{"id":25004,"date":"2014-09-01T01:33:27","date_gmt":"2014-09-01T05:33:27","guid":{"rendered":"http:\/\/www.21cpw.com\/?p=25004"},"modified":"2014-09-01T01:58:47","modified_gmt":"2014-09-01T05:58:47","slug":"fmla-faq-can-an-employer-persuade-an-employee-to-work-instead-of-taking-fmla-leave-because-her-job-is-really-important-franczek-radelet-p-c-jdsupra","status":"publish","type":"post","link":"https:\/\/www.21cpw.com\/fmla-faq-can-an-employer-persuade-an-employee-to-work-instead-of-taking-fmla-leave-because-her-job-is-really-important-franczek-radelet-p-c-jdsupra\/","title":{"rendered":"Can Employer Persuade Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important?"},"content":{"rendered":"
<\/i><\/a><\/span>\n<\/i><\/a><\/span>\n<\/i><\/a><\/span><\/div><\/div><\/div>

\"FMLA_Leave_bonding_child_after_pregancy\"The Facts<\/strong><\/h3>\n

Evans was employed by Books-A-Million (BAM) as a payroll manager. Evans apparently became pregnant at an inopportune time \u2014 right at a time when BAM was implementing a new payroll system. As supervisors are prone to do, Evans\u2019 supervisor told her that BAM \u201creally needed\u201d 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.<\/p>\n

While Evans was bonding with her new child, she kept plugging away, but her supervisor became frustrated with Evans\u2019 lack of progress. When Evans returned to work, BAM reassigned her to a newly-created position \u2014 risk manager \u2014 in part because BAM was not pleased with her work on the payroll system implementation.<\/p>\n

Evans rejected the risk manager position (for which she had no experience and which required travel), and BAM terminated her employment.<\/p>\n

Then Evans found one of them employment attorneys. \u00a0What were the legal theories, you ask? \u00a0First, that BAM interfered with Evans\u2019 FMLA rights by making her work while on FMLA leave. \u00a0Second, 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.<\/p>\n

Insights for Employers<\/strong><\/h3>\n

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)<\/strong><\/a> \u00a0At trial, BAM has some explaining to do. \u00a0Before this thing even goes to trial, there are lessons to be learned:<\/p>\n

1. \u00a0Don\u2019t Make an Employee Perform Substantive Work while on FMLA Leave. Not ever. Never.<\/em><\/strong>\u00a0Does that mean you can\u2019t ask the occasional question or consult on an issue? \u00a0Of course not. \u00a0We discussed in an earlier post\u00a0where to draw the line<\/strong><\/a>. \u00a0Generally speaking, fielding occasional calls and e-mails that relate to your job while on leave is a \u201cprofessional courtesy\u201d that does not interfere with FMLA leave. \u00a0As one\u00a0federal court in New York<\/strong><\/a>\u00a0put it, when an employee is passing on \u201cinstitutional knowledge\u201d 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. \u00a0Keep in mind<\/strong><\/em>: the FMLA exists so that employees can take\u00a0job protected leave from work<\/em>. I recognize that, at times, an employee\u2019s 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.<\/p>\n

Note, too, that it didn\u2019t matter to the court that BAM paid Evans for the time they made her work while out on FMLA. \u00a0 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.<\/p>\n

2. \u00a0Don\u2019t Abandon Your Obligation to Return the Employee to the Same or Equivalent Position.<\/em><\/strong> \u00a0So long as she timely returned from FMLA leave, Evans was entitled to return to the same or equivalent position. \u00a0The FMLA regulations are unforgiving in defining an equivalent position. \u00a0As you may recall, an equivalent position is:<\/p>\n

“one that is virtually identical <\/em><\/span>to the employee\u2019s 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.”<\/strong><\/p><\/blockquote>\n

Here, BAM returned Evans to what appears to be a much different position. \u00a0Although 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<\/strong><\/a>. \u00a0There, the employer returned an employee to a quality control position after holding the position of project manager. \u00a0The 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.<\/p>\n

Another reminder<\/em>: be exceedingly careful when returning an employee to a different position upon their return from FMLA leave. \u00a0Think<\/em> virtually identical skills, effort responsibility and authority.<\/p>\n

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.<\/p>\n

Otherwise, you might get BAM\u2019d.<\/p>\n

via FMLA FAQ: Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important? | Franczek Radelet P.C. – JDSupra<\/a>.<\/p>\n

 <\/p>\n

<\/i><\/a><\/span>\n<\/i><\/a><\/span>\n<\/i><\/a><\/span><\/div><\/div><\/div>","protected":false},"excerpt":{"rendered":"

The Facts Evans was employed by Books-A-Million (BAM) as a payroll manager. Evans apparently became pregnant at an inopportune time \u2014 right at a time when BAM was implementing a new payroll system. As supervisors are prone to do, Evans\u2019 supervisor told her that BAM \u201creally needed\u201d her to continue to work on the new…<\/p>\n

<\/span> Continue reading<\/a><\/p>","protected":false},"author":225,"featured_media":24345,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[178],"tags":[3782,540,2951,3784,3783],"_links":{"self":[{"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/posts\/25004"}],"collection":[{"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/users\/225"}],"replies":[{"embeddable":true,"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/comments?post=25004"}],"version-history":[{"count":0,"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/posts\/25004\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/media\/24345"}],"wp:attachment":[{"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/media?parent=25004"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/categories?post=25004"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.21cpw.com\/wp-json\/wp\/v2\/tags?post=25004"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}