FMLA

6416783

I have a Floor Manager who is about to go out on FMLA and while she is gone we are changing all of our Floor Managers to Team Coordinators and hiring a general manager for the floor managers to report to.This change will also move them from an exempt status to a non-exempt status. We will leave her pay the same but her position will change. My questions are:

1. Should we try to make the change before she goes out for all the floor managers?

2. If I can't make the change before she goes on FMLA, how long do I have to leave her in the same capacity before changing her?

Thank you in advance for your input!

HRforME

"An employee's FMLA right to be returned to the same or an equivalent position is not absolute. The FMLA recognizes that an employee has no greater right to reinstatement or to other benefits and conditions of employment then if the employee had been continuously employed during the FMLA leave period. 29 USC 2614(a)(3). If an employer can demonstrate that it would have taken the same action had the employee not taken FMLA leave, the burden shifts to the employee to overcome that assertion. To defeat summary judgment, the employee must proffer sufficient evidence to raise a genuine issue of material fact that the employer would not have taken the challenged action had the employee not taken FMLA leave. As in Barton, an employee who fails to counter the employer's legitimate, nondiscriminatory justification for any delay or post-return change in job duties will find him or herself on the losing end of a summary judgment motion. " from the FMLA blog at federalfmla.typepad.com

 And here is where he is sourcing the "no greater right to reinstatement".....

CFR825.216 states:

"(a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example:

(1) If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. Restoration to a job slated for lay-off when the employee's original position is not would not meet the requirements of an equivalent position.

(2) If a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours upon restoration. However, if a position on, for example, a night shift has been filled by another employee, the employee is entitled to return to the same shift on which employed before taking FMLA leave.

(3) If an employee was hired for a specific term or only to perform work on a discrete project, the employer has no obligation to restore the employee if the employment term or project is over and the employer would not otherwise have continued to employ the employee. On the other hand, if an employee was hired to perform work on a contract, and after that contract period the contract was awarded to another contractor, the successor contractor may be required to restore the employee if it is a successor employer. See § 825.107.

6416783

Thank you for your help!