Thank you very much for your reply.
Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position. (29 CFR § 825.215)
The law is clear that merely because a position is at the same pay level as the returning employee's previous position does not in itself make the position "equivalent."
For example, in Foraker v. Apollo Group, Inc.
427 F.Supp.2d 936 (2006), the court held that where an employee returning from FMLA leave was offered a position at the same salary, benefits, and job classification as the employee held prior to taking FMLA leave, he was not returned to an "equivalent position" because the position offered did not also have the same level of responsibility, authority, status, and privileges
as the position the employee held prior to taking leave. You can read the Foraker case here: http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=20061363427FSupp2d936_11293.xml&docbase=CSLWAR2-1986-2006&SizeDisp=7
The courts closely scrutinize those cases in which an employee takes FMLA leave and then, upon their return, faces any sort of adverse employment action. The burden typically falls on the employer to demonstrate that whatever adverse action they have taken does not relate to the employee's FMLA leave.
Adverse action not
relating to the FMLA absence is entirely legal, but where the cited justification for the adverse action is vague, as you have indicated is the case, it will be hard for the employer to make a case that your demotion (and potential termination) are not retaliatory in nature.
Unless your employer has a solid, well-documented basis for why it is taking this employment action against you, an individual in your circumstance may very well have a claim for retaliation pursuant to 29 CFR § 825.215, as cited above.
For attorney referrals, visit this link: http://apps.americanbar.org/legalservices/lris/directory/main.cfm?id=CA
or visit http://www.martindale.com
I particularly like Martin Dale because the site allows you to search attorneys by practice area and also provides attorney ratings.
When you contact the attorneys, ask if they offer free consultations. Most should, and this way you can get at least some feel for the attorney's expertise and enthusiasm for your particular case before you commit. Also, you will probably want an attorney who is willing to take your case on a contingency fee basis
--this means that you won't have to pay for their services until you win, and if you don't win, you won't have to pay them any attorney fee.
Again, I am terribly sorry to hear about your health problems and the difficulties you are now facing at work. I sincerely XXXXX XXXXX this information helps you and I wish you the best.
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