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Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16288
Experience:  13 years experience in employment law, unions, contracts, workers comp law
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In March 2015 I returned to work after 5 months or so of

Customer Question

In March 2015 I returned to work after 5 months or so of FMLA. I had worked for this company for 27 years (28 in May 2015) and had always been a highly rated employee. I had achieved a range 15 which is the first level of executive management. It allowed me things like higher pay, larger bonuses, company paid annual physical (very extensive), and restricted stock.
My FMLA came about after a divorce I went through in April 2013. That is when it was final. I had been going through it since the fall of 2012. I was devastated by the divorce. She filed for divorce while I wanted to keep trying to make things work. I was, and still am, in love with my ex-wife. Anyway, as time went on I became more and more depressed and ended up in the hospital psych ward under suicide watch. It took me months to get the right medication to get me out of my "funk". I not only had severe depression but also had anxiety attacks that sometimes kept me from being able to even leave my house. Once we found the right medication that would work for me I quickly came back to myself and was ready to return to work.
Before returning, my boss contacted me and asked if we could meet for lunch outside of the office. To be honest I appreciated this because it was going to be somewhat awkward for me to return to work after such a long leave. Nobody knew what I had been through and I'm sure there were all kinds of rumors going around. What he told me during that lunch was very humbling. I was told that my position had been permanently replaced by someone else. I was then told that he tried finding me a similar level position in other departments but nothing materialized. He then proceeded to tell me that they had created a new position for me in the same department. The job sounded good and I was appreciative for the chance to prove myself again. Then he told me that the job was two grades lower than the one I had left. My base pay was not impacted but I would not receive any raises because my salary, having been at a grade 15 before, was already above the highest salary for a grade 13 (my new grade). Not only would I not get raises, my bonus would be significantly less, and I would not receive any restricted stock any more. I also would not be eligible for the annual company paid executive physical. Needless to say this cost me a lot of potential earnings. I was then told that I would not have an office, which I had had for the last 18 years. I would be out with everyone else in a small cube on the floor. As you can imagine, this was very humiliating after having been such a highly thought of employee in a management position. My new job was not management. I had nobody reporting to me.
At the time I did not know much about FMLA. I was just happy that the company allowed me to be off for the length of time I needed in order to get myself mentally together again. Recently I heard something and began reading more about FMLA. I believe I read that the company had an obligation to either give me my old job back or give me one of equal responsibility, pay, benefits, and earning potential. Obviously the job they put me in was not equal since it was two grades below where I was. I was stuck having to work my way back up to where I had already been. It would take years to accomplish just moving up two grades to get to where I had been. I recently decided to retire and much of that decision was caused by my disappointed and frustration with the thought of having to work back up the ladder when I should never have been "demoted" in the first place. After my return I again received a very high rating just like I had for all those years. I had proved to myself and to the company that I was still very capable and could was still a very valuable employee.
As I thought about it more I just didn't have it in me to work my way back up the ranks knowing that I had already done it once. I should have come back as a 15 and should be on my way to even higher positions. Because of my frustration with how things went down I decided to give up and retire and move on to a second career as a certified financial planner. It would have been much easier if I had just received a job of the same level when I returned from my FMLA so I could stay with this company and retire in a few more years.
Do I have a case against my company for not giving me a position of equal level when I returned from my FMLA?
Thanks for your opinions.
Submitted: 4 months ago.
Category: Employment Law
Expert:  Legalease replied 4 months ago.

Hello there --

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I am not sure what article you read regarding FMLA benefits, but if the author of that article simply stated that an employee is entitled to their old job back or a job with equal pay and benefits after ANY FMLA leave, then the author was mistaken. You see, the FMLA covers any and all employees (whether management, non management, union or non union) and offers this protection for a period of only 12 weeks in each one year period (the employer can select whether their FMLA is a calendar year benefit or they can make it a rolling year benefit (so when one period of FMLA ends, the employee must wait another year before asking for additional FMLA leave).

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So, where your employer caught you up is in the number of weeks they are required to wait under the federal FMLA laws for you to return to work. FMLA guarantees protection to you for your old job or the employer can choose to give you another job with the same pay and benefits for UP TO 12 WEEKS and that is all. If you do not return to work by the beginning of the 13th week after your FMLA leave started, then it is completely up to the employer whether to give you your old job back or whether to offer you another position within the company for any pay and benefits that the employer chooses to offer to you -- and the employer even has the right NOT to take you back to work at all (the employer can terminate your position).

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If you were out of work for 5 months of FMLA leave, then youur federally guaranteed FMLA leave ended at the 13th week that you continued to be out of work. This is applicable whether your doctors have determined that you can return to work or you cannot return to work. Depending upon the ability of an employee to work after the 12 week period is over, if the employer terminates the position and the doctor permits the employee to work at some point beyond the 12 weeks FMLA leave then the employee can collect unemployment benefits as a bridge to getting another job if the employer refuses to provide a position for the employee when the doctor DOES clear the employee to work at any point beyond the 12 weeks).

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Unfortunately, the bot***** *****ne here is that if you had returned to work by the beginning of the 13th week after you took the leave, your employer would have had to legally give you your old job back or a job with the same pay and benefits as your old job. Because you did not return in that time period, the ball is then in the employer's court whether to give you your old job back or to terminate you or to offer you a lower paying job in their company. ANd even if you had accumulated sick pay with the company, it does not matter -- it is up to the company whether to let you take your sick pay as part of the overall 12 weeks FMLA leave or to let you have the sick leave consecutive to the FMLA leave of 12 weeks (thereby expanding your overall leave by the number of weeks sick pay that you used during the leave) -- Most companies and state and federal agencies make the employee take the sick time as part of the overall 12 weeks of FMLA leave that you are entitled to receive (so the FMLA leave is not expanded beyond the 12 weeks).

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