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HR Questions and Answers

Published on July 27, 2018 3:54PM

“People are very open-minded about new things, as long as they’re exactly like the old ones.”

— Charles F. Kettering — inventor, engineer, businessman, and the holder of 186 patents; he was a founder of Delco and was head of research at General Motors for 27 years

Q. When an employee returns from FMLA Leave, does he or she need to return to the exact same position?

A. The simple answer is that returning an employee to the exact same position (same shift, wage, responsibilities and status) is the law. However what if the exact same position is not available? Under the FMLA, an employee must return to an equivalent position. This is defined as 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.

The tricky part is the term “virtually identical” to the former position. The new position must maintain the same privileges, benefits (“perks”) and status. The FMLA also tell us that effectively the same skill, effort, responsibility, and authority must be employed.

In addition the position must maintain the same status. Be mindful of the status of the new position. For example, when you offer a position with a more difficult road for advancement within the company, you arguably change the status of the position. Be certain that the road to advancement is unchanged.

For more discussion of what constitutes a “virtually identical” position, see Crawford v. JP Morgan Chase, 243 Cal.App.4th 241 (2016).

This column is sponsored by the Lower Columbia Human Resource Management Association. LCHRMA represents a gathering of Human Resources professionals. Join us each month for a luncheon and training that covers many aspects of employment law and human resources.

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