When An Employee Returns From FMLA Leave, What Does Same Or Equivalent Position Actually Mean?

by Franczek Radelet P.C.

back to work.jpgDo you know what's particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!]

The requirement that an employer return an employee to the same or equivalent position at the end of FMLA leave.  

Returning an employee to the same position is easy enough to grasp. The same is the same is the same.  But often, the same isn't available, so the employer is left wondering what exactly is an equivalent position?  Here's where the FMLA gets oppressive.  Under the FMLA regulations, 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.

Several words here scare me: virtually identical, same, must involve, must entail.  Does this effectively mean that the equivalent position must be identical or the same?  Just about.

JP Morgan Chase recently learned this the hard way.  

The Facts

Paula Crawford worked for JP Morgan Chase as a project manager.  In this role, she was required to review government regulations and contract servicing agreements.  The position also allowed her to apply legal knowledge she acquired during her studies in law school. 

From December 2007 to February 2008, Crawford took leave for depression and anxiety.  Upon her return, her employment looked something like this:

  • She was placed into a new position: Quality Analyst II, which maintained the same pay, benefits, work hours and location
  • She performed more clerical duties
  • She reported to a former peer
  • The new position did not require the same use of legal expertise
  • Her opportunities for career advancement were diminished in the new role

The Bank's attorneys argued that Crawford's new position was an equivalent position because it involved the same salary and benefits.  But herein lies the problem: all too many employers presume that if they provide the employee the same pay and benefits and return him/her to a position that's "same enough," they've met their obligations under the FMLA.

Not so fast. 

Remember those oppressive words above: the new position must be "virtually identical" to the former position, and it must maintain the same privileges, perquisites ("perks") and status.  The FMLA regulations also tell us that effectively the same skill, effort, responsibility, and authority must be employed, too.  [Read: employers have very little wiggle room.]

The Ruling and Insights for Employers

The court refused to dismiss Crawford's case above, finding that the new position: 1) did not offer the same career advancement; 2) did not require a similar level of education and training; 3) increased her clerical duties; and 4) did not allow her to utilize her legal skills.  As a result, it found that a jury could decide that the new position was not equivalent under the FMLA.  Crawford v. JP Morgan Chase (pdf)  

What do employers learn from this?

  1. If pressed in a lawsuit, employers must do a better job explaining why the position is virtually identical. The bank didn't do that here, and even worse, it allowed the employee through her own testimony to offer her own spin on the duties of the new position, all of which were not contested by the bank.  If the quality analyst position was indeed the same or virtually identical, then show it!
  2. *Virtually identical* means just that -- that is, the new position must be pretty darn close to the last one.  It should not take on more clerical duties or offer a more trecherous route for advancement through the company.
  3. Read carefully part of the court's opinion: “Even if both [of Crawford's] positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.”  Seems a bit harsh, as it doesn't take into account the diversity of positions potentially available in a typical company, but this is what the courts are saying, so we have to take it seriously.
  4. Finally, be mindful of the status of the new position, yet another requirement under the regulations. For example, when you offer a more difficult road for advancement within the company, you arguably change the status of the position, making it difficult to knock out an FMLA claim.   

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.