That’s the message out of a recent appeals court ruling in Pennsylvania, in which a judge ruled that a supervisor in the Lawrence County Probation Department may be subject to individual liability under the FMLA.
The case centers on Debra Haybarger, who’d worked as an office manager for the probation department before she began reporting to William Mancino, the agency’s director.
Haybarger suffered from a number of ailments — diabetes, heart and kidney disease — and missed work repeatedly to deal with her conditions. Mancino, while acknowledging her medical difficulties, wasn’t pleased. He repeatedly wrote in his annual performance evaluations that Haybarger needed “(to) improve her overall health and cut down on the days that she misses due to illness.”
Haybarger testified that he asked her why she breathed heavily and why she needed to visit the doctor so often, and advised her that she needed to “start taking better care of (her)self.”
Later, Mancino formally disciplined Haybarger by placing her on a six-month probationary period. In his notice, he said that Haybarger’s “conduct, work ethic, and behavior (were) non-conducive to the (probation department operation),” that she demonstrated a “lack of leadership,” and showed “a lack of empathy to subordinate workers.”
At the end of the probationary period, Mancino went to his boss and recommended that Haybarger be fired.
After her termination, Haybarger sued on several grounds. Eventually, the parties agreed on a settlement, but one issue remained: whether or not Mancini could be held personally responsible for an alleged violation of FMLA rules. A district court said no. But the appeals court reversed that decision.
The technical explanation of the court’s ruling is this: In order to be held liable under the law, a manager must be acting as “employer” — “when he or she exercises ‘supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation’ while acting in the employer’s interest,” the judge wrote.
Mancini fit that criteria, the court ruled. And now the case goes back to district court to decide whether the manager actually violated the FMLA.
So what’s the message to managers? Molly DiBianca, writing on the Delaware Employment Law blog, offers supervisors the following advice:
• First, do not comment (or care) about the reasons for an employee’s absence. If an employee is absent and is permitted to be absent — because of your leave policy, because of the FMLA, or otherwise — then the reason for the absence is irrelevant.
• Do not care and do not comment about why an employee is taking leave when he or she is permitted to do so.
• Learn how to write a better performance evaluation. Ambiguous comments like “employee demonstrates poor leadership skills” do not help the employee improve because they do not identify the underlying conduct that you want her to change. Give an example of how she fails to be a good leader. If you cannot articulate a specific example of what you consider to be poor performance, it is not poor performance under the law.
• To avoid being held individually liable under the law, supervisors are best advised to let HR do what they do best — including administering FMLA leave. Simply turn it over to HR and then get the pros involved when writing performance evaluations and considering disciplinary action for any employee who has been approved for FMLA leave.
For more information about workforce management-related issues, contact Jeff DiDomenico at Valiant.