Returning from Maternity Leave - HELP

lnelson · May 2003

We have an employee returning from maternity leave at the time she left she was an A/P clerk. Since she has been gone we have come across numerous errors or items never posted put in a drawer. We are considering moving her to A/R clerk similar position working under Controller (this job has more accountability than previous). She will have a new work station (smaller than her previous one) she will receive same benefits and wage. She may consider this position undesirable. Job tasks are the same except they are our invoices and customers. Is this acceptable under FMLA?

Down_the_Middle · May 2003

I think the short answer is YES; however, the real issue is likely how this is handled with the employee. If explained properly and in advance of her RTW you s/b able to accomplish this w/o alot of grumbling. Organizations undergo transformations on a daily basis and as long as she understands your committment to protecting her job with a comparable position, she'll likely find it acceptable.

sandra_d · June 2003

I would be careful about doing this ... FMLA doesn't protect an employee from disciplinary consequences unrelated to their reason for taking leave. However, if she finds this an undesirable position, and her previous position is open, I would think you might want to give her 1 final chance to work up to expectations and then be sure the supervisor monitors her work closely. If this kind of behavior happens again, I'd terminate. Why transfer a problem?

lnelson · June 2003

In the new position she would essentially be doing the same thing with 1 exception she will have "someone looking over her shoulder" instead of a sort of free reign. That would be were she would feel it an undesirable position. Otherwise, no big changes. New station based on different areas of the office closer to all the information and personnel. If it does not work out in this dept. termination would be considered. What time frame is there once they return? If right away things go wrong with this position?

Don D · June 2003

There is no magic time frame. Once a person is returned to work after FMLA, no clock continues to tick for such purposes. Be sure you are not simply looking for a way to jetison this employee for reasons related to the leave itself or the fact that you think she may take FMLA again. Something as simple as finding a few unkeyed items in a desk drawer shouldn't bring the department spotlight onto her in full intensity. Work that performance issue out separate from FMLA.I hope I am wrong, but what I think I'm reading between the lines is this: "We bring her back in a different job that we suspect she won't really like. She immediately begins to perform poorly in the new position. We feel we've satisfied all FMLA requirements and with the passage of a week, we terminate her for poor performance." I sense that you're asking for a safe termination roadmap for this employee.

I can tell you that refusing to bring her back at all or reassigning her to another position with close supervision and some different duties will both probably violate FMLA, given the only evidence you have of poor performance, that 'someone discovered' in a drawer.

My advice would be bring her back in her usual role, forget the FMLA event, counsel with her about the 'found documents', move forward with normal duties and supervision and have the supervisor understand he/she has an ongoing responsibility (daily) to ensure that all of his/her subordinates are performing their jobs.

lnelson · June 2003

In reply Don we are not trying to get rid of her we are trying to ensure work is being done correctly. The person who took over her position while she has been on leave has been doing an exceptional job. We would rather keep her in that position and utilize the returning ee in another dept that is in need of help. We are in process of changing all accounting depts. and personnel. This is my first FMLA and I was curious if a "time frame" exists but, you have answered my question and I thank you.

gillian2 · June 2003

If this is a California employee she is covered by the Ca. Pregnancy Leave regs which require that she be returned to the same position. If a person voluntarily changes to another position after an explanation of why you want to make the change you might be able to do that but to be safe you need to document the changes and get a signature from the employee. If the employee doesn't want to change you would be better off bringing her back to her job, explaining what you found in her absence, expect improvement and if that doesn't happen, document and treat it as you would any other performance problem.

lnelson · June 2003

What regulation are uou refering to I have not been able to locate? I have found the DOL regs which state "same or equivalent".

gillian2 · June 2003

The California Pregnancy Leave Act. It is part of the Fair Employment and Housing Act, Section 12945. The key section is section "a" which prohibits any type of discrimation or discharge because of pregnancy, childbirth etc. The "same job" standard comes from interpretation of the language in court cases.

njjel · June 2003

I gather from your posting that she has not yet returned to work. If so then she must be returned to the same position or an equivalent position at the same salary. I would return her to her former position and have her supervisor meet with her and point out her failures and have a plan of corrective action mapped out for her to meet.

lnelson · June 2003

>The California Pregnancy Leave Act. It is part of the Fair Employment
>and Housing Act, Section 12945. The key section is section "a" which
>prohibits any type of discrimation or discharge because of pregnancy,
>childbirth etc. The "same job" standard comes from interpretation of
>the language in court cases.

I found the section you refer to but again it states "Upon granting CFRA leave the employer shall guarantee to reinstate the employee to the same or a comparable position with no break in service....It shall be unlawful for the employer to refuse to hire, or to discharge, fire, suspend, expel or discriminate against any individual exercising his/her right to family care and medical leave or providing information with regard to such a leave."

We are not placing her in a different dept. Position from A/P clerk to A/R clerk both are accounting same salary, same benefits, same hours and similar duties. Where is it not complying? Is it just an interpetation that is implied?

CAL · June 2003

lnelson, I would return her to her original position. What you just said about moving her from an A/P clerk to an A/R clerk position tells me that she will not have virtually the same position - one pays bills and one bills customers. Aside from the fact that they would both work in Accounting and make ledger entries, their work processes will, in fact, be different. I would go with placing her back in her previous position and reassigning the temp to the open position, if able. Her performance issues can and should be dealt with, but I agree with the others that since her current position is actually available, it could appear retaliatory if you move her upon her return.

Returning from Maternity Leave - HELP

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