Returning from FMLA: Must New Position Have the Same ‘Status’?

case in pointYour waitress says, “We don’t have Diet Coke. We have Diet Pepsi. Will that be okay?” Both will wash down your burger and both have zero calories. But are they otherwise equivalent enough to be substitutes?

When an employee returns from absences that are covered under Family and Medical Leave Act (FMLA), he or she is entitled to “the same or an equivalent position” (see box below). But what counts as “equivalent”? As this new court ruling shows, it goes beyond simple pay, benefits and working conditions …

Case in Point: In her position as a project manager at an Ohio bank, Paula Crawford used the skills she learned in law school to review government regulations and contract agreements. On two occasions, Crawford took two months of FMLA leave from her bank job to help treat post-traumatic stress disorder, anxiety and depression. (She had been held hostage at gunpoint at a previous job.)

When she returned to work after the second round of FMLA leave, she was told she would now serve in a Quality Analyst II position at the bank, which required her to do somewhat more clerical work. Her pay and benefits remained the same.

Crawford sued for FMLA interference and retaliation. The bank defended itself by arguing that Crawford’s salary, work hours and bonus potential remained exactly the same. A lower court agreed, reasoning the bank had a legitimate economic reason to change Crawford’s job and that the two positions were relatively similar.

Crawford didn’t give up. She rejected the “same enough test” and appealed her case. This time, the court reversed and ruled in favor of Crawford. It noted that, “Even if both positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.” (JP Morgan Chase, 6th Cir., No. 12-3698, 8/6/13)


3 Lessons Learned … Without Going To Court

1. Count your pennies. The court observed Crawford’s pay and benefits were exactly the same as after she took leave. But, money isn’t everything.

2. Give returning employees a status symbol. The judge recognized Crawford’s argument that her new position carried less opportunity for career advancement and, therefore, it did not provide her with the same status as she had with her former job. 

3. Use your retaliation stopwatch. The court highlighted that only a short period of time had elapsed between when Crawford had exercised her FMLA rights and when she returned to a new assignment.  Tick tock. Watch your clock.


Employees’ Right to Reinstatement After FMLA Leave


“On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment … An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.”

Source: U.S. Department of Labor’s FMLA regulations § 825.214