Court: FMLA Did Not Require Employer to Restore Worker to Position Eliminated During Leave

A financial services company was not obligated to give a worker returning from Family and Medical Leave Act leave any “right, benefit or position” other than what he would have received had he not taken leave, the 2nd U.S. Circuit Court of Appeals ruled (Barger v. First Data Corporation, No. 19-cv-3538 (2nd Cir., July 6, 2021)).

A worker argued his organization violated the FMLA when it failed to restore him to his position, which had been eliminated in a companywide reduction of force.

A district court disagreed, and so did the appeals court. The plaintiff’s stance “that he had an absolute right to be restored upon delivery of his physician’s release, regardless of whether his position would have been terminated had he not taken leave, is without merit,” the court opined.

When a worker returns from FMLA leave, they’re entitled to the same job — or one that’s equivalent. But the worker isn’t guaranteed the exact job they held before going on leave, an FMLA fact sheet from the U.S. Department of Labor specifies. Instead, they’re due a job that’s “virtually identical” to the one they worked before. Pay, benefits and other factors such as shift and location must line up.

The FMLA does not shield workers from events that would have affected them had they not been on leave, however. A shift may have been eliminated. Overtime may have decreased. Those kinds of changes apply to workers who were on leave when they went into effect. And “if an employee is laid off during the period of FMLA leave,” the DOL says, “the employer must be able to show that the employee would not have been employed at the time of reinstatement.”

In Barger, the 2nd Circuit noted that the worker’s position was eliminated in a reduction in force that focused on the top 10% of the organization’s 3,000 most highly compensated employees. The plaintiff made more than $700,000 annually, and executives had raised concerns about his compensation the year before he took FMLA leave.

“A reasonable jury could have found that First Data demonstrated that its [reduction in force] plans were the reason for its decision to eliminate his position and that [the worker’s] FMLA leave was not a factor,” the court concluded.