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The court acknowledged that "the FMLA certainly does not give employees an unconditional right to reinstatement. ... [I]f an employee's position is eliminated while he is on FMLA leave for reasons unrelated to the taking of leave, he has no right to reinstatement."

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legal updates

February 2008

FMLA UPDATE


Employer's Defense To Reinstatement Fails

By Christopher W. Olmsted, Esq.

When an employee covered by the FMLA or CFRA returns from a protected leave, she is ordinarily entitled to reinstatement to the same or equivalent position. What if the employee's position is eliminated during the leave? In certain circumstances, as described below, reinstatement may not be required. Unfortunately, employers often misapply the rules and quickly end up in litigation.

A recent federal Seventh Circuit case, Breneisen v. Motorola, Inc., provides an illustration. In that Illinois case, a Motorola employee named James Breneisen took a medical leave of absence. During the leave, Motorola divided his Production Analyst job duties among a variety of other workers. Upon his return, the company refused to return him to his former position. Instead, it assigned him to an assembly line position. Motorola claimed that it did not have to reinstate him to his former position because that position had been eliminated.

Although the trial court dismissed Mr. Breneisen's claim, the appellate court reversed the ruling and reinstated the case. The court acknowledged that "the FMLA certainly does not give employees an unconditional right to reinstatement. ... [I]f an employee's position is eliminated while he is on FMLA leave for reasons unrelated to the taking of leave, he has no right to reinstatement."

The court found sufficient evidence that Mr. Breneisen's job was eliminated for reasons related, rather than unrelated, to the taking of leave. The findings included:


  • Before taking leave in January 2001, Breneisen was given increased responsibilities and was told he was being considered for a salaried position. All indications were that he was performing vital, not dispensable, functions.
  • Company managers testified that many of his functions were distributed to other employees simply because he was not available to perform them.
  • Motorola offered no business justification for reassigning the job functions, apart from the leave of absence. (For example, there was no organizational restructuring or reduction in force.) The evidence created an inference that his position would not have been eliminated if he had not taken leave.


  • The court concluded: "Motorola appears to have simply replaced Breneisen or restructured his position to accommodate his absence. If that was the case, [he] would have been entitled to reinstatement."

    Our own federal circuit, the Ninth Circuit, has not offered much guidance on the issue of job elimination as a defense to reinstatement after an FMLA leave. Do not assume, however, that our circuit would have ruled differently. Refusing to reinstate an employee returning from a protected leave on account of job elimination is risky. Prior to making such a decision, employers should carefully evaluate of the business reasons for eliminating the position, and seek legal advice from an employment law attorney.

    More Legal Update articles.
    Download entire February Legal Update in PDF format.

    This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.



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