Managers, HR staff, and business owners are well aware that their organizations can be sued by employees, applicants, and ex-employees for a variety of reasons from discrimination, to overtime violations to safety issues.  But if you are a manager can you be sued as an individual as well?

Yes, You Can Be Personally Liable in Some Situations

1. Discrimination Law
   The good news is that the majority of federal Circuit Courts of Appeal have found that there is no personal liability in discrimination cases brought under Title VII (e.g., race, sex, religion, etc.), The Age Discrimination in Employment Act, and the Americans with Disabilities Act.  The statutes are similar and the definition of “employer” under each of them is not interpreted as intended to apply to individuals.

   The bad news is that many state courts have found individual liability under state discrimination laws.  State law claims are typically included with federal claims.  Also, public sector managers may be liable under Section 1983 of the Civil Rights Act of 1871.

2. Fair Labor Standards Act
   Managers can be individually liable under the FLSA as that statute defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.”   The Equal Pay Act, which is part of the FLSA, provides for similar liability.  FLSA lawsuits (especially class actions) have spiked recently and are an increasing source of risk for employers generally.

3. Family and Medical Leave Act
   The FMLA is based on the FLSA.  Consequently, in the majority of the courts that have examined the issue, personal liability of managers has been found.  Possible liability under the FMLA might be particularly troubling, given the complexity of the FMLA and how commonly managers as well as HR people are involved in FMLA actions.

4. COBRA, ERISA & HIPAA
   Both COBRA and ERISA impose individual liability on those who act as plan administrators. Liability for actions under HIPAA may also exist.

5. State Common Law Claims
   State common law claims, based on case law not statute, can be another source of personal liability.  They can include such things as wrongful termination, intention/infliction of emotional distress, defamation or invasion of privacy.

6. Criminal Liability
   Going through the trauma of being named in a lawsuit and facing possible financial penalties are bad enough, but could you really go to the slammer or face other criminal penalties?   While certainly not a common occurrence it is possible that managers could be subject to criminal liability in certain circumstances.  Some examples could include: charges of obstruction of justice (e.g., destroying documents or making false statements), OSHA violations, or immigration related charges.

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