Publications

Minor Changes to Returning Employee’s Job Duties Do Not Violate FMLA

September 27, 2006

Employers wrestling with their reinstatement obligations under the Family Medical Leave Act (“FMLA”) won a small, but significant victory in the recent case Smith v. East Baton Rouge Parish School Board. Relying on the FMLA’s requirement that employers reinstate employees returning from FMLA leave to the “same” or “equivalent” position, Phyllis Smith, a school board bookkeeper, sued her employer, claiming the job to which she returned was not the same one she left.

In point of fact, Ms. Smith was correct. During her leave of absence, the school board did revise Ms. Smith’s job description. Whereas she had, before her leave of absence, traveled from school to school working directly with the principals and their staff, after her return, Ms. Smith was assigned to work from the board’s central office. However, Ms. Smith’s salary remained the same and she was still charged with providing accounting support to school principals and their staff. Nevertheless, apparently preferring life on the road to being chained to a desk, Ms. Smith claimed the school board violated the FMLA.

The Fifth Circuit Court of Appeals, however, disagreed with Ms. Smith, holding the changes made to Ms. Smith’s job duties by the school board were de minimis. In other words, the court decided the differences between Ms. Smith’s job, before and after her leave, were insignificant. Accordingly, Ms. Smith’s FMLA claim was tossed out.

While this decision is certainly good news for employers, it is important to note that the school board prevailed because it was able to show the changes it made were minor and Ms. Smith’s core job duties, pay, and benefits remained the same. The employer certainly would not have fared so well if it had reduced Ms. Smith’s hours, pay, or assigned her significantly different job duties.

As this case illustrates, reinstating an employee returning from FMLA leave, even when only minor changes have been made in the employee’s job, can be a tricky proposition. Head off a potential lawsuit by always reviewing the returning employee’s job duties—pre- and post-leave—with the employee’s manager before the employee returns to work. If significant changes have been made or proposed, discuss those changes with qualified employment counsel before the employee reports for duty.

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