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Can you change an employee’s job duties while the employee is on FMLA leave? How much change can occur and still have the position be considered equivalent under the law? Business does not stop while an employee is on FMLA leave. Some legitimate business changes may be required during an individual’s leave that may affect aspects of the job before the employee’s return to work.
Under the federal FMLA, an employee returning from a family or medical leave must be reinstated to the position the individual held before leave, or to an equivalent one. An equivalent position is one that is virtually identical to the former position in terms of pay, benefits, and working conditions. The new position must involve the same or substantially equivalent skill, effort, responsibility and authority. While calculating identical pay or benefits is fairly clear, deciding whether a job is substantially the same requires an employer to conduct a qualitative and quantitative comparison of the former and new positions. The Seventh Circuit Court of Appeals, which governs the federal courts in Wisconsin, Illinois and Indiana, demonstrated such an analysis when it evaluated the degree to which a job can be changed and still be considered “substantially similar”, in the recent case of Mitchell v. Dutchmen Manufacturing, Inc. 389 F.2d 746 (7th Cir. November 23, 2004).
Prior to going on FMLA leave on June 1, 2002, Tina Mitchell worked for Dutchmen Manufacturing, Inc. a maker of recreational vehicles. Mitchell worked on an assembly line in a cleaning position. Her job consisted of cleaning tasks including sweeping, wiping, and applying sticker decals and putty to vehicles. During Mitchell’s absence, Dutchmen was required to consolidate two of its production lines, and reassign personnel to different tasks and departments. Before consolidation, there were five cleaning positions; after consolidation, there were two.
When Mitchell returned from leave on July 8, 2002, she was assigned to her former department. She retained identical pay and benefits, but some of the tasks she had to perform had changed. She was now required to use certain small hand tools, including an electric screw gun, a screwdriver, and a seal (caulking) gun. She was expected, for each vehicle, to apply caulk, crimp four wires, and install six or seven screws, two with a screwdriver and four or five with a screw gun. According to Mitchell’s own estimates, for each vehicle, she spent approximately 40-45 minutes on the same tasks that she had performed before her leave, and only 10-23 minutes on the new tasks. After Mitchell injured her wrist by incorrectly using the screw gun for the first time, her supervisor excused her from using the screw gun. When he advised her to continue using the seal gun, Mitchell walked off the job and did not return. She sued under the federal FMLA, claiming that she had not been restored to an equivalent position.
The Seventh Circuit found that Mitchell’s new job was substantially similar to her old one. The Court considered the relative time spent on each job and found that the new tasks were not overly time consuming or physically demanding. The Court said, “Mitchell’s complaints regarding the limited use of small hand tools are the sort of de minimis, intangible, and unmeasurable aspects of a job that the regulations specifically exclude.”
What is key in the decision is the process the Court used to arrive at its determination. The decision provides a “best practice” for employers in weighing the relative tasks and characteristics of each job. In making a comparison to determine equivalency, an employer should examine at least these four job characteristics:
- Skill: Do the two jobs require different levels of education, experience, training or natural ability for their performance?
- Effort: Do the required levels of physical or mental exertion differ significantly?
- Responsibility: Is there a significant difference in levels of responsibility, such as supervision, decision-making or hiring?
- Authority: Are there different levels of control held over subordinates and is there a significant difference in the number of subordinates supervised?
The Seventh Circuit suggests that when an employer is making this comparison, relatively de minimis differences in any of these factors will not negate the equivalence of the former and new job.
If you have questions concerning the FMLA or any other employment law issues, please contact our educational services department at (414)988-8400.
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