Court Rejects Employee’s Unsanctioned FMLA

October 1, 2007

On August 6, 2007, the United States Court of Appeals for the Seventh Circuit (covering Wisconsin) dismissed an employee’s FMLA wage complaint. The employee’s claim was based on a very novel, but unsanctioned, interpretation of the federal FMLA. The FMLA is one of the most difficult laws employers must wrestle with, and it allows room for significant gamesmanship by employees. Courts also struggle with the law as evidenced by the fact there have been opposite conclusions from different courts when dealing with the exact same issue. It is no wonder that the law continues to cause heartburn for employers.

Susan Hendricks was employed by Compass Group, USA, Inc. as a utility driver for Canteen Vending earning $12.23 per hour. As a utility driver, Hendricks performed maintenance duties and traveled to businesses where her Compass Group’s vending machines were located to fill, repair, and clean the machines. On June 2, 2003, she suffered a work-related shoulder injury. She initially applied for worker’s compensation benefits, but not FMLA leave.

One week after her injury, Hendricks returned to light duty work 25 hours per week at the rate of $9.00 per hour. On July 28, 2003, her shoulder was surgically repaired. Three days later, she requested a return to light duty work. At that time, she was restricted from lifting over ten pounds, lifting above the shoulder, and repetitive lifting. She worked subject to those restrictions until the separation of her employment in March 2004.

Hendricks objected to the temporary wage reduction she received while performing light duty work while recovering from her work injury. She filed suit seeking to recover the $3.23 per hour pay differential. She alleged she was entitled to the utility driver pay rate while on light duty under both the FMLA and a collective bargaining agreement (CBA). The employer argued that FMLA is unpaid leave and that the CBA did not obligate it to pay Hendricks the wage differential.

The FMLA guarantees qualifying employees up to 12 weeks of unpaid medical leave each year. An employee may receive compensation while on FMLA through either the use of sick or vacation leave or through a worker’s compensation program. Under the federal FMLA, an employer may require an employee to use either sick or vacation leave concurrently with FMLA leave, but may not do so if the employee is receiving pay through worker’s compensation. Additionally a worker’s compensation absence may run concurrently with federal FMLA.

Although employees cannot waive rights under the FMLA, an employee may voluntarily accept light duty work while recovering from a serious health condition. Under such circumstances the employee’s right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12 month period, including all FMLA leave taken during the period of light duty.

After an employee has completed FMLA leave, the FMLA requires an employer to restore an employee to the position held at the time FMLA began or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. However, if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. If there is an employment benefit program that provides the employee leave rights greater than that afforded by the FMLA, the employer must observe such a program.

In this case, Hendricks argued that while working on FMLA light duty she was entitled to the $12.23 per hour she was paid as a utility driver instead of the $9.00 per hour actually paid. She conceded the FMLA does not specifically support her assertion, but claimed it was consistent with the general framework of the law.

The court rejected Hendricks’ analysis. There is no such thing as “FMLA light duty.” An employee may accept light duty work in connection with a work injury or may continue with unpaid FMLA leave. The regulations do not address the rate of pay an employee is to receive while on light duty under those circumstances because it is governed by the applicable worker’s compensation law. In short, the court concluded the FMLA does not require an employer to pay a certain pay rate to an employee while the employee is on leave. It only requires that the employer permit an employee to take up to 12 weeks of unpaid leave for illness and return to her prior position or an equivalent one at the conclusion of the leave if the employee is able to return at that time. The court also disagreed with Hendricks’ interpretation of the CBA.Hendricks v. Compass Group, USA, Inc., 03CV0079 (7th Cir., August 6, 2007).

Final Thoughts
The federal FMLA does not dictate the wage rate an employee must receive while on light duty under a worker’s compensation plan. Most states have their own FMLA laws which can be different in some respects from the federal FMLA. Covered employers must comply with all of the laws that apply to them. Employers must also consider obligations that may be imposed upon them under federal and state disability and worker’s compensation laws.

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