Managers, bosses, supervisors and even the owners of the companies that you work for can engage in some pretty horrible conduct. Depending on the nature of the conduct and the laws that are involved, it can be very complicated to figure out what course of action, if any, is best. Employment attorneys’ direct consultation will help you navigate your personal situation. For an example of how difficult figuring out your employment rights can be, a boss that repeatedly calls black employees the n-word and fires an employee for reporting race discrimination will not per personally liable under federal law but will be under Ohio’s anti-discrimination employment laws. Further, that same boss will be liable under federal law for wrongfully firing an eligible employee from taking medical leave under the Family and Medical Leave Act (“FMLA”), but there is no comparable statue in Ohio, for example.
This blog will provide an overview of when your boss, supervisor, manager, owner of your company and even coworkers can be liable for unlawful employment violations.
What does personal liability mean?
Best Employment Lawyer Answer: Personal liability means that following an award or judgment, damages can be collected from the individual defendant’s personal assets, such as bank account, investments, 401k plan, and/or through the forced sale of personal property (car, home, property, etc.). By comparison, organizational/entity liability means that the company will be responsible for acts of its employees and agents. Personal liability and organization liability are not independent, and both can be sought at the same time. When the same damages are sought against both individuals and the company at the same time, it is called joint and several liability.
Can I sue my manager personally for discrimination under Title VII?
Best Employment Discrimination Attorney Answer: No. Title VII of the Civil Rights Act of 1964 is a federal law that makes it illegal for an employer to engage in employment discrimination based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status) and national origin. Although Title VII’s definition of “employer” includes “any agent” of an employer, federal courts of appeals have consistently held that Congress did not mean to impose individual liability on such agents but meant only to import into Title VII the concept of respondeat superior liability, which is the legal doctrine making an employer or principal liable for the wrong committed by an employee or agent within the scope of the employment or agency. Thus, under Title VII the employer will be liable for the discriminatory or retaliatory acts of the manager or supervisor, but that manager or supervisor will not be personally liable for his or her own conduct.
Can I sue my boss individually for age discrimination under the ADEA?
Best Age Discrimination Lawyer Answer: No. The Age Discrimination in Employment Act of 1967 (“ADEA”) is a federal law that makes it illegal for an employer to engage in employment discrimination based on age (being 40 years or older). The ADEA uses the same language as Title VII and provides for only organizational liability, not individual liability.
Can I sue my supervisor directly for disability discrimination under the ADA?
Best Disability Discrimination Answer: No. The Americans with Disabilities Act (“ADA”) is a federal law that makes it illegal for an employer to discriminate because an employee has a disability as defined by the statute, has a record of such disability, or is perceived by the employer as having a physical or mental impairment that substantially limits a major life activity. The ADA uses the same language as Title VII and provides for only organizational liability, not individual liability.
Does GINA provide for individual liability of managers and supervisors?
Best Employment Attorney Near Me Answer: No. Genetic Information Nondiscrimination Act (“GINA”) is a federal law that makes it illegal to use genetic information in making employment decisions, such as hiring, firing, promoting, salary, and other terms, conditions, and privileges of employment. Because GINA refers to the definition of employer used by Title VII of GINA does not allow for individual liability.
Can my manager be held personally liable under the FMLA?
Best Medical Leave Lawyer Answer: Yes. The Family and Medical Leave Act (“FMLA”) allows eligible employees of covered employers to take 12 weeks (altogether or intermittently) of unpaid, job-protected leave for specified family and medical reasons. Employers who interfere with or retaliate against employees for asking for or taking such leave will be liable. The FMLA defines an “employer,” in part, as “any person who acts, directly or indirectly, in the interest of the employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). United States Courts of Appeals and District Courts have almost universally held that the FLSA’s definition of employer to impose individual liability on private-sector employers. See. Mitchell v. Chapman, 343 F.3d 811, 827 (6th Cir. 2003). However, there is a split of authority among the United States Courts of Appeals as to whether public sector managers and supervisors can be held individually liable under the FLMA.
Can managers and supervisors be held individually liable for overtime and minimum wage violations under the FLSA?
Best Wage & Hour Law Firm Answer: Yes. The Fair Labor Standards Act (“FLSA”) is a federal law establishes minimum wage, overtime pay, and recordkeeping requirements affecting employees’ wage and hour rights. The FLSA creates a private right of action against any “employer” who violates its minimum-wage or overtime provisions. 29 U.S.C. § 216(b). The FLSA defines the term “employer” broadly to include “both the employer for whom the employee directly works as well as ‘any person acting directly or indirectly in the interests of an employer in relation to an employee.’” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir.2011) (quoting 29 U.S.C. § 203(d)). Based on this broad definition, the “overwhelming weight of authority” provides that a supervisor, manager, or officer “with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” Patel v. Wargo, 803 F.2d 632, 637–38 (11th Cir.1986). “whether an individual fits that definition ‘does not depend on technical or isolated factors but rather on the circumstances of the whole activity.’” Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1310 (11th Cir. 2013)(quoting Alvarez Perez v. Sanford–Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir.2008); Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir.1973)).
The Equal Pay Act (“EPA”) uses the same standard as the FLSA.
Can individuals be held directly liable for military discrimination and violation of USERRA?
Best USERRA Lawyer Answer: Yes. Uniformed Services Employment and Reemployment Rights Act (“USERRA”) makes it illegal to discriminate against employees and applicants because of their military service. USERRA further creates strictly enforced obligations on employers when employees return to the civilian workplace after serving in the U.S. military.
USERRA’s definition of an “employer” expressly provides that any individual (not just management), whether acting on his/her own behalf or as a delegee of decision-making authority, can be held liable. Both administrative and judicial interpretations of USERRA agree that any individual can be liable under USERRA. Specifically, the Department of Labor (“DOL”) expressly rejected a proposed rule excluding individual decision makers from liability:
The [Equal Employment Advisory Council] proposed that the regulatory definition of employer explicitly exclude from liability for statutory violations individuals, such as managers or supervisors, who are not directly responsible for paying wages to employees….The Department has considered this comment and disagrees with the conclusion reached by the commenter. In comparison to the ADA, the ADEA, and Title VII of the Civil Rights Act, USERRA’s definition of “employer” is quite different and much broader.
Uniformed Services Employment and Reemployment Rights Act of 1994, as amended, 70 Fed. Reg. 75,246–01 (Dec. 19, 2005) (codified at 20 C.F.R. Part 1002). Indeed, even governmental employees, who are typically immune from liability under the doctrine of sovereign immunity, will be held personally liable under USERRA. See Bello v. Vill. of Skokie, 151 F. Supp. 3d 849, 859 (N.D. Ill. 2015).
Can managers and supervisors be held individually liable under state employment laws?
Best Employment Lawyer Near Me Answer: That depends on the state and particular circumstances. Finding out your rights from an employment lawyer will be best. Employment law attorneys will be in the best position to address your individual concerns.
Can a manager be held personally liable for discrimination in Ohio?
Best Ohio Employment Lawyer Answer: Yes. Although Ohio law recently limited a manager’s ability to be held liable as the “employer” for all unlawful discriminatory conduct against an employee with the amendment of R.C. § 4112.02(A), the amendment did not eliminate individual liability. Instead, the Ohio legislature specifically elected to keep R.C. § 4112.02(I) and (J), which holds “any person” liable his or her own conduct. Specifically, R.C. § 4112.02(J) hold any person liable when that person acts to “aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, to obstruct or prevent any person from complying with this chapter or any order issued under it, or to attempt directly or indirectly to commit any act declared by this section to be an unlawful discriminatory practice.” Moreover, R.C. § 4112.02(I), the anti-retaliation provision, holds “any person” liable for dominating in any manner against an employee who “opposed any unlawful discriminatory practice … or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing.”
Importantly, because of the “any person” language, it is not a defense that the defendant lacks managerial or decision-making authority. The Ohio Supreme Court, in Hauser v. Dayton Police Dept., 140 Ohio St.3d 266 (2014), affirmatively held that R.C. 4112.02(J) even imposes liability on individual political subdivision employees for aiding and abetting unlawful discriminatory conduct. Id. at ¶ 17.
There is a third way to create individual liability under Ohio R.C. § 4112.02(F), which provides individual liability for “any person seeking employment to publish or cause to be published any advertisement that specifies or in any manner indicates that person’s race, color, religion, sex, military status, national origin, disability, age, or ancestry, or expresses a limitation or preference as to the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any prospective employer.” As you can imagine, this type of overt discrimination is rarely documented in this fashion and thus, individual liability under (F) is almost never invoked.
Are there other ways for managers to personally liable?
Best Employment Lawyer Answer: Yes. There are a lot of different ways – more than can fit into a legal blog. These include liability under employment law statutes such as Occupational Safety and Health Act (OSHA), Consolidated Omnibus Budget Reconciliation Act (COBRA), Employee Retirement Income Security Act (ERISA), and the Immigration Reform and Control Act. There are torts that may make a manager or supervisor liable, such as tortious interference with contractual rights, assault and battery, intentional infliction of emotional distress, false imprisonment, and slander and libel. Of course, there are a lot of other laws and factors to figure out what course of action is best. Employment law lawyers will critically help you evaluate these laws and factors, and you should never try to go it alone.
How do I sue my employer?
Best Employment Lawyer Answer: If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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