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Ray
Ray, Employment lawyer
Category: Employment Law
Satisfied Customers: 37026
Experience:  30 years in Employment law
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FMLA: can an employer post you current position while

Customer Question

FMLA: can an employer post you current position for hire while you are still under FMLA?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ray replied 1 year ago.
Hi and welcome to JA. I am Ray and will be the expert helping you tonight.
Your employer may not terminate you if you are on FMLA leave as long as you don't go over 12 weeks of FMLA leave per year. When you return from FMLA leave, your employer must employ you in your former position or one that is substantially similar.
So it is legal for them to post it here under the FMLA, they can hire someone for your current job but they cannot terminate you if you report to work.They can offer you a substantially similar job here not necessarily your current position.
Reference..
http://www.nolo.com/legal-encyclopedia/can-you-be-fired-from-job-while-leave-with-disability.html
Substantially similar means the following:
Here an equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.
If an employee is no longer qualified for the position because he or she is unable to attend a necessary course, renew a license, fly a minimum number of hours, etc. as a result of the leave, the employee should be given a reasonable opportunity to fulfill those requirements upon return to work.
Equivalent pay includes a bonus or other payment made to employees.
Reference.
http://webapps.dol.gov/elaws/whd/fmla/8e2.aspx
In your case it is possible they post and hire for your job but they have to offer you an equivalent substantially similar job with pay , working conditions, etc.
They haven't violated the law yet but if they don't offer you a substantially similar job when you return they are in violation here.
Here is the DOL website just in case..
http://www.dol.gov/wecanhelp/howtofilecomplaint.htm
More about filing if they do cross the line.
http://www.nolo.com/legal-encyclopedia/do-you-have-fmla-claim-against-your-employer.html
I appreciate the chance to help you.I hope you are able to return to work here with your employer.Please if you have more follow up just ask it is never a problem.

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