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Samuel II
Samuel II, Attorney at Law
Category: Employment Law
Satisfied Customers: 27009
Experience:  More than 20 years of experience practicing law.
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I had a baby in 2013 and was covered under FMLA. Prior

Customer Question

Hello. I had a baby in 2013 and was covered under FMLA. Prior to going out on leave I was promoted to a management position. Upon return I was briefly reinstated to my team for approximately 2 weeks. The company did some restructuring and my position was moved to a different location with a different team with completely different customers and a long commute. Someone else was put into my position as their previous position was eliminated.
So essentially, my employer reinstated me to the same position for only two weeks upon return from leave. Is this legal?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Samuel II replied 1 year ago.
HelloThis is Samuel and I will discuss this and provide you information in this regard.Unfortunately it is - as long as your new position is still at the same amount of pay or higher. It is unfortunate that it appears they used the guise of "reconstruction" to move you. But even so FMLA only requires they bring you back at the same job OR at another job with equal or better pay.
Customer: replied 1 year ago.

I found this information:


Reinstatement to the Employee’s Former or an Equivalent Position


An employee must be reinstated to his or her former position or to an equivalent position. The employee’s former position is simply the position the employee held before going out on leave. But what’s an equivalent position?

A position is equivalent only if it is virtually identical, in every important respect, to the employee’s former position. Courts will look at the following factors in determining whether a position is equivalent:



  • Pay. An employee is entitled to the same salary or hourly compensation, as well as any opportunities to earn extra money (through overtime or performance-based bonuses, for example), that were previously available. The employee is also entitled to any automatic raises that took place during the employee’s leave.

  • Benefits. The equivalent position must offer the same benefits, at the same levels, as the employee’s previous job.

  • Job duties. The job duties must be substantially similar to those of the former job. Minor alterations are allowed, but the new position must have the same prestige in the company as the employee’s former position. Employers get in trouble when the “equivalent” position starts to look more like a demotion.

  • Shift and schedule. Ordinarily, an employee is entitled to be returned to the same shift and to the same or an equivalent schedule.



  • Worksite. A job at a different worksite is not an equivalent position if it significantly increases the employee’s commute in time, distance, or both


Based on this wouldn't the worksite be in violation of fmla or does this not apply because I was back to work for a few weeks before they made the change? This obviously created quite a hardship for my family and 9 months later I was moved to a lesser position under the guise of "reconstruction" again.

Expert:  Samuel II replied 1 year ago.
HelloThank you. Yes, that is all correct. And they did bring you back from FMLA. There is no mandate how long they must allow you to stay there - and as I said they used "reconstruction" as a premise to move you - which they could have just as well terminated you with a "downsizing" explanation.I suggest that because they returned you to the original position they are FMLA compliant. Now, if you feel that you are being moved due to discrimination based on gender because you have a baby, you can file a complaint with the EEOC in that regard.
Expert:  Samuel II replied 1 year ago.
But it has nothing to do with FMLA at this juncture.
Expert:  Samuel II replied 1 year ago.
In other words, if you have been moved to a lesser paying position or you feel the only reason you were moved at all is because you now have a baby, that could be gender discrimination.