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Same or Equivalent Position Under the FMLA

When an employee returns from FMLA leave, he or she is
required to be returned to the “same or equivalent position.”  What precisely does that mean? 

Under the FMLA regulations, 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
It must involve the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill, effort,
responsibility, and authority.” How similar to the earlier position does the
equivalent position have to be?

In a recent lawsuit, a JP Morgan employee took FMLA leave
for depression and anxiety.  Before her
leave she was employed as a project manager who analyzed contracts and
regulations, and applied knowledge obtained in law school.  After she took her leave, she was placed in a
new position that, although providing the same pay and benefits, was not as
advanced, involved more clerical work, and did not require legal knowledge.  JP Morgan argued that the new position was
equivalent because it involved the same salary and benefits.  The Court, however, disagreed, finding that
the new position did not offer the same potential for advancement, did not
utilize the same training and education, and increased her clerical
duties.  Because of those factors, it
found a jury would be required to find that the new position was not “equivalent.” 

Basically, the equivalency requirement under the
FMLA is more onerous than simply proving the same salary and benefits.  “Virtually identical” means that the new
position must maintain the same privileges and status, require the same
training and skill, and have the same responsibility and authority as the
employee’s old position. Employees need to do a better job of explaining why
the new position is virtually identical, including explaining other factors
outside of salary and benefits.  Status
is really important; if the new position offers a more difficult route for
advancement, courts may be skeptical that it is virtually identical.  The same goes for a position adding more
menial duties, or not requiring the same level of expertise and education as an
employee’s prior position.