5th Circuit Holds Individual Government Employee Can Be Liable Under FMLA

An employee of the Texas Cosmetology Commission had a number of problems with her superiors following an incident where she was convicted of simple assault following an altercation with operators of a beauty school she was inspecting. (Texas doesn't get its reputation for taking "big hair" seriously for nothing.) After more problems she brought a suit against the new Executive Director of the agency arguing the ED should be individually liable under the FMLA as an "employer."

Although ultimately the 5th Circuit let the ED off the hook because the law was not firmly established when the claim was made in 2003, from this point forward, the law in the 5th Circuit is now clear:

We agree with the Wascura court that "t]he fact that Congress, in drafting the FMLA, chose to make the definition of "employer" materially identical to that in the FLSA means that decisions interpreting the FLSA offer the best guidance for construing the term "employer" as it is used in the FMLA. Wascura, 169 F.3d at 686. We have previously held that a sheriff is an employer for purposes of the FLSA. Lee v. Coahoma County, Miss., 937 F.2d 220, 226 (5th Cir. 1991), amended by 37 F.3d 1068 (5th Cir. 1993). Therefore our conclusion that plain language of the FMLA permits public employees to be held individually liable is consistent with our holding in Lee.

Modica v. Taylor (5th Cir. 9/13/06) [pdf].

In doing so, the 5th Circuit disagreed with some of its sister circuits, including ironically the 11th Circuit in Wascura, so I should say the law in the 5th Circuit is now clear until the Supreme Court says otherwise. For private sector employers the message should be equally clear. Just like under the FLSA, individual managers who take action with respect to FMLA matters may very well find themselves subject to individual liability.