I went on FMLA 9/29/12 and scheduled to return 11/26/12. Received call from my Regional Vice President on 11/21 at 11:17am stating to "report to the Santa Fe Springs office on Monday. That will be your new office going forward due to forced organizational changes. You will work there as a recruiter." Prior to my leave I was a Client Program Supervisor (directly managed 100+ employees, made managerial decisions, expensed mileage, cell phone) and worked at one client's site 50+ hours a week. I have emails from my management stating how great of a job I have done and my direct report-to manager has agreed to write a letter attesting to my excellence on the job. As a recruiter I will no longer manage employees, make no managerial decisions, and unable to expense cell and mileage.
Your question skews the answer a bit. No, an employer cannot demote you because you are on FLMA. However, an employer can effect a job change that becomes effective upon your return under certain circumstances.
If you can prove that the job change (demotion) was made BECAUSE you took FMLA leave, then you likely have a claim for unlawful conduct under the FMLA, the CFRA and probably FEHA as well.
If the employer can prove that this forced organizational change would have happened even if you were not on FMLA leave but instead working hard at your job, then the employer may not have acted unlawfully.
Therefore, to know if you have a case or not, you will need to know if the excuse you have been given is real or a pretext. Many factors need to be assessed to determine which it it. Things like what else occurred at the same time as the "forced organizational change" occurred like other job changes, layoffs or other evidence of the truth of that statement would be important. Whether you job was eliminated vs. combined vs. not eliminated is an important factor. Whether someone of less or equal qualifications or seniority replaced you is another. There are literally dozens of possible pays to establish pretext.
See what you can do to investigate this claim. You have up to a year from the demotion to file a complaint with the DFEH so you have a little time. Nonetheless, you should consult with an employment attorney soon. If you in the small minority of people that should file in federal court under the ADA and FMLA, as opposed to in state court under the CFRA and FEHA, you have far less time to investigate and file an administrative complaint.
Good luck to you.
I agree with Mr. Pedersen's good advice and, reading your comment to him, am glad to hear you will be contacting an attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area.
To clarify one of Mr. Pedersen's comments, under California law, you have one year to file a claim for denial of family leave or retaliation for taking family leave. The California law is the California Family Rights Act, Government Code section 12945.2 (CFRA). The claim is filed with the California Department of Fair Employment and Housing www.dfeh.gov.
The CFRA is very similar to the FMLA; the main differences pertain to pregnancy leave -- not your issue. You have two years to file a claim under the FMLA, which you can do either with the U.S. Department of Labor http://www.dol.gov/whd/fmla/ or directly in federal court.
If you were among the top ten per cent of wage earners with your company before the leave, then the employer does not have to return you to the same of a similar job after the leave. This does not appear to be your issue, but I mention it just in case.
I hope you can resolve your situation and wish you the best.
Agavni Gina HogtanianEmployment / Labor AttorneyGlendale, CA ·
The key question is why was the change made and whether it was because you took the FMLA/CFRA (California counterpart) leave. An employer generally has the right to make organizational changes based on legitimate business needs unrelated to any discriminatory motives. However, whether any unlawful discrimination took place and whether the reason provided by the employer was a pretext depends on many other facts and circumstances, including: did the "forced organizational changes" affect any other employees; was anyone hired to replace you in your previous position; did the employer continue its operations at your previous location without any other changes being made; did the employer consider making the change even before your medical leave and/or would the changes have been made even if you had not taken the medical leave; was there a substantial reduction in your pay and major benefits (such as health, retirement, vacation), and others. There are many other details that an attorney will need to know to evaluate your particular situation, and the best course of action for you to take is to contact an employment attorney for a confidential consultation.
Ophir Jacob BittonEmployment / Labor AttorneyLos Angeles, CA ·
Seems like you have already recieved good advice below. The main thing I would add is that in order to ascertain if an FMLA violation occured we would need to dive deeper factually. There are two things at play here: one they cannot interfere with your FMLA while you are on it, and two, they cannot retaliate against you for taking the FMLA leave. Here both might have occurred as you are still on FMLA leave. However, this does not mean that an employer cannot make a change. This is where the facts are critical. Good luck.
