The Family and Medical Leave Act turned 20 years old earlier this year, yet it remains problematic for many employers. As an old saying goes “the devil is in the details.” Missing those details is how you get an FMLA lawsuit.
The definition of “equivalent”
According to Fact Sheet #28 on the FMLA “Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.” All of this hinges on the definition of “equivalent.” According to the dictionary equivalent means “Equal, as in value, force, or meaning. Having similar or identical effects.”
There are companies in the past that have tried to return people to positions and pay them at the same rate, maintaining their title and benefits. However, the nature of the job had changed. I remember a case where a woman was returned to a VP position in title and pay but one without VP responsibilities. She was doing clerical work, with which she was unhappy. She sued and won.
More modern case
Jeff Nowak, in his blog post When an Employee Returns from FMLA Leave, What Does Same or Equivalent Position Actually Mean? tells us of a more recent case that is very similar to the one I described. The case was one of a project manager who upon returning to work was put in a position with the same pay, benefits, hours and working conditions. However, the title was different, the nature of the decision making was different, the advancement opportunities were different, and the reporting relationship was different. Nowak reports that the court rejected the employer’s argument that the position was equivalent because it paid the same and offered the same benefits. He quotes the court, which said, “Even if both positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.”
The lesson for employers is that when returning someone from FMLA it may be best to put them back into the position they vacated to take leave. However, sometimes you don’t want to do that. You find that the person’s replacement does a job that is so much better than the other person. When that happens then you had better hope that you have a position that offers the same pay, benefits, status, duties, responsibilities, and opportunities. Because if you don’t you will most likely get sued. So plan ahead of time and have a plan that involves temporary replacements and stick to it.