Woman-Returning-To-Work.pngThe federal Family and Medical Leave Act of 1993 (FMLA) and the California Family Rights Act of 1993 (CFRA) provide leave and maintenance of health benefits to eligible employees in three situations.  First, leave is permitted for the serious health condition of an employee or a listed family member.  Second, leave is permitted for prenatal care, bonding with a newborn, and birth or placement for adoption or foster care of a child.  Third, under the FMLA, leave is permitted to attend to a “qualifying exigency” or to care for a covered servicemember with a serious injury or illness.  Employees who are eligible may exercise up to 12 workweeks of protected, unpaid leave in a 12-month period of time. 

An eligible employee who exercises CFRA or FMLA leave must generally be guaranteed a return to their position at the end of the leave.  Further, employees return with a guarantee that they will not suffer any adverse employment actions, including but not limited to failure to be reinstated to a comparable position held before the leave commenced.

On August 16, 2011, in Rogers v. County of Los Angeles, the California Court of Appeal held that employees are not entitled to reinstatement to their jobs if they return to work after expiration of the 12-week leave period protected under CFRA.

In Rogers, the plaintiff had worked for the L.A. County for many years as a personnel officer in the executive office.  The executive office was responsible for providing administrative and other support services to the County Board of Supervisors and its various commissions.  On April 3, 2006, Rogers began a medical leave for “work-related stress,” which she claimed resulted from some unidentified “attack on [her] integrity.”  She claimed this “stress” manifested in her “crying at work, not being able to sleep or eat, and causing her blood pressure to become ‘out of whack.’”  Although CFRA only provides for 12 workweeks of protected leave in a 12-month period of time, Rogers remained off work for a total of 19 weeks.

In May 2006, while Rogers was out on CFRA leave, the County appointed a new director of the executive office.  The new director implemented changes to the organization of the department to make it run more efficiently.  As part of the new director’s efforts to reorganize the department, she decided to bring in a new personnel officer to replace Rogers because she “felt that somebody outside the organization would come in and would be independent, objective, maybe perhaps could provide some fresh eyes into the organization.”  

Upon returning to work following her leave, a high-level human resources position was specially created for Rogers in a different department with no loss of pay or benefits.  Despite this, Rogers refused to accept the new position, claiming that it was a “demotion” and a “slap in the face,” and that she was “devastated,” “embarrassed,” “humiliated,” “hurt,” and “disappointed” by the proposed offer. 

Rogers sued, alleging that the County interfered with her CFRA reinstatement rights; and that the County retaliated against her for exercising her leave rights under the CFRA.  The County ostensibly conceded that the new job involved “very different” duties and was not “comparable” to plaintiff’s previous position.  However, the evidence established that the decision had nothing to do with plaintiff exercising CFRA leave rights.  After the jury trial, Rogers prevailed and was awarded $356,000 in damages. 

The Court of Appeal reversed, holding that it was not possible for the County to have interfered with Rogers’ reinstatement rights because an employee only has that right when she returns to work on or before the expiration of the 12-week maximum protected leave period.  Rogers did not return to work for 19 weeks.  Accordingly, the Court held, the County had no obligation to reinstate Rogers at all or to assign her to a comparable position.  In addition, the Court held there was no evidence Rogers was offered a new position as a form of retaliation for exercising her rights to CFRA leave.  The evidence at trial established that the County had a legitimate and non-retaliatory reason for its decision to transfer Rogers to a newly created position.  Specifically, the new director’s decision was based solely on her plan to reorganize the executive office.  As such, the County did not take any actions that ran afoul of its obligations under the CFRA.

Rogers is instructive for those agencies faced with employees who seek to stay out on leave past the protected 12-week period of time under CFRA leave.  Although we recommend that such matters generally be evaluated on a case by case basis, the Rogers case is yet another tool for employers to rely on in addressing issues relating to employees who seek to take leave time that falls outside of the protected 12-week period of leave allowed for under CFRA.  Although this decision interpreted California law, the CFRA, we suspect federal courts would construe FMLA in a like manner.