Return from Maternity

hrquestions

I've recently been asked to respond to the following scenario and need some advice...

An EE went out on maternity leave and returned 8 weeks later only to find that her supervisory position was no longer available. The organization agreed to let the EE work in a "float" capacity until another position became available, paying her what she was making prior to going on maternity leave. A couple of weeks went by and an opening came up within the organization that she was told to apply for. When she went to the interview she was told that since it wasn't a supervisory position, she would have to take $1.00/hr pay cut. Would she still be entitled to her same rate of pay or would she have to take the pay cut if she took the new position?

marc

Hi Kathryn,

Welcome to the forum.

Your question addresses one of the three basic guarantees of the FMLA.

When you return from leave, you must be reinstated to the same position, or one equivalent to it in all respects.

Your company is not meeting this requirement. Neither the job nor the pay is equivalent in the scenario you described.

You did not mention why the positon was no longer available? Was it filled by someone else or was it eliminated? In the latter case, some other issues come to bear. In the former, you have some issues to address.

mushroomHR

Does this employee qualify for FML? You did not state that.

hrquestions

Yes, I'm sorry that I didn't elaborate...the EE is eligible for FML. I know that the EE must be reinstated in the same or equivalent position, but my question is that if she applied for the other position within the org. (because there was no other position opening), would she have to take a pay decrease just because the position paid less than her supervisory position. I personally think she should fight this. And for the record, this is not my company!

marc

She should not have to apply for anything.

The act requires return to the job or one that is equivalent in all respects. The company is just not doing that. You still have not answered why there was no other position open. What happened to the job she had when she went on the leave?

Don D

Since this is not your company, you may not know the answer; but, she also may, under the law, be denied restoration if she meets the definition of 'certain highly compensated employees' in the organization. Basically that would mean she is salaried and among the highest paid 10 percent of the employees within 75 miles of this facility. You mention she is/was a supervisor. Maybe that part of the law has been applied to her situation. This can be found at: 29 USC 2601 sec. 104 (b) (1). Even if this was the case, the company still has to meet certain timelines for advising her of this application of the law. They couldn't simply wait for her to walk back in and then tell her, "Oh, by the way......"

Rockie

Yes, the company would have had to advise her of being one of the "key" employees BEFORE she went on leave.

This company is in direct violation of the FMLA provisions of restoring the employee to the same or equivalent position upon her return.

Whoever made this decision needs to find an equivalent position for this lady or face personal liability as well as company liability.