Is my employer violating FMLA laws, if I beng made to return to a different position?

UPDATED: May 25, 2012

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Is my employer violating FMLA laws, if I beng made to return to a different position?

I recently returned to work from maternity leave. Upon returning, I am not able to work the same hours that I was working before leaving. My employer is making me work a position that is lower than the position I had before maternity leave.

Asked on May 25, 2012 under Employment Labor Law, Illinois


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The employer *may* be violating the law, if the change in position or pay or retaliation for having taken FMLA leave. It would be lawful, however, if motivated by some legitimate, non-discriminatory basis: for example, a restructuring or downsizing, or if you'd had performance issues prior to taking the lease.

(Note: the above assumes you have suffered some material damage or detriment from the change. However, if you're still being paid the same, then you might not have a cause of action; the law prevents you from being disadvantaged due to having used FMLA leave, but it does not guaranty you the exact same position upon your return--just one that is comparable.)

From what you write, it appears you could make out a prima facie (basically, "on its face") case of unlawful retaliation--you therefore would seem to be able to sue if you want, forcing your employer to then articulate and, if necessary, prove a non-retaliatory reason for their action. It appears as if, assuming you have lost pay or suffered some other detriment, it would be worthwhile for you to consult with an employment law attorney about possibly bringing a legal action.

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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