The Third Circuit recently sided with the Fifth and Eighth Circuits in holding that the Family and Medical Leave Act (“FMLA”), 29 U.S.C.§ 2601 et seq., permits individual liability against supervisors at public agencies.  In reaching its conclusion, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole declined to follow Sixth and Eleventh Circuit decisions that do not permit individual liability against supervisors at public agencies. 

The Third Circuit rejected the Sixth Circuit’s reasoning in Mitchell v. Chapman, 343 F.3d 811 (2003) that the FMLA does not permit individual liability because the the statute’s individual liability provision does not refer to the its public agency provision.  The Third Circuit also rejected the Eleventh Circuit’s reasoning that an individual supervisor in a public agency always lacks sufficient control over an employee’s employment to subject him or her to individual liability under the FMLA. 

Instead, the Third Circuit followed the Fifth and Eighth Circuit decisions in looking to the FLSA (29 U.S.C. § 203(d)) for guidance in interpreting the definition of “employer” to include supervisors and in refusing to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned.

We will continue to follow this split to see how other Circuits weigh in and whether the United States Supreme Court will resolve this broad-sweeping liability issue.