Yesterday, we looked at some of the reasons that fathers don’t like to take time off, including the fear of losing their jobs. Today, we’ll look at why that’s sometimes a valid concern for both men and women on family leave — particularly when a superstar temp takes over the job.
“I’ll Keep the Temp”
Here’s what happens: An employee goes out on family leave. You provide a replacement, whether a temp from outside the organization or someone from the inside temporarily reassigned to fill in. The manager likes the new person so much that he or she says, “forget the employee who went out on leave — the replacement is much better, and I’m going to keep her.”
The manager’s pleased with the whole deal. It was annoying at first to have someone on leave, but now it’s turned out great. Until you have to say, “Not so fast. Employees on family leave have rights, not the least of which is the right to reinstatement to the same or an equivalent position.”
With some exceptions, the law requires that employers provide each returning employee with the same position or an equivalent position.
The employee is entitled to reinstatement even if the employee has been replaced, or his or her position has been restructured to accommodate the employee’s absence.
An “equivalent position” is one that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
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The employee must be reinstated to the same or a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance) from where the employee had previously been employed. The returning employee must have the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and nondiscretionary payments.
What Is Equivalent?
It is not necessary that the employee be reinstated to the exact same job he or she left. However, the “equivalent” standard is more stringent than the standard of reinstatement into a “comparable” or “similar” position. The regulations explain that an “equivalent” position is one that is “virtually identical” to the employee’s former position in terms of pay, benefits, and working conditions.
An employer cannot permanently replace an employee who takes family leave or restructure a position and then refuse to reinstate the returning employee on the ground that no position exists.
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Further, an employee’s acceptance of a different, but allegedly equivalent, job does not extinguish the employee’s statutory right to challenge this placement decision.
For practical purposes, wherever possible, returning an employee to the same position he or she left is advisable because it avoids what may become protracted disputes with employees over the exacting “equivalence” standards that must be applied when an employee is offered a new job upon return from leave.
Family Leave: Get All the Facts
You don’t stand a chance against lawsuits (or confused and/or disgruntled employees, for that matter) without a solid working knowledge of the ins and outs of family leave. That’s where our comprehensive HR Management & Compliance Report, How To Comply with California and Federal Leave Laws, comes in.
This information-packed 118-page guide, written by an experienced California employment lawyer, features in-depth coverage of all the topics you need to know about in an easy-read, quick-reference style:
- Overview of California and federal leave laws
- Pregnancy and parental leaves
- Required notices
- Employee notifications of illness, injury, or disability
- Responding to leave requests
- Computing leave entitlement duration
- Medical exams and inquiries
- Reinstating and terminating employees
- Leave for military members’ families
- Avoiding leave-related bias claims
- And much more!
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Download your free copy of Compliance Guide to the Federal Family and Medical Leave Act and the California Family Rights Act today!