A Detective who generally worked 8AM – 4PM in an office with weekends off but was subject to call outs at night or during weekends and took FMLA for 3 months. During that time her slot in the Detective Division needed to be filled in order for the new investigations to get done. She returns to work and since the position is filled she is assigned to the patrol division in a patrol unit working 8AM – 4PM with Saturday and Sundays off with no calls out. Would this be a violation of FMLA?
Yes, this is a huge violation of FMLA. The employee who takes FMLA is entitled to be returned to the same job, with the same salary, working conditions, benefits and responsibilties after FMLA. Being transferred from detective to patrol is a demotion in anyones eyes. This would be a violation of the FMLA law even if the employee were being paid detectives wages while on foot patrol.
It was okay for the department to fill the detective slot while this employee was on FMLA. In fact, it was a good idea. But the employer should have made it clear to the new detective that he or she was being promoted on a temporary basis only, and that once the employee returned from FMLA the temporary detective would go back to patrol.
It appears that the employer is retaliating against the employee for taking FMLA, which is a violation of the FMLA regulations enforced by the U.S. Department of Labor. In addition, because this employee is female, this may be illegal discrimination based on sex or pregnancy, which is enforced by the EEOC. (Just to give you an idea of the risk here, a school district recently paid $570,000 to settle an EEOC discrimination case involving two female workers.)
Our suggestion is that you conform to the law by reinstating the female detective to her former job.
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