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.

If you need to give managers another reason to pay attention during legal training, this one might do the trick.

It’s the new trend in employment lawsuits: personal liability. Seems like making companies shell out the big bucks wasn’t enough, so courts have started dipping their hands into individual managers’ pockets, too.

The thinking is that since supervisors are normally the ones carrying out the actions that make employees sue, they ought to be held accountable themselves.

Wage and hour

In one recent case, a company was sued for failing to pay overtime. The verdict: The company was ordered to hand over $141,000 in back pay.

But it wasn’t just the employer that got hit hard – the manager who was in charge of the employees was forced to pay the same amount in punitive damages, since compensation decisions were mostly in his control (Cite: Chao v. Hotel Oasis, Inc.).

FMLA

A similar case was decided after an employee was fired while taking FMLA leave. Except this time, both her supervisor and the company’s HR manager were held personally liable.

They tried to have the case thrown out, saying they couldn’t be sued for the company’s decision to terminate the women. But the judge didn’t buy it. As the FMLA says, “Any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer” can be held responsible. In other words, as the primary decision-makers, the two managers screwed up and had to fork over the money (Cite: Spagnoli v. Brown & Brown Metro, Inc.).

Harassment and discrimination

What about discrimination and harassment cases? It depends. As far as federal law goes, the courts have agreed there’s no individual liability in those kinds of suits.

But the states are a mixed bag. For example, the California Supreme Court recently tossed out a retaliation suit against a manager, citing previous decisions rejecting the idea of personal liability in harassment and discrimination cases.

But that’s not true everywhere. In New York, a lawsuit was filed by a woman who claimed she was fired because of her gender. The higher-ups who made the decision to let her go were included as individual defendants. The court let the case go forward, finding that, under New York law, individuals with “significant supervisory authority” can be sued for discrimination (Cite: Heinemann v. Howe & Rusling, et. al.).

Regardless of where your state falls on the issue, it’s a threat supervisors need to be aware of – and it’s a good way to drive home the importance of paying attention to the law next time you give a training presentation.