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No Job Offered to Employee on Leave
Equivalent Work Must Be Offered
So What Does "Equivalent" Really Mean?
Twelve weeks may seem like an eternity to hold a job open for an
employee on FMLA leave. But if you can’t offer an "equivalent
position" when the leave ends, holding that spot open might be your
best bet.
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The
Family Medical Leave Act (FMLA)
gives covered employers the choice of reinstating an employee on
FMLA leave to the same or an equivalent position at the end of the
leave. Thus, even though you do not have to leave an employee’s job
unfilled during the leave, you still must provide a position that is
equivalent in terms of factors such as status, pay, and benefits. If
you don’t, you may find yourself facing a lawsuit, as one Maine
company discovered. In Watkins v. J&S Oil Co., No. 98-1002,
(12/30/98), the First Circuit Court of Appeals upheld a lower court
decision that found the employer violated the FMLA by failing to
offer the manager an equivalent position after he took time off
under the FMLA.
No Job Offered to
Employee on Leave
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In this
case, the employee took three months of FMLA leave following a heart
attack that necessitated surgery in 1994. The company’s human
resources manager contacted him a few weeks into his leave and asked
when he intended to return to work. The employee wasn’t sure at that
point but asked if he still had a job as station manager. He was
told he’d been replaced. A short time later, the HR manager
contacted him again and discussed in vague terms two possible
positions for the employee: a not-yet-created office job and a spot
as a third-shift gas station attendant, which would mean a pay cut.
He made no guarantees, however, that the employee would be offered
either job.
The HR
manager called a third time to inform the employee that his leave
had expired and to find out whether he planned to return to work.
The employee asked whether his station manager position was
available. When he was informed that it was not, the employee
stated, "I think we’re going to part company." He subsequently sued
his employer for violating his rights under the
FMLA and was awarded
$43,000 in damages by the district court. The company appealed the
decision.
Equivalent Work Must Be
Offered
The
First Circuit upheld the lower court’s decision, finding that
although the company did not have to keep the employee’s original
position open until he returned, it clearly failed to offer him any
equivalent work. According to the court, an equivalent position
means "that which is substantially equal or similar, not necessarily
identical or exactly the same." Regarding the employee’s
reinstatement, the company only raised the possibility of the
employee applying for an office job that never became available or a
lesser paying gas attendant job. Since neither job was actually
offered to the employee, and there was a question as to whether they
were "equivalent" positions, the company violated the FMLA.
So What Does
"Equivalent" Really Mean?
This
court did not spend a lot of time examining what is an equivalent
position under the FMLA since the company did not offer the employee
any position. The FMLA regulations shed substantially more light on
the subject. According to the regulations, 29 C.F.R section 825.215,
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." In
addition, it must involve "the same or substantially similar duties
and responsibilities, which must entail substantially equivalent
skill, effort, responsibility, and authority." In other words, an
equivalent position is virtually the same as the employee’s former
position. To determine what positions might be equivalent, you
should consider the following factors:
•
Equivalent pay and benefits. Employees must be offered the same
wages and benefits as in their original positions, including similar
overtime pay opportunities and any unconditional pay increases (such
as cost-of-living increases) that occur while they’re on leave.
•
Equivalent job duties. If the employee supervised several
employees or exercised discretion in his position, the new job must
include similar job duties.
•
Location. The new job can be in a different location; however,
there cannot be any "significant increase" in commuting time or
distance.
•
Schedule. An equivalent position requires that the employee
works a shift or schedule that’s similar to his original job. If he
worked the day shift, the night shift is not equivalent.
•
Retirement and pension plans. An FMLA leave is not considered an
interruption of service in terms of vesting or eligibility, so the
employee gets to continue participation in any plans.
Providing an equivalent position may be easy in some situations,
such as when several similar positions are available in one job
category. But the more specialized the job or the skills required,
the harder it will be for you to offer a position that courts will
consider to be "equivalent." Thus, you should evaluate each job
using the FMLA guidelines, and you should give serious consideration
to the possibility that holding a job open for 12 weeks
(inconvenient and expensive as it might be) may be the only way to
comply with the FMLA.
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Personnel
Policy Service, Inc.
