an employee’s terms and conditions of employment. This would include:

  • The power to hire the employee;
  • The power to fire the employee;
  • The power to dictate the schedule of the employee;
  • The power to set or amend the employee’s rate of pay; and/or
  • The responsibility of maintaining employment records.

In using the test in Graziadio case, the Second Circuit Court of Appeals found that the HR director in question was an employer and was therefore personally liable for FMLA violation and damages to the employee.

What the HR Director Did Wrong to Subject Himself to Liability

personally liable for fmla violationIn the Graziadio case, the employee took a FMLA leave of absence for various life events. The HR director of the employer believed the FMLA paperwork submitted by the employee did not justify the absences and required the employee to submit new, more thorough documentation and have a face-to-face meeting with the director before returning to work. Although the employee did submit new paperwork, the meeting did not take place. After a period of time, the director terminated the employee’s employment. Under the economic reality test, the court found that the HR director was, in fact, an “employer” in that the director had the power to hire and fire the employee and was the one who administered and supervised the employee’s FMLA leave. Even though the company’s policies indicated that the decision to terminate any worker’s employment rested with the head of the company, the court found that the head of the company would defer to the director’s decisions and assessments.


Businesses may find themselves facing legal consequences for violating an employee’s rights under the FMLA, but individual “employers” may also find themselves facing legal ramifications if they are determined to have control over the aggrieved worker’s employment and are responsible for violating the worker’s rights. To protect HR personnel, business owners should consider exercising independence and oversight when it comes to FMLA requests, especially when an HR worker believes an employee is not entitled to protection under the FMLA.