Yesterday, an amendment to New York’s wage deduction statute – New York Labor Law Section 193 – passed both the New York State Senate and Assembly.  The amendment is expected to be signed by Governor Cuomo.  This legislation, if enacted, would permit employers to make a wider range of payroll deductions than currently enumerated in Section 193.

As we previously reported, the New York State Department of Labor has over the last couple of years issued several opinion letters which significantly narrow its interpretation of Section 193.  To summarize, NYSDOL has taken the position that a wage deduction is not permissible unless it is very similar to those expressly recognized in the statute as lawful (e.g., payments for insurance premiums, pension, or health and welfare benefits).  This interpretation varies from the NYSDOL’s historical focus on whether the deduction is for the “benefit of the employee.”

The pending amendment to Section 193 would expand the enumerated list of permissible wage deductions to include, among other things, deductions for:  (1) discounted parking costs; (2) certain mass transit costs; (3) gym membership dues; (4) certain cafeteria, vending machine, and gift shop purchases; (5) pharmacy purchases made at the employer’s place of business; (6) tuition, room, and board payments for educational pursuits; and (7) day care costs.  Notably for employers, the legislation would also permit the recovery of wage overpayments and wage advances by payroll deduction under certain circumstances and subject to future NYSDOL rulemaking.

We will continue to monitor this development and will provide additional details on our blog if and when the amendment is signed into law.

Employers in New York are well aware that the state agency that has jurisdiction over employment discrimination and harassment claims under the New York Human Rights Law (“NYRHL”) is the New York State Division of Human Rights (“Division”). The Division also has jurisdiction under the NYHRL to investigate and adjudicate certain other types of discrimination claims outside the employment context, such as alleged housing discrimination. However, in a recent case handled by Bond, Schoeneck & King on behalf of the Ithaca City School District (“ICSD”), the Division’s overly broad interpretation of its jurisdiction was curtailed by New York’s highest court. On June 12, 2012, the New York Court of Appeals held that the Division does not have jurisdiction over discrimination and harassment complaints filed by public school students under the NYHRL.

The case began in 2006, when a parent of a middle school student filed a complaint with the Division, alleging that her daughter had been subjected to racial harassment by other middle school students. The complainant alleged that ICSD was liable for the harassment under Section 296(4) of the NYHRL, which provides:

It shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law . . . to permit the harassment of any student or applicant, by reason of his race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status . . . .

ICSD commenced a proceeding in Supreme Court, Tompkins County, under Article 78 of the Civil Practice Law and Rules, seeking an order prohibiting the Division from exercising jurisdiction over the complaint on the ground that a public school district is not an “education corporation or association” under Section 296(4) of the NYHRL. The court denied ICSD’s petition, and held that the Division could conduct a hearing regarding the complaint.

A hearing was held before a Division Administrative Law Judge (“ALJ”). The ALJ issued a recommended decision finding ICSD liable for the harassment of the student by other middle school students. The Commissioner of Human Rights adopted the ALJ’s recommended decision regarding liability, but reduced the amount of the ALJ’s recommended damages award to the student and her mother.

ICSD appealed the Commissioner’s decision on several grounds, including the same jurisdictional ground upon which the initial Article 78 proceeding had been based. This time, the Supreme Court, Tompkins County, granted ICSD’s appeal and annulled the determination of the Commissioner. The court held that ICSD was not an “education corporation or association” under the NYHRL and that the Division therefore lacked jurisdiction over the complaint.

The Division appealed the decision to the Third Department Appellate Division, which reversed and held that the term “education corporation or association” should be interpreted broadly to include public school districts such as ICSD.

ICSD appealed the Third Department’s decision to the New York Court of Appeals. In a 4-3 decision, the Court of Appeals reversed the Third Department and held that a public school district is not an “education corporation or association” under the NYHRL and that the Division does not have jurisdiction over complaints filed by public school students for alleged discrimination or harassment. The Court of Appeals thoroughly analyzed the legislative history of the term “education corporation or association,” and determined that the legislature never intended that term to include public school districts.

The Court of Appeals rejected the Division’s argument that the term “education corporation or association” should be liberally construed, stating that “it is evident from the legislative history that the term ‘education corporation or association,’ the origins of which can be traced to the Tax Law, refers to only private, non-sectarian entities that are exempt from taxation under [article four of the real property tax law].” The Court of Appeals also observed that a public school district would never need to “hold itself out to the public to be non-sectarian and exempt from taxation” as stated in Section 296(4) of the NYHRL because all public school districts are non-sectarian and all public school districts are exempt from taxation by virtue of the fact that they are public entities.

Accordingly, although the Division can still exercise jurisdiction over employment discrimination and harassment claims filed against public school districts under the NYHRL, it can no longer exercise jurisdiction over discrimination and harassment claims filed by public school students.

On June 18, 2012, the U.S. Supreme Court affirmed a decision of the Ninth Circuit Court of Appeals finding that pharmaceutical sales representatives at GlaxoSmithKline fall within the outside sales exemption from the overtime pay requirements of the Fair Labor Standards Act ("FLSA").  As reported in a previous blog post, the Second Circuit Court of Appeals had reached the opposite conclusion in July of 2010, finding that pharmaceutical sales representatives employed by Novartis were not FLSA-exempt and that a class of more than 7,000 current and former employees in that position were entitled to pursue their overtime claims.  The Supreme Court's 5-4 decision resolves the split in the Circuit Courts on the scope of the FLSA's outside sales exemption and addresses the amount of deference owed to the Secretary of Labor's interpretation of the U.S. Department of Labor's regulations promulgated under the FLSA.

In amicus briefs filed with both the Second and Ninth Circuits, the Secretary of Labor initially took the position that a "sale" as described in the regulations required a "consummated transaction directly involving the employee for whom the exemption is sought."  Because pharmaceutical sales representatives promote drugs to physicians in exchange for nonbinding commitments to prescribe the drugs in appropriate cases, the Secretary argued that they did not "make sales" and, accordingly, could not qualify for the outside sales exemption.  After the Supreme Court granted certiorari, however, the Secretary argued instead that an employee does not make a sale unless he "actually transfers title to the property at issue."

Although an agency's interpretation of its own ambiguous regulations is normally entitled to deference, the majority found "strong reasons" for not deferring to the Secretary's interpretation in this instance.  Specifically, the majority found that the Secretary's current interpretation would impose potentially massive liability on employers without fair warning, especially given the U.S. Department of Labor's apparent acquiescence in the longstanding pharmaceutical industry practice of treating sales representatives as exempt.  In addition, the majority found that the Secretary's interpretation was not persuasive in its own right for a number of reasons, including that it was first announced in a series of amicus briefs with no opportunity for public comment, that the Secretary's initial interpretation argued before the Second and Ninth Circuits had proven to be untenable, and that it was "flatly inconsistent" with the FLSA's definition of "sale."

The majority held that the FLSA's statutory language regarding the outside sales exemption called for a functional inquiry, taking into consideration an employee's responsibilities in the context of the particular industry in which he or she works.  In light of the unique regulatory environment within which pharmaceutical companies operate, including the prohibition against dispensing certain drugs without a physician's prescription, the majority found that the sales representatives' promotional efforts to obtain non-binding commitments from physicians was "tantamount . . . to a paradigmatic sale of a commodity" within the pharmaceutical industry.  Furthermore, the majority found that its holding comported with the apparent purpose of the FLSA's exemption, because pharmaceutical sales representatives who typically earn over $70,000 per year are hardly the type of employees the FLSA was intended to protect.

On May 30, the NLRB's Acting General Counsel ("GC") issued a third report on social media cases.  We have addressed the NLRB's treatment of social media cases in several prior blog posts, including a summary of the GC's second report on social media cases.  The focus of this third report is social media policies, and for the first time, the GC has provided the full text of a social media policy that was determined to be lawful under the National Labor Relations Act ("NLRA").  In addition, the report addresses six other cases in which the GC concluded that at least some of the provisions of employers' social media policies were overly broad and unlawful under the NLRA.  The following summary touches on just a few of the highlights contained in the GC's 24-page report.

A number of the provisions of social media policies that were found to be unlawful were restrictions on communicating confidential information.  Where a social media policy simply prohibits the disclosure of confidential information, the GC has determined that such a prohibition is overly broad because it could reasonably be interpreted to prohibit employees from discussing and disclosing information regarding their own and their co-workers' conditions of employment.  For example, the GC indicated in the report that the following provisions were found to be unlawful:

• "Don't release confidential guest, team member or company information. . . ."
• "Make sure someone needs to know.  You should never share confidential information with another team member unless they have the need to know the information to do their job.  If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so.  If you are unsure, talk to your supervisor."
• "Watch what you say.  Don't have conversations regarding confidential information in the Breakroom or in any other open area.  Never discuss confidential information at home or in public areas."
• "Employees are prohibited from posting information regarding [Employer] on any social networking sites . . . that could be deemed material non-public information or any information that is considered confidential or proprietary.  Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans or schedules."

The GC also found unlawful a provision of a social medial policy prohibiting "offensive, demeaning, abusive or inappropriate remarks" in social media communications.  According to the GC, this provision "proscribes a broad spectrum of communications that would include protected criticisms of the Employer's labor policies or treatment of employees."  Similarly, the GC found that provisions of an employer's social media policy that cautioned employees not to "pick fights" and to avoid "topics  that may be considered objectionable or inflammatory" when communicating on social media sites were unlawful.  The GC reasoned that discussions about working conditions or unionism have the potential to become heated or controversial, and that "without further clarification of what is 'objectionable or inflammatory,' employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism."

The GC also addressed provisions regarding the "friending" of other employees on social media sites.  In general, the GC has found such provisions to be unlawful because they may be interpreted to restrict concerted activity.  For example, the GC concluded that the following provision was overly broad because it could potentially discourage employees from engaging in discussions and communications with their co-workers:

• "Think carefully about 'friending' co-workers . . . on external social media sites.  Communications with co-workers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your personal social media channels could become a concern in the workplace."

Provisions restricting the use of company logos or trademarks in an employee's social media posts were also generally found by the GC to be unlawful.  According to the GC, such provisions are overly broad because an employee could reasonably interpret them to prohibit the use of photos or videos of employees engaging in union activities such as holding picket signs with the employer's logo or trademark.

In the report, the GC also addressed again an employer's use of a "savings clause" in a social media policy (which essentially provides that the policy should not be interpreted or applied in a way that would interfere with an employee's rights under the NLRA).  As in previous reports, the GC reiterated that such clauses do not cure other provisions of the policy that are found to be unlawful.

In general, the GC advises employers to include limiting language and definitions in social media policies in order to give context to provisions that might otherwise be overly broad.  For example, instead of simply prohibiting the disclosure of confidential information, an employer should define what is deemed to be confidential information to ensure that an employee could not reasonably interpret the prohibition to apply to information about the employee's terms and conditions or employment.  The GC also suggests that an employer's social media policy should contain specific examples of activities that would be prohibited by the policy.

As a result of this report and the GC's prior reports on social media cases, it is now extremely difficult for employers to create a lawful and meaningful social media policy that adequately protects its own interests with minimal risk that the policy will be found to violate employee rights under the NLRA.  Employers who wish to create a new social media policy or wish to revise their existing policy would be well-advised to consult with their legal counsel.

Federal contractors may want to start preparing for proposed changes to the regulations issued by the U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), in connection with federal contractors' affirmative action obligations.  OFCCP expects to have new final regulations in place during 2012, which will increase federal contractors' obligations regarding veterans and disabled individuals, as well as modify the documentation required during compliance evaluations.

Proactive steps that covered employers should consider taking include:

1. Review outreach and recruitment efforts, particularly with agencies representing disabled individuals and veterans.  Documentation should be kept of all outreach efforts, as well as any responses.
2. Invite applicants to identify themselves as covered veterans.
3. Check whether all non-executive job openings are being posted with the appropriate state employment delivery service and maintain documentation of postings.
4. Review handbooks and employment policies regarding leaves of absence and reasonable accommodations.
5. Analyze current data collection systems to determine whether there are any issues with collecting the additional information in the OFCCP's proposed Scheduling Letter and Itemized Listing:  (a) employment activity will be required to be submitted by job group and job title; and (b) individual compensation data will need to be submitted for all employees, including such information as gender, race/ethnicity, job title, EEO-1 category, job group, date of hire, base salary, wage rate, hours worked, and other compensation, such as bonuses, incentives, commissions, merit increases, locality pay, and overtime.
6. Analyze compensation data to determine if adjustments need to be made to eliminate any potential problematic pay disparities.

The proposed Itemized Listing requires covered employers to provide the OFCCP with individualized compensation data for all employees, which will enable the OFCCP to run a variety of analyses.  Covered employers should keep in mind that the OFCCP may not have appropriate measures to safeguard this sensitive data from Freedom of Information Act requests.  Before submitting any compensation data, covered employers should take steps to protect such information.

On May 14, 2012, a federal district court judge invalidated new regulations intended to streamline union representation elections, finding that the National Labor Relations Board lacked a proper three-member quorum when it voted on the controversial final rule in December of 2011.  The final rule, which has commonly been referred to as the "ambush" or ""quickie" election rule, went into effect on April 30, 2012.  The same federal district court judge had previously denied a request for a stay of the final rule, stating that he intended to issue a decision on the merits of the case by May 15.

Judge James Boasberg of the U.S. District Court for the District of Columbia found that the required three members necessary to establish a quorum were not present when the rule was adopted on December 16, 2011 because Member Hayes failed to participate in the final vote.  Hayes had previously voted against initiating the rulemaking process and against proceeding with the final rule.  Because of this prior opposition, the two other members issued the final rule without Member Hayes' participation.

Judge Boasberg rejected the Board's argument that Member Hayes had "effectively indicated his opposition" and that his participation in the final vote was not necessary.  In rejecting this argument, Judge Boasberg cited to an unlikely source:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters -- even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold the challenged rule is invalid.

 Judge Boasberg further reasoned that Member Hayes could not be counted toward a quorum particularly because no one on the Board reached out to him to ask for a response, as is the agency's usual practice where a member has failed to vote.  Judge Boasberg stated that if Hayes had affirmatively expressed his intent to abstain or acknowledged receiving notification that the final rule had been circulated, he may have been counted in the quorum; however, because none of those things happened, Judge Boasberg found that Member Hayes failed to "show up -- in any literal or even metaphoric sense."  Because the Board failed to meet the quorum requirement, Judge Boasberg refused to address the plaintiffs' challenge to the final rule on various procedural and substantive grounds.

It remains to be seen whether the newly constituted Board -- complete with three controversial and challenged recess appointees -- will be assembled to take final action on the "quickie" election rule.  In his decision, Judge Boasberg noted that nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if the Board desires to do so.  In addition, an appeal of Judge Boasberg's decision is likely.  If a new vote on the rule is held, it is likely that the rule will once again be challenged.

The Board has announced that, at least for now, all union representation elections based on petitions filed on or after April 30, 2012 will proceed under the old rules.

In an extremely important decision for employers, the United States Court of Appeals for the D.C. Circuit held that an employer can only be cited by OSHA for up to six months following the occurrence of an error or omission in its injury and illness record-keeping logs.  In so holding, the Court restored the plain text of the Occupational Safety and Health Act (the "Act"), which provides that "no citation may be issued . . . after the expiration of six months following the occurrence of any violation."  OSHA regulations require employers to maintain their injury and illness logs for five years from the end of the calendar year that those records cover.  Relying on that regulation, OSHA had a longstanding practice of issuing citations up to five years following an alleged record-keeping violation.  For the first time, an appeals court held that this practice is contrary to the explicit statute of limitations contained in the Act.

The Court's decision was unanimous, and none of the judges thought very highly of OSHA's arguments to extend the statute of limitations to five years for record-keeping violations.  The Court stated that OSHA was "heroically attempt[ing]" to "tie this straightforward issue into a Gordian knot," and was "kick[ing] up" a "cloud of dust . . . in an effort to lead us to [the Secretary of Labor's] interpretation."

While employers may still be cited beyond the six-month statute of limitations if violations are continuing or ongoing, this decision will have a significant impact on OSHA's enforcement of employers' record-keeping obligations.  OSHA has 90 days from the date of the decision to file a petition for writ of certiorari to the Supreme Court if it wishes to appeal the Court's decision.

As we noted in our June 17, 2010 blog post, social networking sites have become a popular tool for employers seeking information about job applicants during the hiring process.  However, employers' efforts to obtain information that enables them to access their employees' and applicants' private social media web sites have recently been subject to increased scrutiny by New York State and Federal legislators.

On April 13, 2012, New York State Senator Liz Krueger sponsored and introduced a bill that would prohibit employers, as well as their agents or representatives, from requiring employees or job applicants to disclose log-in names, passwords, or other means for accessing a personal account or service through an electronic communications device.  This includes information such as private social media account log-in names and personal e-mail account passwords.  This proposed legislation would also prohibit employers from discharging, disciplining, or otherwise penalizing an employee, or failing to hire an applicant, based on the refusal to provide information that would enable the employer to access personal accounts or services through an electronic communications device.  The New York Attorney General would have the authority under the proposed legislation to enjoin employers from committing such unlawful practices, and employers could be subject to a $300.00 fine for a first offense and a $500.00 fine for each subsequent offense.

This proposed legislation comes just weeks after U.S. Senators Charles Schumer (D-NY) and Richard Blumenthal (D-CT) sent open letters to the Equal Employment Opportunity Commission and the U.S. Department of Justice urging the agencies to investigate employers' practice of requiring applicants to provide Facebook and e-mail passwords as a condition for job interviews.

Efforts to enact legislation similar to the New York bill are currently underway in several states.  In fact, Maryland recently became the first state to enact legislation that prohibits employers from requiring that employees or applicants disclose user names, passwords, or other means for accessing a personal account or service through an electronic communications device.

As we indicated in our June 17, 2010 blog post, employers should be careful even when viewing publicly available information regarding applicants on social media web sites.  Because Facebook and other similar web sites potentially contain a plethora of information about job applicants that employers cannot consider during the hiring process (e.g., race, national origin, religion, marital status, sexual orientation, etc.), employers should exercise caution in using social media web sites to screen applicants.  Employers who choose to use social media in the hiring process should promulgate a clear policy and procedure for utilizing this tool, and should closely follow the developments in this area of the law.

The U.S. Court of Appeals for the D.C. Circuit issued an Order today granting an injunction precluding the National Labor Relations Board from implementing its notice posting rule, pending appeal of a lower court decision upholding the validity of the rule.  The notice posting rule was scheduled to go into effect on April 30, 2012, but employers will not be required to comply with the rule until the D.C. Circuit Court of Appeals has had the opportunity to determine whether the NLRB exceeded its authority under the National Labor Relations Act by issuing the rule.

In its Order granting the injunction, the D.C. Circuit Court of Appeals noted that the NLRB voluntarily postponed implementation of the notice posting rule during the pendency of the proceedings before the U.S. District Court for the District of Columbia, which seemed to undercut the NLRB's argument that the rule should take effect during the pendency of the appeal.  The D.C. Circuit Court of Appeals also noted that the NLRB indicated an intent to cross-appeal the portion of the District Court's decision that invalidated certain enforcement provisions of the rule, which created some uncertainty regarding the manner in which the rule will be enforced.

Prior to the issuance of this injunction, U.S. District Courts in two separate jurisdictions had issued conflicting decisions regarding the validity of the notice posting rule.  The U.S. District Court for the District of Columbia held in March that the NLRB had the authority to require employers to post the notice, but did not have the authority to issue a blanket rule that failure to post the required notice will be considered an unfair labor practice and did not have the authority to permit tolling of the six-month statute of limitations for unfair labor practice charges in situations where an employer fails to post the required notice.  However, the U.S. District Court for the District of South Carolina held on April 13, 2012 that the NLRB did not even have the authority to require employers to post the notice.  In its Order granting the injunction, the D.C. Circuit Court of Appeals cited the recent U.S. District Court for the District of South Carolina decision.

According to the D.C. Circuit Court of Appeals Order, briefing of the appeal is expected to be completed by June 29, 2012, and oral argument is expected to be scheduled in September 2012.

On April 13, 2012, the U.S. District Court for the District of South Carolina held that the National Labor Relations Board's rule requiring private sector employers to post a notice of employee rights under the National Labor Relations Act is invalid, because the NLRB did not have the authority under the NLRA to promulgate the rule.  There are now conflicting decisions of U.S. District Courts in two separate jurisdictions regarding the validity of the notice posting rule.  The U.S. District Court for the District of Columbia previously held that the NLRB had the authority to require employers to post the notice, but also found that certain enforcement provisions of the rule were invalid.

In the case filed by the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce, the U.S. District Court Judge noted that the NLRA grants the NLRB authority to promulgate rules that are "necessary to carry out" the provisions of the NLRA.  The Judge held that the NLRB failed to demonstrate that the notice posting rule is "necessary" to carry out any provisions of the NLRA.

The decision of the U.S. District Court for the District of Columbia upholding the validity of the notice posting rule has already been appealed by the plaintiffs to the District of Columbia Circuit Court of Appeals, and it is likely that the NLRB will appeal the recent decision of the U.S. District Court for the District of South Carolina to the Fourth Circuit Court of Appeals.  If the two Circuit Courts of Appeals reach conflicting decisions, it is possible that the U.S. Supreme Court may eventually address the validity of the NLRB's notice posting rule.

The notice posting rule was scheduled to take effect on April 30, 2012.  At this point, it is not clear  whether the NLRB will suspend enforcement of the notice posting rule for employers across the nation pending appeal, or whether the NLRB will take the position that enforcement of the rule is suspended only for employers within the jurisdiction of the U.S. District Court for the District of South Carolina.  Stay tuned for further updates on this blog as they become available.

 

On April 5, the Occupational Safety and Health Administration ("OSHA") announced a new National Emphasis Program ("NEP") for inspecting nursing homes and residential facilities.  This is an important announcement, because for most employers, there are only a few reasons why OSHA may inspect an employer's worksite:  (1) the worksite's injury and illness rate places it within OSHA's Site-Specific Targeting program; (2) the occurrence of a work-related accident that causes a fatality or hospitalizes three or more employees; (3) a referral from another law-enforcement agency; (4) an inspector withesses a possible violation in "plain view" or from media reports; (5) an employee complaint; or (6) a follow-up from a previous inspection.

However, OSHA also has the authority to create regional and national emphasis programs for particular industries.  Using that authority, OSHA has announced that it will inspect nursing homes and residential facilities nationwide that had a Days Away, Restricted, or Transferred ("DART") rate in 2010 of 10.0 or more.  The directive implementing the NEP also states that each Area Office will inspect at least three nursing homes or residential facilities within its jurisdiction each year under this program.  Thus, nursing homes or residential facilities with a 2010 DART rate of 10.0 or more should consult with their safety personnel and legal counsel to prepare for the likelihood of an OSHA inspection.

The Third Circuit Court of Appeals recently held, in Haybarger v. Lawrence County Adult Probation and Parole, that supervisors may be subject to individual liability under the Family and Medical Leave Act ("FMLA").  Although this Third Circuit decision is not binding on U.S. District Courts in New York or the Second Circuit Court of Appeals, the decision potentially opens the door for plaintiffs in FMLA cases filed in New York to name individual supervisors as defendants in their lawsuits.

In Haybarger, the plaintiff, Debra Haybarger, was an office manager for Lawrence County Adult Probation and Parole.  Ms. Haybarger's supervisor was William Mancino, the Director of Probation and Parole.  Ms. Haybarger had Type II diabetes, heart disease, and kidney problems, which constituted serious health conditions under the FMLA and caused her to miss work frequently to seek medical attention.  Mr. Mancino allegedly expressed dissatisfaction with Ms. Haybarger's absences and wrote on her performance evaluation that Ms. Haybarger needed "[t]o improve her overall health and cut down on the days that she misses due to illness."  On March 23, 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period due to alleged performance problems, and subsequently recommended the termination of Ms. Haybarger's employment.  Ms. Haybarger's employment was terminated on October 4, 2004.

After her discharge from employment, Ms. Haybarger filed a lawsuit against Lawrence County Adult Probation and Parole and Mr. Mancino.  Part of her lawsuit included a claim against Mr. Mancino in his individual capacity for an alleged violation of her rights under the FMLA.  The U.S. District Court for the District of New Jersey granted summary judgment to Mr. Mancino with respect to the FMLA claim against him in his individual capacity, but the Third Circuit reversed and remanded the case back to the District Court.

The Third Circuit examined the definition of "employer" under the FMLA, which includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."  The Third Circuit also reviewed the Department of Labor's regulations implementing the FMLA, which provide that "individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of FMLA."  Based on the text of the statute and the regulations, the Third Circuit concluded that "liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff's 'employer.'"  Although the employer at issue in the Haybarger case was a public agency, the Third Circuit's analysis appears to apply equally to individual supervisors at private employers as well.

The Third Circuit also held that there was a genuine dispute of material fact regarding whether Mr. Mancino exercised sufficient authority over Ms. Haybarger's employment to qualify as an "employer" under the FMLA, and remanded the case back to the District Court for a jury trial.  The Third Circuit applied an "economic reality" test to determine whether a reasonable jury could determine that Mr. Mancino qualified as Ms. Haybarger's employer under the FMLA.  Citing to a Second Circuit Court of Appeals case in the context of a Fair Labor Standards Act ("FLSA") claim, the Third Circuit examined the following factors in applying the "economic reality" test:  (1) whether the individual had the power to hire and fire the employee; (2) whether the individual supervised and controlled employee work schedules or conditions of employment; (3) whether the individual determined the rate and method of payment; and (4) whether the individual maintained employment records.  Based on these factors, the Third Circuit concluded that a reasonable jury could find that Mr. Mancino acted as Ms. Haybarger's employer under the FMLA.

Employers in New York should be aware that plaintiffs who allege a violation of their FMLA rights may name individual supervisors as defendants in their lawsuits.  Employers should take this opportunity to train their supervisors regarding their obligations under the FMLA.  Employers should also remind their supervisors that their actions could result not only in liability for the employer, but also potentially in liability for themselves.