Personal liability is when you can be personally held accountable for a civil action. In other words, if a claim is brought against your employer, you as a supervisor or manager can also be named in that claim and be required to pay a monetary award to satisfy the claim.
An employer, as defined by the Fair Labor Standards Act (FLSA), in 29.U.S.C. 203(d) is “any person acting directly or indirectly in the interest of an employer in relation to an employee”. Therefore, if a supervisor has the authority to make decisions or has control over hiring/firing, work stations & assignments, hours worked (including overtime), leaves of absence, employee safety, etc., they are considered as acting in the interest of the employer and can be held liable to some degree for an alleged infraction.
A number of laws have been inferred to hold supervisors personally liable. They include, but are not limited to:
- FLSA (Fair Labor Standards Act)
- FMLA (Family and Medical Leave Act)
- COBRA (Consolidated Omnibus Budget Reconciliation Act)
- HIPAA (Health Insurance Portability and Accountability Act)
- ERISA (Employee Retirement Income Security Act)
- OSHA (Occupational Safety and Health Administration)
- Title VII (Civil Rights Act of 1964)
Examples of liability concern
A supervisor may be held personally liable for violations of reporting hours worked and overtime pay discrepancies. This can range from docking hours for required lunch breaks to failing to record or acknowledge hours worked over 40 in a workweek.
Interference with an employee’s right to FMLA. Supervisors who attempt to interfere with an employee’s legal right for medical leave can be held liable. This includes discrimination or retaliation toward an employee who has requested FMLA, has been on FMLA, or requested an extension of FMLA.
COBRA / HIPAA / ERISA –
Supervisors who act as plan administrators may be liable for discrepancies, either discriminatory or monetary, and for failure to keep certain information confidential.
Discrimination or retaliation against “whistleblowers” can be a personal liability for supervisors.
Title VII –
Generally, Title VII does not have a provision for individual liability. However, supervisors may be named in a tort for actions such as “intentional infliction of emotional distress” or in a case of sexual harassment, and possibly assault. According to the EEOC, these actions, as well as actions of direct hiring or firing or indirect recommendations of such actions, can be construed as discrimination and may qualify for a possible tort lawsuit if it can be linked to:
- Equal Pay/Compensation
- Genetic Information
- National Origin
- Sexual Harassment
What roll do Torts play in a supervisor’s personal liability?
According to the Cornell Law School, “a tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers.” Basically, a tort is a civil wrong…a wrongdoing by one party against another and can be intentional or unintentional.
Supervisors may have a tort filed against them for defamation of an employee. If a supervisor makes a false statement that could possibly damage an employee’s reputation, a tort can be filed against them for slander. Likewise, a supervisor can defame an employee by writing statements or adding notes to employee’s files. This would be a libel tort. Just to be clear, slander is a verbal statement and libel is a written statement. Slander and libel can be accomplished simply by providing a negative reference, thus interfering with an employee’s future employment possibility.
Other forms of torts can include false imprisonment. This may involve refusing to allow an employee to leave during a conversation, such as during a performance or disciplinary review; or battery, which often accompanies sexual harassment claims. This is unwanted touching…no matter how slight. It could be something as simple as tapping an employee’s shoulder; or emotional distress. If an employee feels they are being picked on, they can claim harassment or emotional distress.
How to avoid liability
Below are some ways to avoid being held personally liable:
- Discipline and terminate in a private setting. Other employees do not need to hear a co-worker get disciplined or fired.
- Make sure you are specific and truthful in what you are telling employees and what you based your decision on.
- Focus on behaviors and not perceived attitudes.
- Allow for open discussion. Employees should be allowed to address or question decisions. They may not agree with the outcome, but they should be afforded the opportunity to inquire.
- Show some compassion for employees who may be going through a difficult situation at work or at home. Be willing to listen and offer solutions, particularly if they are work-related.
- Make sure your policies and practices are directly related to and up-to-date with current laws and regulations and ensure this information is communicated to all employees.
- Document, document, document! Make sure you are putting in writing all relevant facts, date, times, etc. when having a conversation with an employee. Remember…if it isn’t in writing, it never happened.
Recognize that as a supervisor, you can be held personally liable for actions against an employee, whether intentional or not. Keeping an open dialogue, showing concern for employees, and staying up to date on laws and regulations and what your role is in applying them equally and consistently will help keep you out of the courtroom.
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