On January 31, 2012, the Third Circuit held that the Family Medical Leave Act of 1993 ("FMLA") permits individual liability for supervisors at public agencies. The court concluded "an individual supervisor working for an employer may be liable as an employer under the FMLA," and it found no distinction between supervisors who work for public agencies and those who work for private employers.

In Haybarger v. Lawrence County Adult Prob. & Parole, 667 F.3d 408 (3d Cir. 2012), Haybarger, a long-term employee working as the office manager, had Type II diabetes, heart disease, and kidney problems, which resulted in her frequently missing work. She testified that her supervisor was unhappy with her absences even though he acknowledged that they were due to her illness. In March 2004, the employee was formally disciplined and placed on a six-month probation allegedly because her "conduct, work ethic[,] and behavior [were] non-conducive to the Adult Probation Office." In October 2004, after an alleged lack of improvement, her employment was terminated.

The employee filed suit alleging, among other things, FMLA violations against her supervisor. The district court ruled that, while the FMLA permits individual liability against supervisors at public agencies, the employee failed to present sufficient evidence to show that the supervisor had control over the terms and conditions of her employment to treat the supervisor as her employer. The Third Circuit reversed the district court.

The Third Circuit agreed that supervisors of public agencies may be individually liable for FMLA violations. In so holding, as a matter of first impression, the Third Circuit agreed with the Fifth and Eighth Circuits and declined to follow the opposing views of the Sixth and Eleventh Circuits. The court relied on the FMLA's broad definition of employer, 29 U.S.C. § 2611(4)(A)(ii)(I), which includes "any person who acts, directly or indirectly, in the interest of the employer" as well as the Department of Labor's regulations, 29 C.F.R. § 825.104(a), which similarly include "any person acting, directly or indirectly, in the interest of a covered employer."

The Third Circuit, however, disagreed with the district court regarding the supervisor's control over the employee. The Third Circuit held that a rational juror could find that the supervisor "had sufficient control over Haybarger's employment so as to be subject to liability for a violation of the FMLA that he caused to occur."

In reaching that conclusion, the court used the "economic reality" test, which considers whether the supervisor "(1) had the power to hire and fire the employee[], (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." The Third Circuit observed that the supervisor was acting in the interest of the public agency employer and, although the supervisor lacked authority to fire Haybarger, he exercised substantial authority over the termination decision and recommended the decision. Finally, the court noted the significant control that the supervisor exercised over the employee's conditions of employment, including preparation of her performance reviews and disciplining her.

Under Haybarger, the Third Circuit has made clear that supervisors for both public agencies and private employers may be held individually liable under the FMLA (like the FLSA) for alleged violations if the supervisor has sufficient control over the employee's employment, such that "the individual supervisor carried out functions of an employer with respect to the employee."