Relocation Repayment and FMLA (another throw to the readers!)

by Evil HR Lady on February 10, 2016

I have worked for the same company since 2005, and had a solid career with them. In 2015, I was relocated into a position and signed a one-year contract, which should technically end soon. I have multiple reasons to feel less satisfied with the position and to be considering alternatives; however, have been determined to keep my agreement and pass the one-year mark (which I will do).

That said, in this last year, I have taken a 14-week maternity leave, which was partly paid, vacation, and partially unpaid. Do you know this affects my “one-year” tenure in the position, particularly the unpaid leave (which I believe was 5 weeks)? I would like to give them a decent notice if I should decide to leave the position (which I think is likely), but I also want to make sure that I have surpassed my one year mark officially.

Could you tell me whether the unpaid leave (or any of the above) would be factored out of my one-year time-frame? It is not explicitly written in the contract.

As a side-note, I am achieving positive results, yet have a strained connection with my boss.

I’m 90 percent sure that the leave, which was FMLA approved (I assume–correct me if I’m wrong) still counts towards your time in the position for this purpose, as the contract probably says 1 year, and nothing else (since you said it’s not explicit). The extra two weeks were not FMLA approved, since that maxes out at 12 weeks. Now, if they were going to say that didn’t count towards the year, they’d have to say that for all leaves (jury duty, personal leaves, etc), and not just FMLA leaves. (Congratulations on the baby, by the way!)

I’ve never heard of relocation repayment requirements ever being extended because of a leave of absence, but, honestly, nothing surprises me now. So, I’ll throw this out to my readers (since they did such a fabulous job with the last one and I even got two of my favorite lawyers to write posts about my post–Jon Hyman’s Can an employer prohibit an employee from job hunting during FMLA leave? and Eric Meyer’s Ok, it’s my turn. Can you forbid an employee from job hunting while on FMLA leave?)

On a practical level, unless you already have a new job lined up, it’s unlikely you’ll find one and be ready to start it in the next few weeks anyway. You don’t want to quit your job without a new one lined up, so go ahead and start looking and unless the comments say otherwise, don’t panic about the repayment thing.

 

{ 6 comments… read them below or add one }

Joyce Morrison February 10, 2016 at 2:44 pm

It depends what her contract says. If it says “worked time” then she would need to work a full year (2080??) hours.

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Pwyll February 10, 2016 at 3:36 pm

I would be surprised if the employment agreement got into that level of detail. Usually these types of agreements say that you’ll be employed as an “x” for a period of one year. When you’re on leave you’re almost certainly still “employed” by the company, even if you’re on unpaid leave.

But as Joyce says, it’s really going to depend on what the contract states as its definitions of things like work, employment, etc. or if you received some kind of written acknowledgement that your unpaid leave above FMLA would not count as your being “employed,” which would be very strange.

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Benefit World February 10, 2016 at 10:03 pm

FMLA leave is unpaid unless the employer agrees to pay a portion of it or all of it. Unpaid time does not negate any eligibility for FMLA leave. According to the FMLA regs, this is what one section states. Refer to the last sentence below. Even if there is a contract, it’s likely the FMLA will override the agreement. That being said, the “extra” 2 weeks taken beyond FMLA may be construed as leave that doesn’t affect the agreement if they’ve consistently offered it to others and treated them as if it did not affect their position.

§825.220 (c) The Act’s prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies. See §825.215. (refer to section e of 825.215)

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DS3434 February 11, 2016 at 12:01 am

I would also add that for the right person, many companies will offer a sign-on to offset penalties for relo, tuition reimbursement, etc. So I agree with EHRL that the time to start your search is now.

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L February 11, 2016 at 8:56 pm

I would recommend referencing the employee handbook for how benefits are handled during unpaid leaves. I once worked for a company where certain types of leave would lead to an adjustment in the way your start date was calculated. I expect that a published employee handbook could fairly be used to interpret your contract.

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Stephanie February 11, 2016 at 9:46 pm

This will depend on your company policy. Per the DOL, “FMLA does not entitle an employee to the accrual of any seniority… during any period of FMLA leave.”

Where I work, we include leave time in seniority calculations, but not it is not compulsory.

(My reference: http://www.dol.gov/whd/opinion/FMLA/prior2002/FMLA-109.htm)

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