FMLA & transferring

gab · December 2003

We have an employee who will be going out on FMLA, but we are thinking about when she returns is to move her to a different location- of course doing the same duties with the same pay. The problem is the other location is technically a differnt company, however, it is owned by the same person and has the same HR, CFO, COO for both and we treat it as a sister company with same benefits. It is about 36 miles away. Does anyone see a problem with transferring her to the other location?

San Francisco · December 2003

We always return the employee to the same location. 36 miles is a substantial distance in our area and I would think there could be potential problems if she doesn't want to be transferred. We interpret FMLA to include same location as well as same pay etc. Everything should be as though the employee had not been out on FMLA. What is the reason for wanting to transfer this person and how long will they be out on FMLA?

Elizabeth

Betty I_O · December 2003

We also return employees to the same job in the same location. You say you are returning her to the same position with the same pay, etc. You did not indicate why it will be necessary to transfer this employee. (Will her position no longer exist in your current location when she is ready to come back?) But . . . if this proceeds the way you describe, she will not be in the exact job she had when she started her FMLA. You are changing the conditions of her employment by moving her 36 miles away and to a company that (in your words) is "technically a different company." Unless there a compelling business necessity for such a move--one that will be able to be backed up, should it come to that--restore this employee to the location she was working in before her FMLA started.

marc · December 2003

If you cannot put them back in the exact job, it must be equivalent. That has a deeper meaning than just the paycheck. A longer commute would not be equivalent, a different company may not be equivalent either - there could be less chance of advancement, bonuses, different working conditions, a lot of things that may not be equivalent.

If the EE is not happy with the changes, then she can challenge the equivalency aspect. It wouldn't hurt to talk to her and see how she would view it, but be realistic about how equivalent it is ahead of time. Who knows, it may suit her better.

gab · December 2003

Thanks for the input. It is a somewhat long story, but to sum it up. This ee is pregnant & we have been having problems with her before the pregnancy. She has a major attitude problem & treats many people even her boss with disrespect. It has been addressed & documented. And we believe that she also has a quantity problem, but since she is the only one in the position we do not have anything to compare to. We are bringing in someone from the other location while she is out. We have a feeling that this other person will do much better in the job and we thought may be that we could switch them & send her to the other location which has another person to help her out. I guess we will just have to have her come back to the original location and continue to document & give her ample opportunity to correct herself and then if all else fails then we will terminate.

System · December 2003

gab,

You say she has a major attitude problem and treats people, including her boss, with disrespect and it has been addressed and documented. Even so, it's dreadful timing to transfer her upon return from leave. This appears to be the company's easy-out to get peace in the office. You can't address behavior or performance problems under the guise of something else. If you believe the transfer would correct the problem, it should have taken place before she applied for leave.

Let us know how you handle this and what the outcome is.

Don D · December 2003

What you have given us is a really good example of how 'not' to deal with a disciplinary issue. What further complicates this type of 'solution' is that it violates the law. Another concern I have is why would you want to simply shift this type of problem over to another corner of the organization rather than face it head on in the first place?

gab · December 2003

We want to deal with the situation head on which is what we are doing, but the problem goes deeper with attendance issues, etc... Which now being pregnant we have to be careful with her attendance problems may be related. Part of the reason we wanted to transfer is we believe the person that will be taking care of her duties while on leave will excel in her place. If believed so, we wanted to switch her to the other location where there is another individual to help her out in her lack of quantity issue. But I wasn't sure if it was legal to do that and therefore that is why I posed it on the forum. And now we won't be transferring her and we will deal with her behavior problems. We will just have to take it slow.

FMLA & transferring

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