Benefits & Compensation News

FMLA: How to avoid law’s ‘equivalent position’ booby trap

A recent FMLA court case illustrates how easy it is to get caught up in the law’s “equivalent position” booby trap — and provides insights into how to avoid being sued.

The case

Computer teacher Sally Wanamaker worked for the Westport Board of Education in Connecticut. While on maternity leave, she gave birth but sustained a debilitating spinal cord injury during labor. Not only that, her baby was born with a heart defect. Both medical conditions required Wanamaker to take FMLA leave for an extended period of time.

At first, Wanamaker’s principal said he would hire a long-term sub.  But a few weeks into her leave, he came back and told her he was replacing her permanently at the direction of the superintendent.

Wanamaker was given the option of returning to work as a substitute classroom teacher, a move she considered a demotion. She declined but then found herself without a job when the district terminated her employment.

Wanamaker hired a lawyer to help her get her old job back. The Board of Education refused to reinstate her and instead offered her a full-time classroom teaching position not in her specialty, another non-equivalent position according to Wanamaker.

The decision

After all was said and done, Wanamaker sued claiming FMLA retaliation and interference. The school district tried to get the case thrown out, saying it did indeed offer her not one but two equivalent positions.

The school district’s motion to have the case thrown out was denied however. In it’s decision, the court accepted Wanamaker’s claim that the positions she was offered upon returning to work were not in fact equivalent positions and said it’s possible a jury will agree with her.

The bottom line for employers? Don’t take the act of moving returning workers to an equivalent position lightly.

When discussing the case, labor and employment law expert Jeffrey S. Nowak said there are three keys to avoiding a lawsuit in this situation:

  • First, Nowak says to avoid the temptation of replacing employees permanently. As demonstrated by this case, the employer’s definition of an equivalent position may differ greatly from the employee’s definition
  • Second, if you must return an employee to an equivalent position, be prepared to show you thought the decision through and document how you determined the new job is an equivalent position. Spell out the details of how the new position requires the same level of duties, skill, responsibility, earning potential, authority and opportunities for advancement, and
  • Third, Nowak suggests employers think about how the duties of the new position will be viewed by the employee in terms of prestige, authority and earning potential.

Cite: Wanamaker v. Bd. of Education, 9/25/12

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