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Planned Demotion and FMLA Leave

An employer has a key employee that was “called in” for a conference on his inability to do his job correctly on Monday. He then went on FMLA on Friday. He will be off several weeks. He was going to be demoted from manager to assistant manager due to his performance and more issues have surfaced since he has been on leave. Must he be reinstated to his management position then demoted? How should this be handled?

The federal Family & Medical Leave Act (FMLA) requires covered employers to reinstate employees returning from FMLA leave to their former position or a position with equivalent benefits, pay, and terms and conditions of employment. However, the law doesn’t protect employees who are disciplined for reasons unrelated to the FMLA leave.

If legitimate performance concerns exist and they can be proven to without a doubt be unrelated to the employee taking leave, then the employee can be demoted upon return from leave. But, be absolutely certain that clear evidence exists and such evidence is typically sufficient to demote an employee.

Under the FMLA, an employee isn’t entitled to any greater conditions of employment than if he had been continuously employed during the FMLA leave period. So, it would need to be clear as day that the employee would’ve been demoted regardless of him taking FMLA leave.

Since you discussed the employee’s performance problems with him prior to him taking leave and more evidence to support your decision to demote him was found while he was out, then you’re probably within legal parameters to demote the employee. However, considering the risk of the employee filing a FMLA claim of failing to reinstate him to his prior position you may want to consult with an attorney. Such claims can be costly to fight.

Or, to be on the safe side, consider reinstating the employee to his prior position. Upon his return discuss the concerns you had prior to his leave and the issues that were discovered while he was away. Clearly explain the level of performance that is expected of the employee going forward. Continue to monitor the employee’s performance as you would any other employee. Whether this is a suitable option depends on the employee’s position. For example, an accounting manager whose errors cost the company a significant amount of money shouldn’t be returned to the same position.


This entry was posted on Sunday, September 10th, 2017 at 6:01 pm and is filed under
Labor Laws.
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