Employees’ Right to Reinstatement Under FMLA

November 13, 2007

Summary
One of four articles in the Winter 2007 edition of the Employment Law Briefing newsletter, this article focuses on a case in the Fourth Circuit in Csicsmann v. Sallada (an unpublished decision), which considered whether an employer retaliated against an employee who had taken leave under the Family and Medical Leave Act by eliminating his position while he was on leave, restoring him to a different position when he returned and later eliminating that position as well. Other articles in this issue are: 2. Sexual Harassment Not Limited to Male Against Female, 3. Has the Social Security dministration’s “No Match” Letter Met its Match? and, 4. Be Wary When Using Tests to Screen Job Applicants.

The Fourth Circuit in Csicsmann v. Sallada (an unpublished decision) considered whether an employer retaliated against an employee who had taken leave under the Family and Medical Leave Act by eliminating his position while he was on leave, restoring him to a different position when he returned and later eliminating that position as well.

Case arises
While a manager in a company's information technology (IT) department was on FMLA leave for hip surgery, the company eliminated his position. On his return, he was assigned to different IT duties with the same salary, title, bonus eligibility, and retirement and health care benefits as before.

After a merger the following month, the company eliminated his new position and discharged him. He alleged that, because he had taken FMLA leave, the employer retaliated and discriminated against him by failing to restore him to an equivalent position.

The trial court rejected all his claims without a trial, ruling that the facts were undisputed and the employer was entitled to judgment as a matter of law.

Intangible vs. measurable differences
On appeal, the Fourth Circuit first noted that the FMLA allows two options when employees return from qualifying leave: Give them back their previous positions or give them "equivalent" positions with "equivalent employment benefits, pay, and other" employment terms. Under the Fourth Circuit's decision in Yashenko v. Harrah's NC Casino Co., 446 F.3d 541 (4th Cir. 2006), employees returning from FMLA leave aren't absolutely entitled to be restored to their previous positions.

Here, no one disputed that the manager's salary, title, bonus eligibility, health care and retirement benefits remained the same. And he continued to work the same schedule in the same physical office. So the court held that both positions' concrete and measurable aspects were exactly the same.

But the manager argued that his new position wasn't equivalent to the one eliminated while he was on leave because it was less prestigious and less visible. The Fourth Circuit rejected this argument, noting that an equivalency determination excludes a position's intangible aspects. Federal rules clarify that the requirement of equivalent employment terms "does not extend to de minimis or intangible, unmeasurable" job aspects. The court held that his positions' concrete and measurable aspects were exactly the same.

Finally, the manager argued that the new position was ultimately slated for layoff while his previous position wasn't. The court rejected this argument because the company had eliminated his previous position before he returned from leave, and eventually closed the entire department after the merger. He presented no evidence that his previous position would have survived.

So the Fourth Circuit concluded that the trial court had appropriately dismissed the manager's claims.

Jobs can legitimately be eliminated
This case demonstrates that the FMLA doesn't provide employees who take leave under it with an absolute right to return to their exact same positions. The act permits reinstatements to equivalent positions. Moreover, an employer may make legitimate business decisions that can result in eliminating an employee's job altogether.

Caveats for Employers
Employers who do business in the Tenth Circuit (Colorado, Utah, Wyoming, Oklahoma, New Mexico and Kansas) need to keep in mind that it is the employer's burden to show that the worker would have been laid off during the FMLA leave period and therefore would not have been entitled to restoration. The Tenth Circuit Court of Appeals has held in Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th Cir. 2002), that employees have no greater right to reinstatement or to other benefits or conditions of employment than if the employees had been continuously employed during the FMLA leave period (quoting 29 C.F.R. § 825.216). It is up to the employer to show, however, that an employee would not have been employed at the time reinstatement is requested in order to deny restoration.