Return to similar position, lesser pay

HRQ

An almost-5-year employee is on FML due to pregnancy complications and currently is restricted from any kind of work at all. She is a Preschool Director and her position is critical to business operations.

We anticipate having to replace her during her Leave (unless she miraculously improves). We could return her to a similar position that does not pay similarly.

Her current annual pay including incentives, etc, is about $27,000. The position we'd be able to restore her to pays around $21,000 annually. We might be able to justify slightly higher pay because of her experience with the company, but probably not higher than $22,000 or so.

So my question is... Under FMLA, can I restore her to a similar position at significantly lower pay under these circumstances?

POPEYE

Would her $27,000 be in the upper 10% of your entire company / school district? If yes, then you may want to take a look at the "Key Employee" portion of the REGS. If you are a local educational agency, there are special rules for you.

Minus either of the above, then check out sections 825.214 and 825.215 of the REGS.

marc

Once you have worked your way through the Key EE aspects, you will probably conclude (at least I did), that actually being able to use these provisions is a long shot.

So, unless you do qualify as an Educational Institution, I think you are out of luck. If the complications are going to last a long time, the FML will only apply for the 12 weeks, so if she cannot return to work at the end, you are free to replace the position permanently.

Otherwise, if you return her to a lesser paying position, you will not meet the equivalent position requirement, in my opinion.

Whatever

You tell an employee, I presume in writing, that they are entitled to FMLA and her position etc. will be protected. You should not change the rules at this point (i.e. saying she is a key ee). The lawyers just love things like that.

LivindonSouth

You cannot change the rule after you announce their entitlement. Read the Act. You must announce these things up front, in your first letter.

pork1

HRQ: I would encourage you to put a person in her place in a temporary hire situation and up-front make sure the person knows that when your FMLA employee returns, that the new person or temporary person would go to the other position or at lease you will attempt to work the person into a more permanent situation at that time. I would make sure this person also fully understands the compensation package is, likewise temporary, if you are paying the higher salary.

The person should also know the potential weeks and what will be expected, when. In our case our medical leave policy allows for an extension of 12 weeks to 26 weeks. This potential situation should also be covered, as well as, the possibility that the new mother may not want to come back at all!

I hope this helps. I read the regs as requiring the FMLA person to return to her position when released, within the 12 week limit.

PORK