Legal Forum
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
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Posted: 2002-10-23 06:37
I have any employee who went on FMLA and was working as a Telecommuter in Omaha. While they were on leave they moved to Flordia and they now want their job as a telecommuter back. We would like to terminated this persons employment as it cost us much more money to have a telecommuter in Flordia then Omaha. We do have telecommuters in other states (not FL), but do require our telecommters to get approvel from us before they move from state to state, which this employee did not do. Can we safely terminated her telling her the position we have open for her is in Omaha and not Florida?
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Joined: Jul 09, 2002 Posts: 825
Posted: 2002-10-23 10:57
An employee returning from FMLA leave is entitled to be returned to the "same" position s/he held when leave commenced, "or to an equivalent position with equivalent benefits, pay, and other terms and condiions of employment." Your post raises the issue as to whether your employee is requesting something more than that, and your argument is that, from the Company's perspective, a telecommuter from Omaha is very different than a telecommuter from Florida-- you should be prepared to explain why if the matter proceeds to litigation. (We assume that your company has no problem allowing the employee to continue to work as a telecommuter from Omaha).
Of course, the employee might disagree. The FMLA regs. define an "equivalent position" as one with "substantially similar duties, conditions, responsibilities, privileges and status as the employee's original position." Your employee might contend that she fits within this definition. You should consult with employment counsel for a litigation risk analysis.
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Joined: Jul 09, 2002 Posts: 825
Posted: 2002-10-23 11:01
In my opinion, you will want to speak to legal counsel about this specific fact situation. Your legal counsel will probably want to know whether your company has ever terminated anyone else for moving without permission. Counsel may also want to know what the big deal is about not wanting to have a Florida telecommuter (as opposed to a Nebraska telecommuter). Counsel might be concerned because it could look like the only reason your company was terminating this employee was because the employee exercised his/her rights under the FMLA. That could result in a lawsuit (which you might have to defend in a Florida court), and that could be expensive (even if you win).
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Posted: 2002-10-23 06:37 
