Court fines HR exec for manager’s mistake
July 1, 2008 by Sam NarisiPosted in: FMLA, Recent Decisions, Special Report, Terminations
Human Resources pros do whatever they can to keep their companies safe from lawsuits. But some courts are raising the stakes — and holding HR managers personally liable for legal slip-ups.
In one recent case, a company’s HR manager had to defend himself in front of a judge after a communication mix-up resulted in an FMLA suit by an ex-employee.
The employee was hospitalized following a medical emergency. Her doctor submitted the FMLA certification and told the company when she’d return to work.
The woman had already used several weeks of leave earlier in the year. The company’s HR manager told the employee’s supervisor that she’d run out of protected FMLA leave about two weeks before her expected return date.
However, neither HR nor the supervisor ever told the employee (seemingly, the company planned to reinstate her anyway.) But when she returned to work on the planned day, she was fired.
She sued the company, claiming she should’ve been told she’d lose her job if she used the extra two weeks of leave. The court ruled in her favor.
The twist: In addition to the company, both the HR manager and the employee’s boss were listed as individual defendants. The judge also ruled against them, saying they were to blame for the decision to fire the employee and the failure to let her know she’d lost her FMLA protection (Cite: Spagnoli v. Brown and Brown Metro, Inc.).
Individual liability for HR execs
Courts across the country have held that individuals with significant decision-making authority can be held personally liable in FMLA, wage and hour, and (in some states) discrimination and harassment suits. Under FMLA, for example, the definition of who can be sued includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Often, the plaintiff’s supervisor is the target, but in many cases, so is HR.
There are steps all HR pros can take to avoid getting a personal invitation to court, says attorney Denise Kay, who spoke at this year’s Society for Human Resources Management conference. Her advice:
- Don’t just “follow orders” — Of course, everyone in HR knows to stand up to managers who want to take potentially litigious action. But the threat of being involved in an individual suit should be an added incentive.
- Know how to respond to authorities — Not answering correctly to requests from government agencies (like the EEOC) could get HR pros hit with obstruction of justice charges.
- Communicate — In the above case, making sure the manager’s plans were understood and communicated to the employee on leave would have saved the HR manager — and the company — a lot of trouble.
Tags: Family and Medical Leave Act, FMLA, HR manager, human resources manager, individual liability, individually liable, personal liability, personally liable
July 2nd, 2008 at 10:31 am
How would these judges like to be held personally responsible for an appealing party’s damages when their rulings are overturned by an appellant court because they got it wrong?
July 2nd, 2008 at 11:13 am
Is it possible for an HR Executive to have personal errors and omissions insurance, or can we get malpractice insurance like MD’s? I can’t believe that it has come to this.
July 2nd, 2008 at 11:48 am
I like what William Pearth had to say.
To add to those comments:
Everyone makes mistakes or has at one time or another had an error in judgment or had to deal with Supervisors who did as they pleased regardless of how they were instructed, the real issue is how did they rectify the situation and what they will do to fix it going forward.
If a person was fired upon returning there could have been other issues, when dealing with FMLA and termination it is best to separate the issues as far as possible from each other.
July 2nd, 2008 at 2:02 pm
Personal Liability insurance is available; speak to your homeowner insurance agent about an Umbrella Policy.
July 2nd, 2008 at 2:23 pm
Before running out to get individual coverage, first check your employer’s liability insurance, which should, minimally, cover supervisors and executive staff when they are acting within the realm of their normal job duties. If your employer doesn’t carry such coverage, the head of HR isn’t the only one vulnerable to being named in a lawsuit…
July 2nd, 2008 at 4:10 pm
Thanks Emily!!
July 2nd, 2008 at 4:57 pm
This is a question. Should a HR Manager be found liable for not doing a proper background check on a Supervisor who turned out to sexually harrass a employee and it turns out the Supervisor was a convicted rapist? The HR Manager knew the Supervisor was saying comments that were out of line. The HR Manager was sitting at the same table at a company part when the Supervisor was yelling “who brought the ho’s”. I feel she should.
July 3rd, 2008 at 8:36 am
[...] Court fines HR exec for manager’s mistake The judge also ruled against them, saying they were to blame for the … There are steps all HR pros can take to avoid getting a personal [...]
July 3rd, 2008 at 2:06 pm
I forwarded this article to my boss in hopes that it might engender more patience when I am crossing Ts and dotting Is. However, without more information (why was she fired, where did this happen, who were the parties in court) it is dismissed as a horror story that doesn’t justify time to read it. I, of course, was fascinated by the article.
July 3rd, 2008 at 4:49 pm
It appears that HR Managers are really swimming with the sharks now. When doing this don’t bleed. If you must, now could be a good time to think about retirement
August 6th, 2008 at 6:47 pm
In answer to Bob Furman’s question -
Your company can purchase errors and omissions insurance.
Another avenue is that you can purchase your own personal liability umbrella insurance policy that would cover you personally for errors and omissions.
August 20th, 2008 at 4:49 pm
Add this to the list of reasons that we use ADPTotalSouorce as our PEO. Not only do they handle issues like these, but they also offer $1M in legal defense coverage and insurance.