Submitted by Keshia McCrary

In Haybarger v. Lawrence County Adult Prob. & Parole, 667 F.3d 408 (3d Cir. 2012), the Third Circuit unanimously held that a supervisor, both in the private and public sectors, may be held individually liable for violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq. Haybarger was an office manager for the defendant, Lawrence County Adult Probation and Parole (“Lawrence County”), who missed work frequently due to problems associated with her Type II diabetes, heart disease, and kidneys. The Western District of Pennsylvania Court granted summary judgment against Haybarger in favor of Lawrence County holding that while the FMLA permitted liability against supervisors individually at public agencies, Haybarger failed to present sufficient evidence that her supervisor indeed exercised “sufficient control” over the terms and conditions of her employment.

Looking at the language of the statute, Department of Labor regulations, and cases interpreting the Fair Labor Standards Act for guidance, the Third Circuit, for the first time, recognized that supervisors may be held individually liable for FMLA violations. Based on the statutory language that defines an employer as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such an employer,” an individual who exercises supervisory authority over a complaining individual and was responsible in whole or in part for the alleged violation may be liable even if he or she is not the ultimate decisionmaker. In an even broader reach, the Court noted there was no reason to distinguish between public agencies and private employers for purposes of individual liability under the FMLA.

The Third Circuit joins the Fifth and Eighth Circuits, and opposes the Sixth and Eleventh Circuits, by permitting individual liability against supervisors at public agencies. In this case, the Third Circuit reversed the district court’s grant of summary judgment. Analyzing the “economic reality” of Haybarger’s employment situation, the Court held that a rational jury could find the individual supervisor exercised sufficient control over Haybarger’s employment so as to be liable for violations of the FMLA.

Tags: Haybarger v. Lawrence County Adult Prob. & Parole, Third Circuit
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Photo of Justin F. Keith Justin F. Keith

Justin helps unionized businesses maintain successful labor relations and helps non-union companies maintain direct relationships with their employees through education, training, and proactive union awareness. His labor practice encompasses all aspects of labor relations, including unfair labor practices, representation proceedings before the National

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Justin helps unionized businesses maintain successful labor relations and helps non-union companies maintain direct relationships with their employees through education, training, and proactive union awareness. His labor practice encompasses all aspects of labor relations, including unfair labor practices, representation proceedings before the National Labor Relations Board and Courts of Appeal, contract negotiations, strikes and lockouts, grievances, and arbitrations. Justin also represents employers in all areas of employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union awareness strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual

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