by Phyllis Katz
In a case decided in late August, Weth v O'Leary, a federal court in Virginia sent a
wake-up call to all public employer supervisors when it held that the Treasurer
of Arlington County could be held personally liable for interfering with the
rights of an employee who was on Family
and Medical Leave. The case has ramifications for all supervisors and
managers who have responsibilities for hiring, firing, or setting the
conditions of employment for employees. Supervisors may be held personally
responsible for paying damages.
The case also sends another strong message to all
supervisors and HR Managers - deal with performance issues when they arise - do
not wait until a more convenient time or to a time when there are more facts to
support the performance conclusions that the supervisor has drawn (the "do not
be petty" type of strategy).
Patricia Weth had been employed for six years prior to
her diagnosis of cancer. With the diagnosis and the need for immediate surgery,
she was given Family and Medical Leave. When she returned to work, months
later, she was told that she needed to begin looking for another job
immediately and that she was being placed on leave with pay until she found
another job. When she did not find other employment, she was terminated.
O'Leary, the Arlington County Treasurer and her employer, terminated Weth for
poor performance and other job related deficiencies all arising before she
requested FMLA leave. Weth claimed that O'Leary interfered with her FMLA
reinstatement rights as well as retaliated against her for taking FMLA leave.
The court concluded that there were sufficient facts to take the issue of
interference with FMLA rights to trial.
There was little in the court record, or personnel file,
to indicate that there were performance issues prior to FMLA leave. The court
stated "the timeline in this case is highly suspicious" and sent the case to
trial. This is just another example, of an employer harming its case by waiting
too long to address performance issues of significance.
O'Leary argued that a FMLA suit could not be brought
against him in his individual capacity for he was a public official. The court
read the language in 29 U.S.C. 2611(4)(A) and found its coverage to
be very explicit; an "employer" includes "any person who acts, directly
or indirectly in the interests of an employer to any of the employees of such
employer." Although the courts are divided as whether public
employee supervisors could be sued in their individual capacity, the court
sided with the majority of the courts and held public employee supervisors,
like any other supervisor in the private sector, could be personally liable for
interfering with an employee's FMLA rights.
If you have any questions about the FMLA or other employment practices
questions, the employment attorneys at Sands Anderson are available for
counsel and assistance.
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