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

2. 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

6. 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.”

8. 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)

9. 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

10. 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.

11. 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

13. 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

15. 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.”

16. Why Go After the Supervisor?

17. 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?

18. 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).

19. 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

20. Questions???

21. Thank You