FMLA may not save your position if the company eliminates your job in a reduction-in-force

The Family and Medical Leave Act was enacted in 1993. It allows employees to take up to 12 weeks of unpaid leave if they or a close family member have to tend to a serious medical condition. FMLA also allows employees to sue if their rights are violated under the Act. This case went to trial and the plaintiff lost. The Court of Appeals sustains the verdict against him.

The case is Barger v. First Data Corp., a summary order issued on July 6. Plaintiff took FMLA leave and tried to return to work with a doctor's note. But defendant told plaintiff that his position was eliminated. True, FMLA prevents management from denying a return-to-work under certain circumstances, but FMLA leave does not guarantee that you will have your job back upon return from leave. Instead, the statute says that restored employees are not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been been entitled had the employee not taken leave." This language often applies when the employee's position is eliminated when he is out of FMLA leave.

Plaintiff loses because, during FMLA leave, the company enacted a reduction-in-force, or a RIF. At trial, the company put on evidence that, during this time, it eliminated the top 10% of its most highly compensated positions, including plaintiff's position, for which he earned more than $70,000 per year. Before plaintiff tried to return to work, his position was already included in the RIF list. The Court of Appeals (Bianco, Carney and Komitee [D.J.]) says the jury credited this evidence, which is why plaintiff lost at trial, and the Court of Appeals will not second-guess the jury's factual findings on appeal. That is a fact of appellate life, even if plaintiff in fact had better evidence on this issue than management did. We let the jury decide what happened.