Employer Loses Bid to Kill FMLA Case Before Trial

The U.S. District Court for the District of Rhode Island recently allowed a worker’s case under the Family Medical Leave Act to go to trial.  In Barlow v. Dan’s Payroll Service, Inc.(click title to see full case), Neil Barlow went out on a one-week FMLA leave.  When he returned, he was moved to a new position– a demotion he claimed.  The FMLA requires restoration of the same job or its equivalent.  In this case, Mr. Barlow claimed that the demotion was due to his FMLA leave.  The employer claimed that it had made the decision to move Mr. Barlow to the new position before he announced his FMLA leave.  The Court said that the employer could not stop the case short of trial because the employer did not document its decision to move Mr. Barlow to the new position prior to his taking FMLA leave.  This left a “he said she said” situation which would have to be resolved by a jury.  Second, the court said that a jury would also have to decide the truth of the defendant’s claim that Mr. Barlow’s new job was equivalent to his old job. “The test for equivalence is strict.” the Court wrote.  “In addition to pay and benefits, the position must be “substantially similar” in terms of “duties, conditions, responsibilities, privileges and status as the employee’s original position.”  29 C.F.R. § 825.215(e).What This Means to You:

Employers should be cautious when moving an employee who has requested or who is out on FMLA leave.  All factors underlying a decision to change an employee’s position should always be documented in writing, especially after an employee has made a request for FMLA leave.  If an employer cannot restore an employee to the same job after valid FMLA leave, the employer must be careful to restore the employee to an equivalent job. 

Employees should be aware of their right to restoration of the same job or an equivalent job after taking valid FMLA leave.  Contact Muller Law or another employment lawyer for more information on how this case applies to your particular situation.  Click Here to see Judge Smith’s adoption of the Magistrate’s Report and Recommendation.