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Employment Law/Short Term Disability Ending

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Question
Frank

My Question is related to Short Term Disability and the Employer providing a job after being cleared  by a doctor to return to work.

3 months ago I filed for Short term Disability as I was going out for knee surgery and recovery. All the paperwork was done correctly and filed on time. I have been out of work for 3 months and 2 weeks as my Short Term Leave ended on the 25th of December and the doctor could not see me untill this week.

To my knowledge, if an employee has disability leave and fmla papers are filed; a job needs to be provided at the time of return and the pay does not change / lower. This is where my question lies.

I have had a meeting with the owner of the dealership I work at and he has told me that in the time that Ive been gone the position I worked in, as a manager, does no longer exist. So he has proposed I become a sales agent until he can figure things out. This actually cuts my pay by 50%.

Please advice on how I need to go about this situation and what I can do about it, or who do I contact? He has asked me to return on monday to sign the new payment plan and start in my new job.

Answer
Bob:

I can't really tell if you have a claim against your employer at this point, although it's certainly possible.  My advice is to contact your closest U.S. Department of Labor office, but first I'll give you an explanation of how I see your case.

My assumption from the way you've asked your question is that your employer has a disability leave program, but the program does not itself say anything about what job a disabled employee is entitled to upon return from a disability leave.  That means, as you have correctly determined, that your reinstatement rights should be governed by the provisions of the FMLA.  I also asume that your request for FMLA leave was granted by the employer or the employer's FMLA administrator.

The general rule on reinstatement is stated in the FMLA regulations at 29 CFR 825.214:

"Employee right to reinstatement.

General rule. On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. ..."

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Additional regulatory provisions explain the meaning of "equivalent position", and clearly the sales agent job you've been offered does not meet the definition.  

However, there are some exceptions one of which may be applicable to your case, as set forth in 29 CFR 825.216:

"Limitations on an employee's right to reinstatement.

(a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. ..."

This section has been applied by the courts to mean that if an employer reorganizes, reduces force, or otherwise eliminates the job held by a person on FMLA leave, there is no longer any obligation to reinstate the person to an "equivalent job", or any job at all, absent a contrary provision in an employment contract or collective bargaining agreement.

The key is that the employer must prove that your job would have been eliminated even if you had not been on FMLA leave.  This is where the DOL comes in, as they have the power to investigate your case under the law.  Therefore, I recommend you contact the DOL and speak with an investigator who can follow up with the employer. The link below takes you to the web site of the Wage and Hour Division of the DOL, where you can look up the nearest WHD field office to contact for assistance.

In the meantime, you would not waive any claim you may have by accepting the alternative job the employer has proposed, so I would advise you to do that.  Then, at least you will be working while the DOL investigates.  It is unlawful for an employer to retaliate against you in any way for contacting the DOL to investigate a potential FMLA violation.

I hope you find this helpful, and you're able to satisfactorily resolve your situation.  

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Frank C. Magill

Expertise

I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.

Experience

30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Organizations
Texas, Illinois and Missouri state bars

Education/Credentials
J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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