August 2013

By: James B. Sherman, Esq. & Phoebe A. Taurick, Esq.

A Minnesota federal court allowed a plaintiff to proceed with her claims that her employer interfered with her rights under the Family and Medical Leave Act (FMLA) when it modestly changed her job duties and working hours upon completion of her leave, even though the employee’s job title, salary, and benefits remained the same. While the plaintiff was on leave to treat a back problem, the plaintiff’s supervisor assumed a portion of her duties. The supervisor felt that performing these duties herself was helpful and more efficient, and decided that she would continue to do so upon the plaintiff’s return, and the plaintiff would instead perform other duties that she was qualified to perform, but the supervisor was not. Further, to better accommodate these changing responsibilities, the plaintiff’s work schedule shifted 90 minutes later.

The plaintiff sued, claiming that these changes in job duties and work time violated the FMLA. The FMLA requires that upon return from leave, an employee be reinstated “to the position of employment held by the employee when the leave commenced” or to “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” An employee’s job title does not determine whether the employee was reinstated to the same or equivalent position; rather, 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.” The employer’s intent is irrelevant to this type of claim; however, an employer can avoid liability if it can show that the changes would have been made regardless of the FMLA leave. The court held that the changes to the plaintiff’s duties, as well as to her hours, were substantial enough to allow her to proceed with her claim. Further, the fact that the supervisor decided to change the plaintiff’s responsibilities because the process was working more smoothly when the plaintiff was gone and the supervisor performed the duties, was evidence that the plaintiff’s duties would not have been changed if she had not gone on leave.

Employers should take away two important points from this case:

The requirement to reinstate an employee to the same or equivalent position upon return from FMLA leave is a stringent one; job title, salary, and benefits are not dispositive.

• No malice on the part of the employer is required here. Even though the employer merely made a business decision based on how well the plaintiff was performing certain duties compared to another employee, it may not be sufficient to avoid liability. The employer may not have known that the supervisor could perform the function more efficiently had the plaintiff not gone on FMLA leave, therefore the employer may not have made the decision regardless of the leave.