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Beware job alterations after FMLA leave

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in FMLA Guidelines,Human Resources

Employees who take FMLA leave are entitled to their old jobs or an equivalent one when they return. If the old job isn’t available, the new job must have the same pay, benefits and other terms and conditions of employment. That includes hours, shift assignments and level of responsibility.

Offering a less prestigious position or one with different hours is asking for trouble.

Recent case: Krista Boggs worked as an auto title clerk for more than 20 years until she hurt herself at work and then had what she called a nervous breakdown. When her employer suggested she take FMLA leave, she did.

Meanwhile, the employer hired two other title clerks to perform Boggs’ job in her absence. When she returned, she was immediately informed that her old job had been eliminated due to economic concerns, and that she would have to take a cashier position. The cashier job paid the same and had the same employee benefits, but required working on Saturdays and arriving earlier.

Boggs quit and sued, alleging she had been denied reinstatement after taking protected FMLA leave.

She argued that the cashier position was far less prestigious and that the new schedule interfered with her child care responsibilities and her ability to care for an ill husband.

The court said Boggs’ case should go to trial.

It reasoned that the cashier job could be considered less prestigious than the title clerk position and that the new schedule was a big enough change to be sub­stantial.

Plus, the court didn’t buy the economic downsizing argument, since there were now more title clerks than before Boggs went on leave. (Boggs v. Automobile Operations, No. 410-CV-00491, ED TX, 2012)

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