FMLA and NJFLA “Same or Equivalent Position” Requirement Analyzed

Theodossiou v. Commerce Bank, 2009 WL 2382218 (D.N.J., July 31, 2009) – The plaintiff, an operations manager, returned to work from FMLA/NJFLA leave following the birth of her child. While she was out, her employer began a reorganization, which anticipated eventual elimination of her position. Upon her return, the plaintiff received the same salary, but was given miscellaneous duties during the reorganization. She was also moved from management space to an employee cubicle.

In determining her entitlement claim under both statutes, the federal district court concluded there was insufficient evidence to determine whether the plaintiff had been returned to the same or an equivalent position, as required under the FMLA/NJFLA. While “de minimis” changes such as the change in office space do not violate the law, questions of fact existed regarding her job description, actual work performed, and authority possessed before and after her leave. The court therefore determined the issue must be submitted to a jury.

Note: This article was published in the September 2009 issue of the New Jersey eAuthority.