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A new issue has risen to the top of the Family and Medical Leave (FMLA) complaint list. In 2021, discrimination was the issue at the heart of the greatest number of FMLA complaints, according to the Department of Labor’s Wage and Hour Division (WHD).

The WHD, which enforces the federal FMLA, noted that termination, which had previously topped the list, fell to second place. The top issues for 2021 were:

  1. Discrimination
  2. Termination
  3. Refusal to grant FMLA leave
  4. Refusal to restore to Equivalent position
  5. Failure to restore health benefits

The WHD also reported an increase in the amount of back wages paid for FMLA violations in 2021. Employers paid $1,436,259 in back wages last year, an increase of more than $250,000. The amount of back wages paid has fluctuated over the last few years.

  • 2020: $1,168,898
  • 2019: $1,915,512
  • 2018: $1,761,138
  • 2017: $1,481,952

Job restoration after FMLA leave

When an employee returns from FMLA leave, the employee must be restored to the same job or to an equivalent job. Although an employee is not guaranteed the actual job held prior to the leave, the job the employee returns to must be virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). Equivalent pay includes the same or equivalent pay premiums, such as a shift differential, and the same opportunity for overtime as the job held prior to FMLA leave.

An employee is entitled to any unconditional pay increases, such as cost of living increases, that occurred while the employee was on FMLA leave. Pay increases conditioned upon seniority, length of service, or work performed must be granted only if employees taking the same type of leave for non-FMLA reasons receive the increases.

Equivalent pay includes any unconditional bonuses or payments. If an employee does not meet a specific goal for achieving a bonus because of taking FMLA leave, however, the employer must only pay the bonus if employees taking the same type of leave for non-FMLA reasons receive it.

For example, if an employee is substituting accrued paid sick leave for unpaid FMLA leave and other employees on paid sick leave are entitled to the bonus, then the employee taking FMLA-protected leave concurrently with sick leave must also receive the bonus.

All benefits an employee had accrued prior to a period of FMLA leave must be restored to the employee when the employee returns from leave. An employee returning from FMLA leave cannot be required to requalify for any benefits the employee enjoyed before the leave began.

Key to remember: Employees returning to work following FMLA leave must be restored to the same or equivalent job.