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Lower Pay for Light Duty Work Does Not Violate FMLA

    Client Alerts
  • August 24, 2007

Employees who take job-protected leave under the Family and Medical Leave Act (“FMLA”) are entitled to reinstatement to the same or equivalent position.  An equivalent position is defined as one with the same salary and benefits.  What happens if the employee is only medically capable of returning to a modified position after FMLA leave?  Must the employer maintain the employee’s previous salary?  In a recent case from the Seventh Circuit Court of Appeals, Hendricks v. Compass Group USA, Inc., the court rejected a pay discrimination claim from a reinstated employee.  The employee was medically unable to resume her old job after FMLA leave, and returned in a light duty position.  Compass reduced her salary in line with the reduced duties that made up the light duty job.  She sued, claiming that under the FMLA, she was entitled to reinstatement at her old salary regardless of her reduced duties.


The Seventh Circuit rejected the plaintiff’s claims, affirming summary judgment for Compass.  The court defined the salary reinstatement obligation under the FMLA only to apply in situations where the employee can perform the essential functions of her old job.  If the employee is medically incapable of performing these duties, the employer may vary the pay rate based on state Workers’ Compensation laws, or in line with the changed job duties and responsibilities.  Employers with employees unable to return to their old jobs after expiration of FMLA leave should not hesitate to consider light duty jobs, even if such jobs change the terms and conditions of employment.