When returning from FMLA, what is considered to be an “equivalent” position?
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When returning from FMLA, what is considered to be an “equivalent” position?
I returned from FMLA leave to be told our dept was restructuring due to 2 other employees resigning while I was away. Now 3 temp employees are in our dept. I discovered 80–90% of my job duties would not be returned to me and retained by the temp that covered for me and a new temp hired. My new duties have been verbal communicated to me as – 10% duties would be retained; 40% duties performed by an outgoing employee in a lower position (duties I had prior to a promotion in 2009); 50% a newly created position that apparently doesn’t have a job description yet. Basically pay/benefits the same but responsibilities, skills and competencies questionable. Is this legally equivalent?
Asked on May 1, 2011 under Employment Labor Law, California
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
If you are receiving closely similar pay and benefits, then the position is equivalent for this purpose. An employer is under no obligation, under the FMLA or any other other law, to never change or redefine an employee's position, responsibilities, or duties. Certainly, it is possible that in some ways, those changed responsibilities or duties may be less desirable to the empoloyee than the ones he or she had previously had; however, the FMLA is not a straight jacket for employers. It requires them to treat employees fairly in terms of not taking economic action against them for using their FMLA rights (e.g. not paying them much less or stripping benefits), but otherwise allows employers to redeploy or redefine staff to meet business needs in accordance with the employer's business judgment.
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