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Aug13

How to handle the demotion of an FMLA employee

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We have an employee out on FMLA leave. She holds a position that pays almost double what minimum wage is in Alabama and has a private office. She has had this position for over 4 years and has excellent yearly evaluations and has never been written up. What I am wondering is when she returns can we put her in a position that would normally pay just a little over minimum wage, but keep her salary the same as when she left. She would be in the same department, but have a different job title. She has about 17 years experience in her field and would be moved to an entry level clerk position. If the wage,hours and department are the same will it matter if the title and job duties are different. I thought FMLA just meant a simular situation to what the employee had when they went out on leave. Also the other entry level clerks make far less than the employee returning from leave. they all know she makes more than a clerk. Will they be discriminated against if we are paying her double what they make for the same job position. We have set a precedence for holding job positions with other employees, does that matter? Thanks

No, this would probably not be legal. The federal Family and Medical Leave Act or FMLA requires that the employee be returned to his or her job after the leave ends. This includes the same title, duties, salary, working conditions and benefits. Not returning the employee to the same job is illegal under FMLA.

(In very rare cases it may be impossible to return the employee to the same job. Suppose Jane is the Executive Chef aboard the cruise ship Aloha Princess. While she is on FMLA, the ship sinks. The employer cannot possibly give Jane her old job back…because the ship no longer exists. The employer must give Jane a job as executive chef on a different cruise ship, such as the Maui Princess.)

Giving this employee a *similar* job with different title and job duties is not the same as returning her to her job.

In addition, your concerns about discrimination if you paid this employee so much more than the other clerks is valid. You would also likely be committing illegal discrimination against the employee on FMLA. So we advise that you return this employee to her job.

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11 Responses to “How to handle the demotion of an FMLA employee”

  1. Diane Hanson Says:
    October 7th, 2009 at 3:37 pm

    I believe the answer given is incorrect. FMLA requires an employer to give the person the same or equivalent/similar job. With that said an employer can not take a office worker and return the person to a blue collar position. This answer was given to be direct from the DOL and is also in the regulation book 825.214 “Rights on Returning to Work.”

  2. Caitlin Says:
    October 7th, 2009 at 3:46 pm

    Hi Diane! I think if you re-read the answer above, you will find that we agree with you. The US DOL has ruled many times that the employee must be returned to his or her job. If that is not possible, the employee is entitled to a job with the same working conditions, wages, duties, benefits, etc.– which usually means the same job. In the example above, the employee returning from FMLA was basically being given a different job: different duties, hours, benefits and title, with just the salary remaining the same. So our answer was, that would be unlawful. The employee needs to be returned to her original job, or one very like it. Do you disagree? ~ Caitlin

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    April 15th, 2010 at 5:15 pm

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  4. Caitlin Says:
    April 16th, 2010 at 9:12 am

    Thanks for reading, Kelley!~ Caitlin

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    April 16th, 2010 at 3:40 pm

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  6. Caitlin Says:
    April 20th, 2010 at 7:40 pm

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  8. Rai Lindsey Says:
    March 7th, 2011 at 9:42 pm

    So just to make sure I have this correct. I have an employee that went on FMLA and we are looking into to sending her to a different department. She is keeping the same pay and possibly the same hours but she will be placed in the position she started in a year and a half ago. She has already been advised when she called and spoke with the Assistant Manager and is aware that her duties and have changed due to the training she missed while out on leave. However she has been advised by her fellow co workers that no training has been held. The department she was in does require additional testing and has its own probationary period in which she has already passed. Right now we are in a slow period center wide and there will be very little work for her to return to. My concern is the fact that she is aware that we are planning on hiring more people into this deparment and that another person on FMLA in the same dept was demoted due to performance issues, she will not take it so well. Is this legal?

  9. Caitlin Says:
    March 8th, 2011 at 7:07 am

    Hi Rai! No, this is probably not legal. Under FMLA, the employee must be returned to her job. Not just a job with similar wages and hours, but the same job that she held before she was on FMLA.

    Time off under FMLA cannot be used as an excuse to demote or transfer a worker, even if training did occur while the person was off. An employee cannot be required to complete a new probationary period after FMLA. Your plan is depriving the employee of her rights under FMLA, and it is probably illegal discrimination as well. HTH, and thanks for reading the blogs!~Caitlin

  10. Mitzi Says:
    December 30th, 2011 at 2:25 pm

    Can a firm not take your wages or benefits but hire someone over you and take all your authority away that you previously held when you are on intermittent FMLA?

  11. Caitlin Says:
    December 30th, 2011 at 3:39 pm

    Hi Mitzi! No, this is generally illegal. When an employee returns from FMLA, she must be returned to the same job as before. This includes the same duties, working conditions and responsibilities. Each time you “return” from using intermittent FMLA, your job should be restored. Changing an employees duties may also be illegal retaliation against an employee for taking intermittent FMLA. Talk to your employer and if the problem is not remedied, file a complaint about violation of your FMLA rights with the U.S. Department of Labor at http://www.dol.gov. HTH,and thanks for reading the blogs!~ Caitlin

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