Supervisor was not an ‘employer’ for FMLA individual liability

February 5, 2025

Under the federal Family and Medical Leave Act (FMLA), employers must give employees job-protected leave when called for and may not retaliate against employees who exercise their FMLA rights.

The FMLA defines “employer” as someone who acts, directly or indirectly, in the interest of an employer to its employees.

In addition to filing claims against employers, employees may file claims against individuals acting as employers. These individuals could be supervisors, managers, HR professionals, and so on. The 10th circuit recently clarified what it takes for an employee’s supervisor to be acting as an “employer,” as defined.

The workplace situation

Marci took FMLA leave from June 4 to June 25, 2018, due to her and her daughter’s health issues. At the time, she had also claimed that Richard, her supervisor, was discriminating against her due to her sex and national origin. The discrimination claim put Marci in the spotlight.

On August 16, 2018, the employer fired Marci, citing work performance issues.

Marci sued, claiming that the employer discriminated against her based on her protected classes, and also because Richard retaliated against her because she took FMLA leave.

The employer and Richard asked the court to close the case.

The court ruling

In court, Marci argued that Richard was acting in the role of her “employer” as the FMLA defines. The court said it had to go beyond the FMLA’s definition; that it had to apply the “economic reality test” to find whether Richard was an “employer” under the FMLA.

She said that the court should not have applied the test. The court responded that, because FMLA’s “employer” definition largely tracks with the federal Fair Labor Standard Act’s (FLSA) definition, and other circuits apply the FLSA’s economic reality test to the FMLA, it would follow suit.

Because Marci disputed only whether the court should apply the economic reality test, the court granted summary judgment to Richard and ended her FMLA claim.

A learning lesson for all employers

Because courts lean heavily on legal terminology and definitions when hearing a case and ruling on it, employers should realize the impact their workplace actions have in the roles they perform.

While Marci wanted the court not to apply the “economic reality” test in her case, the court denied her request and ruled in the supervisor’s favor.

Employers can benefit from knowing that the economic reality test requires courts to determine whether someone is an employer if they:

Have the power to hire and fire employees;
Supervise and control employee work schedules or conditions of employment;
Determine the rate and method of payment; and
Maintain employment records.

Marci Walkingstick Dixon, v. NSU et al., No. 24-7016, 10th Circuit Court of Appeals; January 14, 2025.

Key to remember: Not all supervisors are employers under the FMLA and, therefore, may not be sued as individuals.

Publish Date

February 5, 2025

Author

Darlene Clabault

Type

Industry News

Industries

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