7th Circuit: FMLA Does NOT Dictate Wage Rate While on Light Duty under Workers’ Comp

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On August 6, 2007, the 7th U.S. Circuit Court of Appeals ruled that the Family and Medical Leave Act (FMLA) does not dictate the wage rate for an employee while on light duty under a workers’ compensation plan. Hendricks v. Compass Group, USA, Inc., No. 06-3637 (7th Cir., August 6, 2007).

Compass Group employed Susan Hendricks as a utility driver for Canteen Vending, paying her $12.23 per hour. As a utility driver, Hendricks performed maintenance duties and traveled to businesses where Compass Group’s vending machines were located to fill, repair and clean those machines. On June 2, 2003, she suffered a rotator cuff injury while at work. Instead of taking FMLA, she elected to take light duty under her workers’ compensation program.

While on light duty, Hendricks did office work for 25 hours per week earning $9 per hour. Hendricks worked in this light duty capacity until the cessation of her employment with Compass Group in March 2004. Hendricks filed suit seeking recovery of the $3.23 per hour pay differential between her wages as a utility driver and her wages while on light duty. She asserted that while on light duty she was entitled to receive the pay rate she had received as a utility driver under both the FMLA and the collective bargaining agreement (CBA). The district court granted Compass Group’s motion for summary judgment and Hendricks appealed. The FMLA regulations acknowledge that under some workers’ compensation programs a health care provider may certify that an employee is able to return to light duty work and is free to accept that light duty work or continue on unpaid FMLA leave.

Hendricks argued that while she was working on “FMLA light duty” for $9 an hour she was entitled to the $12.23 an hour that she was paid as a utility driver. Hendricks asserted that she did not take traditional leave under the FMLA, but instead substituted light duty work in lieu of leave. She acknowledged that there are no statutes or regulations that directly support her conclusion, but contended that her position was consistent with the statutory provision guaranteeing placement in an equivalent position upon return from FMLA leave.

The court ruled that her reading of the statutes and regulations was incorrect and that there is no such thing as “FMLA light duty”. The court stated: While an employee may receive payment through workers’ compensation benefits while on FMLA leave and an employer may not require an employee to use paid leave time while receiving workers’ compensation … the FMLA does not require an employer to pay a certain pay rate while the employee is on leave; the FMLA only requires that an employer permit an employee to take up to twelve weeks of unpaid leave for illness and return to his prior post or an equivalent position.

While the FMLA requires that an employee be able to return to the same or equivalent position and pay rate that he held prior to going on FMLA leave, such a requirement only applies if the employee is able physically to perform the functions and duties of that position … Even if Hendricks took FMLA leave (and it is not clear whether or not she did), Hendricks was unable physically to perform the duties of a utility driver, and thus she was not entitled to return to the same or equivalent position.

Hendricks also contended that she was entitled to recover wages under the CBA. The CBA includes the following provision: “Employees who work on a temporary basis in a lower paid classification shall retain their regular rate.” This claim also failed because light duty was not among the classifications listed in the CBA.

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