Whether a Human Resources Director will be deemed the “employer” and held individually liable for alleged violations under the Family Medical Leave Act (“FMLA”) should be left to the jury, according to the Second Circuit’s recent FMLA decision. In Graziadio v. Culinary Institute of America, et al., 15-888-cv (2d Cir. Mar. 17, 2016), the Second Circuit found that there could be a viable claim for individual liability under the FMLA and it also announced the standard for what could be considered unlawful “interference” with FMLA rights.
On December 3, the Second Circuit Court of Appeals became the most recent entrant into the circuit conflict on the question of when and under what circumstances an employee’s use of a computer to gain access to unauthorized information constitutes a violation of the Computer Fraud and Abuse Act. Over a dissent, the Court held that an employee cannot be convicted of violating the CFAA when he uses a database, to which he has been granted access, in a manner that is prohibited by company policy. With the Second Circuit joining the Fourth and Ninth Circuits in the minority on the issue, the answer continues to turn on the jurisdiction in which the suit was brought. Employers should take note because the decision reinforces the need to consider carefully whether and how to limit employee access to sensitive company information within its network—e.g., by use of written policy or technical access restrictions—and how those protections will play out in court if an employee takes company information for use in future employment.