The Family and Medical Leave Act continues to bedevil corporate counsel. The idea is a good one: providing 12 weeks of unpaid leave for employees who find themselves or their close family members incapacitated. But implementing a worthwhile idea is an entirely different matter than legislating it. Let’s look at whether 2010 brought clarity or confusion.
First off, can a plaintiff sue a manager individually? Consensus is coalescing around “yes.” In a 2010 case, Saavedra v. Lowe’s Home Center , the U.S. District Court for the District of New Mexico agreed with several circuit courts of appeals that the FMLA’s text provides for individual liability if the manager, acting on the employer’s behalf, takes an adverse employment action against an employee. When a manager does so, she becomes an employer within the meaning of the FMLA and is on the hook with the corporate employer. So, in Saavedra , the court denied the manager’s motion for summary judgment.
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