My Employer Won't Hire Me Back After FMLA

The FMLA doesn't always guarantee that your employer will take you back after a leave.

The FMLA doesn't always guarantee that your employer will take you back after a leave.

The purpose of the Family and Medical Leave Act (FMLA) is to allow employees to take unpaid time off work to tend to serious personal issues without having to fear retaliation, loss of employment or any other adverse action by an employer. If your leave of absence was protected under FMLA but your employer refuses to hire you back, you may be able to exercise your legal rights and force your employer to take you back or to at least compensate you for the violation.

Employer Must Reinstate

It isn’t necessarily an FMLA violation for your employer to not hire you back into the exact same position you held when you started the leave. However, they must offer you a position that’s nearly identical to the one you held. Provided that the new position involves similar duties, responsibilities and status; requires the same level of skill; offers the same level of compensation and benefits; and allows you to report to the same job location at your previous schedule -- your employer need not reinstate you into the same position.

Layoffs During Leave

Your employer is prohibited from retaliating against you for taking an FMLA leave, meaning they can’t consider it a negative factor for any work-related reason, such as when you’re up for a promotion. If your employer decided to implement a general layoff while you were out on leave, and you would have lost your job regardless of whether you took a leave of absence or not, FMLA doesn’t require that you be hired back. However, this doesn’t mean that your employer can consider your FMLA leave as a factor when determining which employees will be laid off.

Other Job Security Issues

Under the FMLA, job reinstatement isn’t an absolute. The law allows your employer to terminate your employment if at any time during the leave you provide notice of your intention not to return to work after the leave. You should also consider whether your leave exceeded the 12-week maximum allowed under the statute. Once your leave extends beyond the 12 weeks, it’s no longer protected under FMLA, which means your employer has no obligation to hire you back.

Filing FMLA Complaint

If your employer’s reason for not hiring you back doesn’t meet one of the job reinstatement exceptions under FMLA, you have the option of filing a complaint with the U.S. Department of Labor’s Wage and Hour division. The department will investigate and make a determination as to whether not hiring you back was an FMLA violation and whether you’re entitled to your job or not. As an alternative, you always have the option of filing a lawsuit against your employer in court to recover damages, such as lost wages.

 

About the Author

Michael Marz has worked in the financial sector since 2002, specializing in wealth and estate planning. After spending six years working for a large investment bank and an accounting firm, Marz is now self-employed as a consultant, focusing on complex estate and gift tax compliance and planning.

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