FMLA Insights - Guidance & Solutions for Employers

On March 24, 2010, the U.S. Department of Labor’s Wage and Hour Division announced that it will begin issuing “Administrator Interpretations” of the statutes and regulations administered by the division, which include the Family and Medical Leave Act and the Fair Labor Standards Act. According to the announcement, these Administrator Interpretations “will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision at issue,” and will clarify the law “as it relates to an entire industry, a category of employees, or to all employees.”

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A recent federal trial court decision broadens the scope of individual liability for supervisors in claims filed under the Family and Medical Leave Act (FMLA). In Narodetsky v. Cardone Industries, Inc. (pdf), the court allowed a former employee's FMLA claim to proceed against three human resources executives and a supervisor who allegedly conducted a forensic search of the plaintiff's computer to find a reason that would justify his termination and therefore obviate the need to grant his requested leave of absence. The suit also named the company's chief executive officer as a defendant.

In Narodetsky, the plaintiff suffered a knee injury and required surgery. Shortly thereafter, his wife contacted the employer to inform the company that the Plaintiff would need time off for the anticipated operation. He later sought a ten-day leave of absence to recuperate from the surgery. Within a day of the initial request, the plaintiff alleges that the HR executives and the plaintiff's supervisor forensically combed through his computer and found an email he sent to a co-worker that allegedly contained pornographic images. Weeks later, several of the defendants convened a meeting with the plaintiff, at which time they showed him the email and terminated his employment. He later filed suit against the company, alleging that it interfered with his FMLA leave rights and retaliated against him for requesting leave.

In denying the motion to dismiss the individual defendants from the case, the Court held that all five of the individual defendants were properly named as parties because each one had the power to fire and played a role in the decision to terminate the plaintiff.

Insights for employers

The lesson learned from Narodetsky decision is clear: Aside from the obvious take away (read: don't conduct a forensic search of an employee's computer immediately after he seeks a leave of absence!), it is critical that employers establish a regular protocol for responding to requests for medical leaves of absence that passes muster under laws such as the FMLA and ADA. This case also highlights how vital it is for employers to train their supervisors as to their responsibilities in managing an employee with a medical condition. Indeed, the price tag in litigating this case will far outweigh the costs the company would have incurred in training supervisors as to their obligations under the FMLA.