FMLA FAQ: Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important?

by Franczek Radelet P.C.
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Maggie (8-27-14)Sorry I have been away for a bit. Of all things, I’ve been taking some FMLA bonding leave to care for this beauty to the right! I am excited to report that our daughter, Maggie, joined our family just a few weeks back. And I’ve been smitten ever since.

There are a few things that rouse me from my FMLA slumber — like when I need to warn my employer friends about a foolish mistake an employer made administering the FMLA. So, when I heard the story of Tondalaya Evans, I quickly threw down the burp cloth and charged over to my laptop to share this little tale with you.

The Facts

Evans was employed by Books-A-Million (BAM) as a payroll manager. Evans apparently became pregnant at an inopportune time — right at a time when BAM was implementing a new payroll system.  As supervisors are prone to do, Evans’ supervisor told her that BAM “really needed” her to continue to work on the new system, so much so that Evans felt she had no choice but to continue to work from home after the birth of her child.

While Evans was bonding with her new child, she kept plugging away, but her supervisor became frustrated with Evans’ lack of progress. When Evans returned to work, BAM reassigned her to a newly-created position — risk manager — in part because BAM was not pleased with her work on the payroll system implementation.

Evans rejected the risk manager position (for which she had no experience and which required travel), and BAM terminated her employment.

Then Evans found one of them employment attorneys.  What were the legal theories, you ask?  First, that BAM interfered with Evans’ FMLA rights by making her work while on FMLA leave.  Second, that BAM violated the FMLA when it reassigned her to the risk manager position based on her performance during a period of time when she should have been on unfettered FMLA leave.

Insights for Employers

After a whole lot litigation, an appellate court ruled earlier this month that Evans would be allowed to try her FMLA claims. Evans v. Books-A-Million (pdf)  At trial, BAM has some explaining to do.  Before this thing even goes to trial, there are lessons to be learned:

1.  Don’t Make an Employee Perform Substantive Work while on FMLA Leave. Not ever. Never. Does that mean you can’t ask the occasional question or consult on an issue?  Of course not.  We discussed in an earlier post where to draw the line.  Generally speaking, fielding occasional calls and e-mails that relate to your job while on leave is a “professional courtesy” that does not interfere with FMLA leave.  As one federal court in New York put it, when an employee is passing on “institutional knowledge” or providing closure on open assignments, employers do not violate the FMLA. But employers have to resist the urge to pile on work while an employee is taking FMLA leave.  Keep in mind: the FMLA exists so that employees can take job protected leave from work. I recognize that, at times, an employee’s need for FMLA leave is difficult, even incompatible, with the pressure of business and client needs, but it must be compatible, and its use should be supported by the entire organization.

Note, too, that it didn’t matter to the court that BAM paid Evans for the time they made her work while out on FMLA.   There still is the potential for FMLA interference when an employer does not allow the employee to take FMLA leave when it qualifies as such.

2.  Don’t Abandon Your Obligation to Return the Employee to the Same or Equivalent Position.  So long as she timely returned from FMLA leave, Evans was entitled to return to the same or equivalent position.  The FMLA regulations are unforgiving in defining an equivalent position.  As you may recall, an equivalent position is:

one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. (My emphasis)

Here, BAM returned Evans to what appears to be a much different position.  Although the role was managerial in nature, it required different skills and included travel (which was not required of Evans before she took FMLA leave). In this sense, the case is similar in many respects to the JP Morgan case we discussed in a previous post.  There, the employer returned an employee to a quality control position after holding the position of project manager.  The new position required different skills, a new reporting relationship and fewer opportunities for advancement, all of which the court found difficult to justify under the FMLA regs.

Another reminder: be exceedingly careful when returning an employee to a different position upon their return from FMLA leave.  Think virtually identical skills, effort responsibility and authority.

The task is not easy, and at the risk of sounding fake, phony and a bunch of other things, I gently remind you that these are decisions that should be made with the assistance of your employment counsel.

Otherwise, you might get BAM’d.

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Franczek Radelet P.C.
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