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The question of whether individuals can be personally liable under the Family and Medical Leave Act ("FMLA") has been percolating in the federal courts for more than a decade. Over this period, district courts throughout the country have consistently held that individuals working for private employers can be held liable for FMLA violations. Given the length of time over which the courts have been considering this issue, it would seem safe to assume that the courts have fully examined the factors that might lead to individual liability, such as the FMLA's statutory language, other courts' interpretations of similar language, the policy behind the statute, and whether public policy supports liability. Such an assumption, however, is unwarranted. Courts interpreting the FMLA as providing for individual liability have not engaged in a comprehensive discussion about why the FMLA dictates this result. Instead, the courts have merely punted, failing to provide any thorough analysis, by either relying on the "plain" language of the definition of "employer" in the statute or by referring to similar language in the Fair Labor Standards Act ("FLSA"), which has been interpreted as allowing individual liability. This cursory analysis fails to consider the ample support that exists for denying individual liability under the statute and that the statutory construction conducted by the courts to date is inadequate.

To date, no appellate court decisions directly address whether individual liability is appropriate in the private employer context. While there is some support for the proposition that individual liability is appropriate under the FMLA, a thorough examination of the statutory language, its purpose, and public policy demonstrates that the stronger argument is that no individual liability exists. At the very least, courts should engage in a thorough analysis about the reasons dictating such liability, rather than relying on the rather two-dimensional discussion that has to date characterized the FMLA individual liability issue. To provide proper context for this discussion, this Article begins by providing a basic explanation of the FMLA and its liability provisions, as well as an examination of the development of the FMLA's individual liability jurisprudence. In Section III, the Article examines how language in other labor and employment statutes supports a finding that individuals should not be liable under the FMLA. Section IV examines how interpreting the FMLA's definition of "employer" as referring to individuals creates anomalies within the statute. Finally, Section V examines the public policy of individual liability, concluding that such liability is not warranted under the FMLA.


This article was published in 71 Mo. L. Rev. 71 (2006).