An employee injured her
shoulder at work while performing her vending driver
duties. She applied for workers' compensation benefits,
but did not apply for FMLA leave. Instead of taking
FMLA leave, the employee elected to take light duty
under her workers' compensation program. While on light
duty she was paid $3.23 less per hour than her regular
wages. The employee sued alleging that the company
violated the FMLA by paying her less while she was on
"FMLA light duty."
The Seventh Circuit
disagreed, finding that there is no such thing as
'FMLA light duty.' The Court concluded that the FMLA
does not require an employer to pay a certain pay rate
while the employee is on leave: FMLA only requires
that an employer permits an employee to take up to twelve
weeks of unpaid leave for illness and return to his/her
prior position or an equivalent position. Light duty is
a creature of workers' compensation. As such, the rate
of pay the employee is to receive while on light duty is
a matter covered by workers' compensation, a policy, or
labor agreement, not the FMLA.
An employee who elects to
go on light duty in conjunction with FMLA leave will be
paid at the rate dictated by worker's compensation
and/or the employer's policies. FMLA does not
dictate any particular rate of pay. The employee tried
to argue that the employer failed to return her to an
equivalent position. The Seventh Circuit found that the
wage rate was dictated by workers compensation, not the
FMLA, thus the employee did not have an FMLA right to an
equivalent position because she was unable to perform
all of the essential functions of her position. In
Hendricks v. Compass Group, USA, Inc., No. 06-3637, 2007
U.S. App. LEXIS 1860-6 (7th Cir. Aug. 6, 2007).
