350 Return to equivalent position after leave

Where the Complainant had already been granted and exhausted all his state family medical leave and remained off of work on unpaid leave at the time the Respondent canceled his health care benefits for nonpayment, there was no basis in law for his claim that the Respondent violated his right to return to the same health care benefits upon his return from leave under the Wisconsin Family and Medical Leave Act. Carrington v. Milwaukee Cnty. Transit Sys. (ALJ Decision, ERD Case # CR201303146, 07/31/14) (unavailable online).

The Respondent was within its rights under the WFMLA to require that the Complainant and all other employees continue to pay their portion of their health insurance premiums while out on family medical and other leave, and to cancel their health insurance benefits for their failure to pay these premiums while out on leave, regardless of the reason. See Wis. Stat. § 103.10(09). Such does not constitute interference with, restriction, or denial of an employee's right to return to the same or an equivalent position and benefits under the WFMLA. Carrington v. Milwaukee Cnty. Transit Sys. (ALJ Decision, ERD Case # CR201303146, 07/31/14) (unavailable online).

If an employer can successfully show that, for reasons wholly unrelated to family or medical leave, an employee’s position or equivalent position no longer existed when that employee returned from leave, the employer will not be in violation of sec. 101.10(8), Stats., which requires an employer to immediately restore an employee returning from family or medical leave to the position he held before the leave began, or to an equivalent position. Hull v. PFS Corp. (ALJ decision, 04/07/06).

The employer must immediately place the employee in his or her former employment, or an equivalent employment position if the employee's former position is not vacant. An equivalent employment position means a position with equivalent compensation, benefits, working shift, hours of employment, job status, responsibility and authority. An employee who returned from family leave was not placed in an equivalent employment position where: her supervisory duties were reduced from supervising four employees to supervising one employee, her former position required no clerical work while her new position required 23 percent clerical work, and (despite still being designated as a manager) her new job duties were far less significant than those she performed prior to leave. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992).

While the Complainant was taking family leave under the Family and Medical Leave Act, her employer informed the employees that it was closing its office in Wisconsin. Employees were given the option of relocating to Illinois or being discharged. Complainant was not offered this option. The employer is liable under the Act because it did not give an employee who was taking advantage of her rights under the Act the same privileges as employees who took no qualifying leave of absence. Benefit Trust Life Ins. v. DILHR (Milwaukee Co. Cir. Ct., 12/17/90).