If business takes a turn for the worse, do we still have to hold job after FMLA? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

If business takes a turn for the worse, do we still have to hold job after FMLA?

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in FMLA Guidelines,Human Resources

Q. Under Texas law, if I have an employee returning from maternity leave, do I have to give her the same job hours as before her leave? The reason for the reduction in hours is due to sales being down.

A. You ask a good question. Texas employers are subject to the federal FMLA, which guarantees eligible em­­ployees up to 12 weeks of parental leave for the birth, adoption or foster placement of a child under three years of age.

Upon an employee’s timely return, the employer must reinstate the employee “to the same position as previously held or a comparable position with equivalent pay, benefits, and working conditions.”

While employers must restore employees to their former jobs or comparable ones, they’re not required to ignore their very real business needs.

If, in fact, declining sales revenue has required a reduction in the hours of the employee’s position, or a comparable one, you have a lawful business justification for the reduction. However, you should be prepared to show with evidence that the justification was legitimate, nondiscriminatory and based on a business necessity—not on the employee’s protected status or disability.

In other words, if you choose to reduce your ­employee’s hours, you must demonstrate that a legitimate business justification—necessity, not discrimination—motivated your decision. Document everything.

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