FMLA: What if your job is given to another person?

I am currently out on maternity/FMLA leave and in the sixth of my twelve weeks. I am a salaried employee with a large company (over 70,000 employees). I was called at home last week and told that my job had been eliminated, but no other job was offered to me. I was told that I could apply for other positions within the company and that if I had not secured a job at the end of my 12 weeks, they would provide me with a severance package. My job was not eliminated; it was given to another salaried employee doing the exact job. Is this a violation of the FMLA?


It is a question of proof. You will need to prove that your employer did not eliminate your job and has terminated you because you took FMLA leave.

However, if your employer can prove that your job would have been eliminated had you been working, then you will not have a case. A significant amount of facts have to be developed.

You have two options:

  • You could file a complaint with the Department of Labor, but your employer would argue that it will find you an equivalent job and that your case is not rope for adjudication.
  • Ask what is available. I would recommend that you and your employer look at available positions. You are not entitled to your job back, you are entitled to an equivalent job.
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