Am I entitled to my same pay possibility after a disability leave of absence?

UPDATED: Sep 30, 2022

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Am I entitled to my same pay possibility after a disability leave of absence?

I broke my arm and was unable to work for 3 months as a food server. They hired someone to cover my shifts while I was out. Upon returning this new hire is still scheduled on my same shifts as an extra server which is not necessary. I am actually being called off some shifts due to the fact we do not need an extra server on so to save on labor I may be called off every 4 shifts. I am making half of what I made before. Is this legal?

Asked on August 3, 2017 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If you were out using Family and Medical Leave Act (FMLA) leave, they had to return you to a comparable, but not identical, position when you returned: e.g. same number of hours, same pay, but does not have to be the same shifts or doing the same exact duties. If they fail to return you to a comparable position after FMLA, that may be illegal; contact your state's labor department to file a complaint. Cutting your shifts (calling you off some shifts), since that reduces your hours and pay, may be illegal.
If it was not actual FMLA leave, however--if they employer just voluntarily let you take time off from work (whether or not you were receiving disability during this time)--then they are not required to return you to a comparable position and could call you off shifts.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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