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Ohio FMLA

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One of our full-time employees in Ohio is returning to work after 10 weeks of FMLA. The HR department says he has to give her the same number of hours as she had before she went on leave. Her supervisor says that he has hired someone new, and can only give the returning employee half of her normal hours. Who is right?

The HR department is right. The Family Medical and Leave Act, or FMLA, guarantees 12 weeks of job-protected leave. Employees are eligible if they have a serious illness, they’re caring for a seriously ill member of the immediate family, or they are caring for a newborn.

The agency responsible for enforcement of the FMLA is the Wage and Hour Division of the U.S. Department of Labor.

Now, if hours were cut for more than one employee, say as a result of budget cuts or a lull in the business cycle, then the move would be legal. But this sounds like a case of singling out this particular employee. That would violate the FMLA.

It’s important to understand what is meant by “job protected.” The phrase means that when an employee on FMLA leave returns within the allowable 12-week period, that employee is entitled to a position with the same pay, hours, working conditions, and benefits as before. This usually means returning to the same position.If the employee’s hours were reduced, however, whether or not she had gone on leave, the supervisor would have been on solid legal ground.

Take the example of Rebecca, one of five keyboardists working 40 hours a week in a small firm on the West Coast creating web content for clients who sell merchandise on-line during the Christmas season. If Rebecca returns and finds that her supervisor wants to reduce her hours because he wants to keep her “temporary” replacement on at half time, she would be within her rights to file a complaint. Her boss would be in violation of the law. But if, while she was gone, the firm had cut all keyboardists’ hours due to the end of the shopping season, the move would be legal.

Problems like this one often arise because supervisors forget or neglect to tell the temporary replacement that the position is, in fact, temporary. That leaves a supervisor with two people who expect to work in that position. The supervisor could be looking for a way to please both employees. JH