The Buck Stops with You: When a Supervisor Can Be Liable A Special Presentation for the 2018 EANE Management Conference Presented By: Mark Adams, SPHR, SHRM-SCP Director of HR Services Employers Association of the NorthEast

Agenda Separating the fact from fiction What claims can open a supervisor to liability Why go after the supervisor? How likely would a supervisor be a target to litigation? What to do now? Questions

Separating the Fact from Fiction Fact: Depending upon the claim, a supervisor can be held liable for their actions. Fact: Depending upon the circumstances, the company may not be able to have their counsel represent their supervisor. Fact: “If sued, a supervisor may be on the hook for their own legal fees and liability.”

Discrimination and Harassment No supervisory liability under federal anti-discrimination law Title VII – race, color, religion, sex, national origin Americans with Disabilities Act (ADA) Age Discrimination in Employment Act (ADEA) Individual liability exists under MA and CT law Aiding and abetting, inciting unlawful behavior RI – does not (Mancini v. City of Providence)

Discrimination and Harassment Woodason factors: Named individual was an alleged perpetrator of unlawful harassment; or Direct evidence of discrimination and the perpetrator was in supervisory position with direct control over employee; or Circumstantial evidence of discrimination but proved that: Individual had duty to act on behalf of the employer; Individual’s action or failure to act implicated rights under C. 151B; and Act or failure to act was in deliberate disregard of the employee’s rights

Discrimination and Harassment Denault v. Community Mental Health Affiliates: No individual liability for Connecticut supervisor accused of sexual harassment Derogatory comments of women of color Making stereotypical comments about their sexual activity Court concluded that since the supervisor was the perpetrator of the behavior that the “aiding and abetting” provisions did not apply You cannot aid and abet yourself.

Intentional Infliction of Emotional Distress “Tort” (wrongdoer) claim…elements: Intentional or reckless conduct Conduct was extreme and outrageous Atrocious and intolerable Based on a “reasonable person standard” Conduct caused severe emotional distress Medical, psychological consequences Supervisor was responsible for the conduct Remedies: Jury trial: compensatory and punitive damages possible

Fair Labor Standards Act “Employer” defined to “any person acting directly or indirectly” in the interest of the employer Whether the individual has a significant ownership interest in the corporation; Had the power to hire and fire; Supervised and control employee work schedule or conditions of employment; Determined the rate and method of payment; and Whether the individual maintained employment records; All factors do not have to be met

Family and Medical Leave Act Borrows FLSA definition of employer Individual liability can apply Graziadio v. Culinary Institute of America Employee went out care for son with diabetes and later for second son with broken leg Communication broke down, employee was fired Sued employer, and HR HR Director was individually liable: “in FMLA context….controlled in whole or in part….rights under the FMLA.”

Why Go After the Supervisor?

Likelihood of Individual Liability Who are we talking about? President? Department head? Front line? What was their role? Active participant in the unlawful behavior? Severe or outrageous behavior? Knowingly allow the behavior to happen? Decision maker on an unlawful action? Did they retaliate?

What to Do Now….Company Knowledge is power - train your managers and supervisors! Understand that your manager and supervisor behavior can frame the liability that your organization can face. Even if your organization and supervisors skirt liability, poor supervisory action can lead to other costs (morale, turnover, union organizing, lost business).

What to Do Now….Supervisor Continue self-development Leadership and supervisory training Model behavior to sound business principles Follow the 3 P’s…Patience, Poise and Professionalism…avoid emotional outbursts Actions should support policies & procedures Document where possible

Questions???

Thank You