An Rhode Island employee returns to work after 10 weeks of FMLA (Family and Medical Leave Act) leave to find that her supervisor has hired someone else, and can only give her half her normal hours. The Human Resources department says by law the employer must give the employee the same job she had before taking leave. Which answer is right?

According to FMLA, an employee must return to either the same job, or to a position with comparable pay, working conditions and benefits. In this situation, the HR department is right on the money. The employer has no right to reduce the worker’s hours just because she was on FMLA leave.

If a lay-off occurred while she was on leave, then the company could reduce her job duties, or lay off the worker. Employees on FMLA leave are not exempt from lay-offs or downsizing measures.

FMLA leave provides up to 12 weeks of unpaid, job-protected leave for employees to care of a serious health condition, or to have a new baby. The employer must give the worker the same or comparable job when he or she returns to work. This law is enforced by the Wage and Hour Division of the U. S. Department of Labor.

In this situation, the employer probably hired a replacement for the worker on leave, and is now stuck with two employees for one job. Under the law, though, the job rightfully belongs to the woman on leave. The replacement should have been hired only as a temporary basis, or instructed that her duties would change when the worker returned from FMLA leave.

Employers have several options for filling the slot of someone on FMLA leave. A temp worker is a possibility. An employer can also hire a new permanent employee, and then move them to another position when the other worker returns from FMLA leave. If the company has several people in the same position as the worker on leave, it can divide the projects among the remaining workers during the time the worker is on FMLA leave.

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This entry was posted on Tuesday, November 25th, 2008 at 6:28 am and is filed under Labor & Employment Laws, State Disability Laws. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.