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Old 03-21-2019, 06:44 AM
 
Location: Somewhere that cost too much
380 posts, read 211,138 times
Reputation: 206

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I am currently on Paid Family Leave and was told that when I return but to work (May) my department will no longer exist. My boss is being laid off and any work I was doing for him is being transferred to another office.

I was told that there "might" be an Executive Assistant position but the company would reduce my pay. This past January the company gave out pay raises and I received one.

If they don't find me an EA position they will lay me off.

My legal question is for regarding the job change and pay rate...Is it legal for a company to offer someone a position when they come back from maternity leave at a lower pay rate?

Thanks
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Old 03-21-2019, 06:50 AM
 
700 posts, read 1,672,601 times
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I believe they have to hold *a* job for you while on maternity/FMLA, but not necessarily *your* job.
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Old 03-21-2019, 07:11 AM
 
Location: East of Seattle since 1992, originally from SF Bay Area
29,764 posts, read 54,390,602 times
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Quote:
Originally Posted by 3DogNight View Post
I believe they have to hold *a* job for you while on maternity/FMLA, but not necessarily *your* job.
That is correct, and FMLA requires the same pay and benefits, and "similar" duties if not the same as before. If laid off soon after returning you could complain to the EEOC and then sue, but if the employer can prove that it was not retaliation but unrelated business reasons, you can be let go.
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Old 03-21-2019, 08:03 AM
 
700 posts, read 1,672,601 times
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Quote:
Originally Posted by Hemlock140 View Post
That is correct, and FMLA requires the same pay and benefits, and "similar" duties if not the same as before. If laid off soon after returning you could complain to the EEOC and then sue, but if the employer can prove that it was not retaliation but unrelated business reasons, you can be let go.
Thanks for the info, that means a friend of mine was screwed while on FMLA. Interesting.

OP here is the formal part of Hemlock's accurate post:

https://www.dol.gov/whd/regs/compliance/whdfs28a.htm
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Old 03-21-2019, 08:57 AM
 
Location: Somewhere that cost too much
380 posts, read 211,138 times
Reputation: 206
Quote:
Originally Posted by 3DogNight View Post
Thanks for the info, that means a friend of mine was screwed while on FMLA. Interesting.

OP here is the formal part of Hemlock's accurate post:

https://www.dol.gov/whd/regs/compliance/whdfs28a.htm
Thank you so much for the info and link. The job itself I understand it is the reduced pay that I want to make sure they aren't screwing me over with.
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Old 03-21-2019, 04:42 PM
 
2,053 posts, read 595,092 times
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Quote:
Originally Posted by jc718 View Post
Thank you so much for the info and link. The job itself I understand it is the reduced pay that I want to make sure they aren't screwing me over with.
They may try to just buy you out with severance. How long have you been working there?
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Old 03-21-2019, 05:09 PM
 
Location: Vallejo
14,057 posts, read 16,066,811 times
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Quote:
Originally Posted by jc718 View Post
Thank you so much for the info and link. The job itself I understand it is the reduced pay that I want to make sure they aren't screwing me over with.
If the position legitimately is gone, they're not required to take you back at all at any pay. They can't eliminate you because you're on leave. That doesn't mean they can't eliminate the position for business reasons while you're on leave.

That's always questionable. They can't get "creative" and eliminate your position and create a mostly identical one, but if the department is getting shut down and the boss laid off that tends to push things over to the position just legitimately no longer being there. Hypothetically if the department ceased to exist but the boss was absorbed into a different department and they then hired a new EA that would more lean towards a violation unless the new position at the department had a lot of new job requirements they couldn't reasonable retrain you for. In other words, it's complicated.

Coming back at reduced pay is legal, or rather may be legal. Again, hypothetical. You weren't on leave and were laid off with your department and boss on April 1st. They'd be free to rehire you for some other role and at a different rate of pay later on.

Last edited by Malloric; 03-21-2019 at 05:24 PM..
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Old 03-21-2019, 05:21 PM
 
Location: Somewhere that cost too much
380 posts, read 211,138 times
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Quote:
Originally Posted by Tencent View Post
They may try to just buy you out with severance. How long have you been working there?
Ten years
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Old 03-21-2019, 05:25 PM
 
Location: Somewhere that cost too much
380 posts, read 211,138 times
Reputation: 206
Quote:
Originally Posted by Malloric View Post
If the position legitimately is gone, they're not required to take you back at all at any pay. They can't eliminate you because you're on leave. That doesn't mean they can't eliminate the position for business reasons while you're on leave.

That's always questionable. They can't get "creative" and eliminate your position and create a mostly identical one, but if the department is getting shut down and the boss laid off that tends to push things over to the position just legitimately no longer being there. Hypothetically if the department ceased to exist but the boss was absorbed into a different department and they then hired a new EA that would more lean towards a violation unless the new position at the department had a lot of new job requirements they couldn't reasonable retrain you for. In other words, it's complicated.
I understand that but back in December when the work was being sent offsite I asked is my job ok and was repeatedly I didn't have anything to worry about. That line soon became we will see. To where we are now. I was out on disability went back to work for two months and now I'm on my Paid Family Leave. I wish they had been honest while I was on my disability because I could have had more time with my son.
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Old 03-21-2019, 05:32 PM
 
792 posts, read 210,796 times
Reputation: 1322
there are two distinct situations that apply to job restoration while on leave.

1) If you go on FMLA and your position is not eliminated but for whatever reason the company decides they cannot hold the posotion open for you, you must be restored to a comparable position upon return.

2) If you go on FMLA and your department/position is eliminated while on leave, you should be treated as though you were there at the time the job was eliminated. So, if you would have been laid off, then you can be laid off while on leave with no job guarantee. FMLA does not afford you greater protections than you would have been entitled to had you not been on leave. So, in this case, you may be offered another available job at the salary commensurate for the job or be laid off -- if this is how you would have been treated if you were not on leave.

LIMITATIONS TO FMLA PROTECTIONS

An employee on FMLA leave is not protected from actions that would have affected him or her if the employee was not on FMLA leave. For example, if a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours. If an employee is laid off during the period of FMLA leave, the employer must be able to show that the employee would not have been employed at the time of reinstatement.


Companies cannot disclose these things in advance of the actual business decision.

Last edited by Maddie104; 03-21-2019 at 05:43 PM..
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