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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11051
Experience:  Significant experience in all areas of employment law.
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I have worked for Sam's Club in California for just over 3

Customer Question

I have worked for Sam's Club in California for just over 3 yrs. I have been an Associate of the Month with no right ups. After returning from a 30 day approved FMLA i was demoted with $1.30 an hr taken away. When i was promoted to this position 2 yrs ago, i was given a .90 cent increase. Is this legal? Thank you Angie
Submitted: 1 month ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 month ago.

Hello and welcome. My name is ***** ***** it will be my pleasure to assist you. Please just give me a moment to review your question....

Expert:  Patrick, Esq. replied 1 month ago.

What reason was given to you for the demotion? Do you believe that the true reason was your FMLA absence? I very much look forward to helping you on this matter.

Customer: replied 1 month ago.
I was told it was due to non performance within the past prior 90 days. However that doesn't make since because we won a Market Challenge & I had my yearly review done in May with no Coachings. My biggest concern is how they took away $1.30 an hr when it was a .90 cent increase when i got the promotion 2 yrs ago. They gave my position to the person who covered it while on my LOA. It was a surprise.
Expert:  Patrick, Esq. replied 1 month ago.

Thank you. ***** entitles employees who take protected leave under the Act to be returned to the same or a substantially equivalent position. An employer can only lawfully demote an employee who is returning from FMLA if they can prove that the demotion would have happened regardless of the employee's absence of work. The absence of work cannot itself form a basis for the demotion, nor can any performance or productivity issues which stem from the absence.

When an employee is demoted after returning back from FMLA leave, there is a PRESUMPTION that the demotion is unlawful. The employer then has to prove that they had a legitimate and unrelated business reason for the demotion in order to avoid legal consequences.

What you are describing is highly suggestive of an FMLA violation. Typically, it should first be brought to the attention of HR that you are entitled to be reinstated in your previous position upon returning from FMLA along with a demand that you be reinstated. If this does not trigger a response, the next step would be to retain a local attorney and sue for violation of your rights under the FMLA. As an alternative to a lawsuit, you can file a complaint with the Department of Labor, which can investigate the violation and potentially pursue it on your behalf, though this is often a slower and less effective remedy.

I hope this addresses your concerns. If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

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