Getting Back To FMLA Basics: Don’t mess with the pay of an employee on leave


With all those notice requirements and certifications and such, it’s easy to get bogged down in the minutia associated with an employee’s request for leave under the Family and Medical Leave Act.

But, a recent case is a good reminder not to overlook a basic FMLA tenet: an employee returning from leave should be restored to the same position (or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment).

Before I geek out on FMLA compliance, I must quickly thank U.S. Army South for inviting me to Fort Sam Houston to conduct international workplace social media and cybersecurity training. In addition to the super-engaged Texas audience, we had JTF-Bravo (Honduras) and Guantanamo Bay (Cuba) present and accounted for.
It was awesome!

Did this employer ding an employee’s compensation for taking FMLA leave?

In Russell v. CSK Auto, Inc. (opinion here), the plaintiff managed one of the defendant’s stores. The defendant paid the plaintiff on a draw. That is, he was guaranteed a certain level of compensation, but could earn more based on the performance of his store.

As these FMLA cases often go, the plaintiff took FMLA leave from work. Here, he took leave twice.

And twice, the defendant adjusted the plaintiff’s compensation.

The first time, the situation was fixed after the plaintiff sent a letter to the regional manager complaining of the reduction in pay. The second time, the parties agreed that the plaintiff’s compensation was lowered; however, they disputed the timing of the compensation change. That is, the plaintiff claimed that his compensation plan changed during his second FMLA leave. The defendant countered that the change happened months after the plaintiff returned.

Sounds like a dispute of material fact to me. That means no summary judgment for the employer on the plaintiff’s FMLA retaliation claim, right Judge Parker?

The claim of retaliation turns on when Plaintiff was removed from assurance pay when he took FMLA leave both in 2010 and 2012. Because the parties dispute the facts surrounding Plaintiff’s removal from assurance pay, Defendant’s motion for summary judgment on retaliation is denied.


So, remember the basics.

FMLA leave is unpaid, job-protected leave. An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.

However, any adverse decision made at or around the time an employee goes out on FMLA — anything ranging from job elimination to a pay cut — is inviting an FMLA retaliation claim.


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