October 22, 2007 / Issue No. 5-07
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Court Puts “No-Match” Rule on Hold
Labor Relations
AGC Holds Basic Trades Forum and Multiemployer Pension Meeting
Salts Without Genuine Interest in Employment Are Not Protected from Discriminatory Refusal to Hire
Contractor’s Reasonably Based Lawsuit Against Unions Can’t Be an Unfair Labor Practice
Contractors Expect to Raise Open Shop Pay 4.8%, Staff Pay by 5.1%
Year-to-Date Collective Bargaining Yields 4.4% Increases
Audio Guidance on FLSA Available for Download
Family & Medical Leave
FMLA Does Not Guarantee Full Pay to Employee on Light Duty
Holidays Count in Calculation of FMLA Intermittent Leave
Workforce Development
AGC Releases Video Message on Workforce Crisis
AGC Offers New Education, Training & Development Resources

  FMLA Does Not Guarantee Full Pay to Employee on Light Duty
The Family and Medical Leave Act (FMLA) does not require an employer to pay an employee on light duty under a workers’ compensation plan his or her regular rate of pay, the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has held.

The case arose after Susan Hendricks, a utility driver for Canteen Vending, suffered a rotator cuff injury on the job in June 2003.  She returned to work one week later but could not perform her regular duties, so she opted to take the “light duty” option offered by her workers compensation program.  She was assigned to do office work at a rate of pay that was $3.23 less than the rate she received as a utility driver.  She had surgery in late July for which she was out of work for another three days.  She then returned to work on light duty and remained on light duty until her employment with the company ended in March 2004.  In September 2003, she applied for FMLA leave, but it is unclear whether she ever took FMLA leave.  She later sued the company asserting that she was entitled to her original rate of pay during the time she was on light duty in accordance with the FMLA and the terms of her collective bargaining agreement (CBA).  The court disagreed. 

The regulations implementing the FMLA expressly address certain “light duty” issues.  The regulation at 29 CFR 825.702(d)(2) states:

An employee may be on a workers' compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA.  The workers' compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).  At some point the health care provider providing medical care pursuant to the workers' compensation injury may certify the employee is able to return to work in a “light duty” position. If the employer offers such a position, the employee is permitted but not required to accept the position (see Sec. 825.220(d)).  As a result, the employee may no longer qualify for payments from the workers' compensation benefit plan, but the employee is entitled to continue on unpaid FMLA leave either until the employee is able to return to the same or equivalent job the employee left or until the 12-week FMLA leave entitlement is exhausted.

The regulation at 29 CFR 825.220(d) provides:

Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA.  For example, employees (or their collective bargaining representatives) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer.  This does not prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a “light duty” assignment while recovering from a serious health condition (see Sec. 825.702(d)).  In such a circumstance the employee's right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of “light duty.”

Hendricks argued that she substituted light duty work in lieu of traditional FMLA leave and was entitled to her full rate of pay while on “FMLA light duty.”  The court found that “there is no such thing as ‘FMLA light duty’” under either the statute or its regulations.  “To the extent that ‘light duty’ is mentioned in the regulations, it is as a component of a workers’ compensation program,” said the court.  “These regulations do not address the rate of pay an employee is to receive while on “light duty” because that matter is covered by workers’ compensation and not by the FMLA.”

The FMLA entitles an employee to return to the same or an equivalent position upon return from FMLA leave, including the same rate of pay.  However, this right does not apply if the employee is unable to perform essential functions of the position because of a physical or mental condition, including the continuation of a serious health condition.  (Such an employee may have rights under the Americans with Disabilities Act, but this was not an issue in the present case.)  Even if Hendricks actually took FMLA leave, she was not able to perform the duties of a utility driver and was therefore not entitled to return to the same or equivalent position, the court found. 

The court also rejected Hendricks’ claim under her CBA.  Hendricks argued that she was entitled to the utility driver rate of pay pursuant to a CBA provision stating that employees “who work on a temporary basis in a lower paid classification shall retain their regular rate.”  The court found that Hendricks’ claim failed because she did not establish that light duty is a classification under the CBA or that she had in fact been employed in light duty on only a temporary basis. 

Hendricks v. CompassGroup, USA, Inc., 496 F3d 803 (7th Cir., 8/6/07).

For more information on the FMLA, click here. [ return to top ]