In a case of first impression, the United States Court of Appeals for the Third Circuit has confirmed that supervisors of both private and public sector employers can be held individually liable under the Family and Medical Leave Act (“FMLA”) 29 U.S.C. § 2601 et seq.   Haybarger v. Lawrence Cty. Adult Probation and Parole, 667 F.3d 408 (3d Cir. 2012).  Although this was the first occasion for the Third Circuit to decide the issue of supervisor liability, other Circuit Courts of Appeals have consistently held that, based upon the FMLA’s plain language, supervisors may be held individually liable in the private sector.  There is, however, a split amongst the Circuit Courts of Appeals as to whether the FMLA permits individual liability against supervisors at public agencies.  The Fifth and Eighth Circuits have permitted such liability, while the Sixth and Eleventh Circuits have not.  In Haybarger, the Third Circuit joined the Fifth and Eighth Circuits in holding that the FMLA imposes individual liability against supervisor at public agencies. 

In order to be subject to individual liability, the supervisor must exercise supervisory authority over the plaintiff and be responsible in whole or part for the alleged FMLA violation.  Id. at 417.  The Haybarger Court further noted that supervisors, and others, can also be subject to personal liability under the FMLA if they qualify as “employers” under the “economic reality test” (“ERT”).  Id. at 417-418.  The ERT is the same test applied in Fair Labor Standards Act (“FLSA”) cases, where courts will consider whether the individual against whom personal liability is sought: (1) had the power to hire and fire the subject employee; (2) supervised and controlled the conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.  Id. at 418 (internal citations omitted).