Maxwell C Livingston
FMLA Issues: Restoration/Rehire Clause
Many times, employees are concerned to take FMLA leave for fear of losing their jobs. However, it is illegal for an employer to fail to rehire/restore the employee to the same or substantially equal position after he or she elects to take FMLA leave. An employee who has suffered through an employer's failure to rehire/restore him or her should contact employment counsel for help.
Under 29 USC § 2614(1)(A)-(B), an employee is entitled to be “restored by the employer to the position of employment held by the employee when leave commenced” OR “an equivalent position with equivalent employment benefits, pay, AND other terms and conditions of employment.” A violation of failure to reinstate after FMLA leave entitles the employee to backpay, frontpay, liquidated damages, attorneys fees and other damages that would put him in the same financial position as if he had been reinstated to the same or an equivalent position. See Franzen v. Ellis Corp., 543 F.3d 420, 426 (7th Cir. 2008); see also Avita et al. v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1231 (7th Cir. 1995) ("[W]hen reinstatement is infeasible [in a case brought under the Fair Labor Standards Act ("FLSA")], the plaintiff is free to seek in lieu of that remedy an award of 'front pay,' designed to put him in the identical financial position that he would have occupied had he been reinstated."). Offering to hire back the employee to an inferior position is a violation of the obligation to be “restored. See Breneisen v. Motorola, Inc., 2009 U.S. Dist. LEXIS 52360, *19, 158 Lab. Cas. (CCH) P35,596.
What this means is that, if an employee takes FMLA leave, he or she is entitled to be put back in to either the exact same position or a position that is equal. A violation of this requirement entitles the employee to recover for damages suffered.