Not an FMLA violation: Worker’s job eliminated while out on leave

When an employee’s out on FMLA leave, and their job gets eliminated during a company restructuring, do you have to hire them back? The 2nd Circuit addressed this in a recent court ruling.

Top 10%

Steven Barger worked for First Data Corp. in New York City when he needed to take FMLA leave.

While Barger was out on FMLA leave, the company underwent a reduction in workforce. The top 10% of the most highly compensated employees were eliminated, which included Barger.

Barger sued, claiming the company violated the FMLA by eliminating his position while he was on leave. The company was required to reinstate Barger in his old position, he claimed.

But the 2nd Circuit disagreed. It said the company wasn’t obligated to bring back an eliminated position for someone on FMLA leave.

Furthermore, the court said there was no FMLA violation because Barger’s position would’ve been eliminated regardless of his leave status.

“An employer can avoid liability under the FMLA if it can prove that it would not have retained an employee had the employee not been on FMLA leave,” the 2nd Circuit said.

The company’s clear reduction in workforce plan helped defeat Barger’s lawsuit.

Cite: Barger v. First Data Corp., 7/6/21.