Expect litigation if you try to quibble over return-to-work schedule following FMLA leave — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Expect litigation if you try to quibble over return-to-work schedule following FMLA leave

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Employees who take protected FMLA leave are entitled to reinstatement to the same or a substantially similar job once cleared for work after their leave is over. Reducing the employee’s hours on return could be seen as interference with FMLA rights.

If the employee sues, don’t expect to get the case tossed out fast just because you claim the employee could have returned to his regular schedule anytime.

If the employee claims his schedule was reduced and you claim it was only temporary, the court will make you prove it.

That means discovery, depositions and, probably, some very hefty legal fees.

Recent case: Adam worked as a delivery driver for several Chinese restaurants. He took FMLA leave for a sciatica attack, and alleged that when he was ready to return, his  schedule was reduced. The employer claimed the reduction was only temporary and for his own good. It said Adam was welcome to return to work at any time. It asked the court to throw out the case, arguing that it was Adam’s decision not to return.

The court said it needed much more information before it could dismiss the case. Adam will have a chance to prove that the employer never offered him his job back. (Rokuson v. Century Empire Szechuan Restaurant, et al., No. 12-CV-1615, ED NY, 2015)

Bottom line: If an employee is cleared for work, give him back his job without a reduced schedule. Don’t expect a reinstatement offer during a lawsuit to get you off the hook.

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