Am I entitled to my same pay possibility after a disability leave of absence?

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Am I entitled to my same pay possibility after a disability leave of absence?

I broke my arm and was unable to work for 3 months as a food server. They hired someone to cover my shifts while I was out. Upon returning this new hire is still scheduled on my same shifts as an extra server which is not necessary. I am actually being called off some shifts due to the fact we do not need an extra server on so to save on labor I may be called off every 4 shifts. I am making half of what I made before. Is this legal?

Asked on August 3, 2017 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you were out using Family and Medical Leave Act (FMLA) leave, they had to return you to a comparable, but not identical, position when you returned: e.g. same number of hours, same pay, but does not have to be the same shifts or doing the same exact duties. If they fail to return you to a comparable position after FMLA, that may be illegal; contact your state's labor department to file a complaint. Cutting your shifts (calling you off some shifts), since that reduces your hours and pay, may be illegal.
If it was not actual FMLA leave, however--if they employer just voluntarily let you take time off from work (whether or not you were receiving disability during this time)--then they are not required to return you to a comparable position and could call you off shifts.


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