Human Resource Blog

Returning to Work After FMLA in South Dakota

If an South Dakota worker returns to work after being out for eight weeks of FMLA, can his supervisor tell him that he will only be getting half of his usual hours back, simply because another worker was hired to replace the one out on leave?

In short, the answer is no. This would be an illegal action under the federal Family and Medical Leave Act. It is just not allowed for employers to single out certain individuals when they return from being out on FMLA leave and reduce their work hours.

Sometimes, however, employers might experience lay-offs or have general reductions in hours for a multitude of employees. In such situations, it would be okay to include those persons returning from FMLA leave in reducing their hours, as well.

For clarification, suppose that Becca is a full-time administrative assistant at a large corporation. Becca has to go out on FMLA leave, so her boss decides to hire a replacement for her. Upon Becca’s return to work, her boss informs her that he is only able to give her 20 hours per week, and wants to give the replacement worker the other 20 hours per week. Out of the other 100 administrative assistants in this organization, none of them have had their hours reduced. This would be a prime example of a violation of the FMLA regulations.

Let’s look at another example. Suppose that Julie works as a desk clerk at a hotel. Her normal schedule is to work 40 hours per week. When Julie goes out on FMLA leave, the tourist season comes to an end, and all desk clerks have their hours cut in half. When Julie returns to work, she is told by her boss that she is only going to get 20 hours per week. This situation would be legal, because Julie was not singled out for having her hours reduced.

It would be illegal for any employer to look upon FMLA leave as something that reflects negatively on a worker, thereby affecting employment actions such as promotions, training, performance reviews or scheduling. By federal law, employees cannot be penalized for legitimately using FMLA leave. JH