After returning from FMLA leave, an eligible employee must be returned to his or her former position or an “equivalent position” – one that is “virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges, prerequisites, and status.”
Because the burden of proof is on the employee to show that a shift change constitutes an “adverse employment action,” most such cases have been resolved in favor of the employer. However, some courts have ruled the other way, perhaps signifying that interpretations may be changing. In such a case, employers must evaluate all factors and carefully consider whether a different shift would constitute an “equivalent position.”
