Failure to Return Employee to Same or Equivalent Position on Return from FMLA Leave Justified Employee’s Quitting Job for Purposes of Award of Unemployment Benefits

In Bordon v. Div. of Employment Security, No. WD 66239 2006 Mo.App. LEXIS 1262 (Mo. Ct. App. Aug. 24, 2006), the court reversed the decision of the Missouri Labor and Industrial Relations Commission denying Ms. Borden’s application for unemployment benefits based on a finding that she left her employment voluntarily and without good cause.  Ms. Bordon was employed by Beverly Health & Rehabilitation nursing home as a full-time certified medical technician.  She worked a set schedule with Friday and Saturday off.  She took approved FMLA maternity leave. On her return from FMLA leave she was informed that her position had been filled.  She was offered a part-time job as a certified nurse assistant at the same pay rate, but she would have to work Friday’s and Saturday’s.  Ms. Bordon thereafter filed an application for unemployment benefits with the Division of Employment Security.  Her employer protested the claim. 

The Missouri Court of Appeals found that the denial of unemployment compensation to Ms. Bordon was erroneous.  Under Missouri law, for an employee who has quit her job to qualify for unemployment compensation, her quitting must have been for good cause attributable to her work or her employer.  Good cause may be established by substantial changes in her wages or working conditions.  It may also be established by discriminatory, unfair or arbitrary treatment.  Generally, good cause is not established by mere dissatisfaction with working conditions.  The court found that the FMLA entitled Ms. Bordon to be restored to her old position or an equivalent position.  The court found that the position offered to Ms. Bordon was not equivalent to her former position.  “Her employer’s failure to comply with the provisions of the FMLA and to offer her a position equivalent to the position she occupied prior to going on maternity leave provider her with good cause to terminate her employment.

Comment:   Most states have a similar standard to the Missouri standard for unemployment compensation where an employee quits their job.  In addition to monetary liability for violation of the FMLA (Title I, the CAA, and the PEOAA), agency employers will likely incur unemployment compensation costs if an employee quits as a result of an agency's failure to abide by the return to work requirements of the FMLA.  The FMLA’s return to work requirements are addressed in Chapter 13 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supplement).