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If you agree to a late return date, extend employees’ reinstatement date, too

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in Employment Law,Human Resources

The Minnesota Parental Leave Act (MPLA) provides up to six weeks of leave for childbirth and recovery or adoption. Employees who take leave are entitled to reinstatement.

It also includes a provision for extending parental leave, stating that leave “may not exceed six weeks, unless agreed to by the employer.” Until now, it remained up in the air what should happen to the reinstatement right if the employer agreed to a longer leave.

According to a recent decision, if the employer agrees to a specific return date, that not only extends the leave, but also the right to reinstatement.

Recent case: Anastasia was working for Old Dominion Freight Lines when she became pregnant and requested MPLA leave. Because her doctor recommended she take eight weeks to recover, she emailed her manager and asked to “come back to work on the 9th as long as that works with you.”

He responded, “Nov. 9 will work.” That meant Anastasia’s leave would last about a week longer than the six weeks specified in the MPLA.

Anastasia never returned to work because she was fired a few days be­­fore she was set to come back. She sued, alleging failure to reinstate under the MPLA.

Old Dominion argued that it had merely extended her leave, but that Anastasia lost the right to return to her job after six weeks had passed.

The court disagreed. It said that if an employee can prove she asked for more time off and got a specific return date approved, that approval also extends reinstatement rights. Otherwise, employees who rely on their employer’s agreement to extend leave would lose the very thing they were seeking—a longer break before returning to a guaranteed job. (Kersten v. Old Dominion Freight Lines, No. 11-1036, DC MN, 2012)

Final note: In addition to deciding whether the right to reinstatement can be extended by agreement, the court also considered another important aspect of the MPLA: Whether someone on MPLA leave can be refused reinstatement if she would have lost her job anyway due to “the good faith operation of a bona fide layoff and recall system.”

In this case, Old Dominion ex­­plained that while Anastasia was recovering from childbirth, the company’s financial condition changed, necessitating a layoff. Anastasia was picked for termination because she was the least senior full-time em­­ployee. The railroad claimed it had a “standard operating procedure” requiring the least senior employees to go when the budget got tight.

Unfortunately for Old Dominion, that wasn’t a written policy. Plus, when questioned, a company representative testified that employees who were terminated never got a chance to return.

In his words, “[W]e terminate. We don’t lay off. We don’t leave that possibility that they may come back.”

The court reasoned that the informal, unwritten policy couldn’t be a bona fide layoff and recall system since no recall was possible. That meant Anastasia’s termination violated the MPLA. That’s in sharp contrast to the FMLA, which allows termination if the employer can show it would have dismissed the employee for reasons unrelated to the FMLA.

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