Do you know what’s particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!]
The requirement that an employer return an employee to the same or equivalent position at the end of FMLA leave.
Returning an employee to the same position is easy enough to grasp. The same is the same is the same. But often, the same isn’t available, so the employer is left wondering what exactly is an equivalent position? Here’s where the FMLA gets oppressive. Under the FMLA regulations, an equivalent position is:
one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
Several words here scare me: virtually identical, same, must involve, must entail. Does this effectively mean that the equivalent position must be identical or the same? Just about.
JP Morgan Chase recently learned this the hard way.
Paula Crawford worked for JP Morgan Chase as a project manager. In this role, she was required to review government regulations and contract servicing agreements. The position also allowed her to apply legal knowledge she acquired during her studies in law school.
From December 2007 to February 2008, Crawford took leave for depression and anxiety. Upon her return, her employment looked something like this:
- She was placed into a new position: Quality Analyst II, which maintained the same pay, benefits, work hours and location
- She performed more clerical duties
- She reported to a former peer
- The new position did not require the same use of legal expertise
- Her opportunities for career advancement were diminished in the new role
The Bank’s attorneys argued that Crawford’s new position was an equivalent position because it involved the same salary and benefits. But herein lies the problem: all too many employers presume that if they provide the employee the same pay and benefits and return him/her to a position that’s “same enough,” they’ve met their obligations under the FMLA.
Not so fast.
Remember those oppressive words above: the new position must be “virtually identical” to the former position, and it must maintain the same privileges, perquisites (“perks”) and status. The FMLA regulations also tell us that effectively the same skill, effort, responsibility, and authority must be employed, too. [Read: employers have very little wiggle room.]
The Ruling and Insights for Employers
The court refused to dismiss Crawford’s case above, finding that the new position: 1) did not offer the same career advancement; 2) did not require a similar level of education and training; 3) increased her clerical duties; and 4) did not allow her to utilize her legal skills. As a result, it found that a jury would have to decide that the new position was not equivalent under the FMLA. Crawford v. JP Morgan Chase (pdf)
What do employers learn from this?
- If pressed in a lawsuit, employers must do a better job explaining why the position is virtually identical. Assuming the facts are true, the bank didn’t do that here, and even worse, it allowed the employee through her own testimony to offer her own spin on the duties of the new position, all of which were not contested by the bank. If the quality analyst position was indeed the same or virtually identical, then show it!
- *Virtually identical* means just that — that is, the new position must be pretty darn close to the last one. It should not take on more clerical duties or offer a more trecherous route for advancement through the company.
- Read carefully part of the court’s opinion: “Even if both [of Crawford’s] positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.” Seems a bit harsh, as it doesn’t take into account the diversity of positions potentially available in a typical company, but this is what the courts are saying, so we have to take it seriously.
- Finally, be mindful of the status of the new position, yet another requirement under the regulations. For example, when you offer a more difficult road for advancement within the company, you arguably change the status of the position, making it difficult to knock out an FMLA claim.