I am supposed to start back to work on Monday after taking my maternity leave. My employer called today to tell me that my position will be changing a bit. I know under FMLA it states they must give you your position back or something comparable. I did question my employer about pay to verify my salary and was told they were not sure what they were doing yet. Can they decrease my pay? There are two situations that I am wondering if they give my employer the right to change my pay to a lesser amount.

1. I ended up taking 15 weeks rather than 12. I had the FMLA paperwork filled out by my doctor and turned it into my employer prior to 30 days before my leaving. I took a 13th week off as my vacation time and then they (my employer) asked if I wanted to go ahead and take off earlier than we had originally discussed. Can they use that against me even though they offered the extra time and did not ask me to come back during the 12th week?

2. My hours have to change. I used to go in anywhere between 6-9am and work 9-12 hours per day. Now that I am going back I have to leave between 4 and 4:30pm to pick my children up. My employer has been aware of this since right around the time I found out I was pregnant and has never mentioned it would be a problem. I am still willing to work 9-10 hours a day and did sign something with my employer during one of my reviews that stated I would receive a certain pay if I worked 40-45 hours per week. Even though my hours are changing I still fall into the agreed upon amount of hours. Can they decrease pay because of the change in time?

I have also been in contact with the company the entire time I have been gone and nothing has been mentioned until now.

Please help!

Because you took more than the 12 weeks guaranteed by law, your right to be reinstated to the same or a comparable position (or any position at all) has expired. So yes, they can decrease pay for either of the reasons you postulate.

cbg is right about your job protection expiring.

You may still be able to do something with your situation, though. cbg does not want to hear me go off on a tangent again about working hours and salaries and the Fair Labor Standards Act, so feel free to get in touch with me if you want my views on that.

Also, I am aware of a couple of cases in which plaintiffs sued their employers for promissory estoppel and/or breach of implied contract, essentially saying that the employer made promises to return them to their former positions even though their leaves were longer than 12 weeks. I don't know all of what your employer said to you, or whether your facts are strong enough to merit a lawsuit, but you may want to talk to a local attorney about it.

--Cynthia

**Note: the foregoing is provided for educational purposes only and does not constitute legal advice.**

Thanks for the info. After speaking with my employer today they told me I will have the same position and pay. I guess yesterday when I told them how I felt it did me some good!

Also, I am aware of a couple of cases in which plaintiffs sued their employers for promissory estoppel and/or breach of implied contract, essentially saying that the employer made promises to return them to their former positions even though their leaves were longer than 12 weeks. I don't know all of what your employer said to you, or whether your facts are strong enough to merit a lawsuit, but you may want to talk to a local attorney about it.

--Cynthia

**Note: the foregoing is provided for educational purposes only and does not constitute legal advice.**

Do you have any legal citations? I don't recall coming across any such cases but if they are out there, I'd like to be familiar with them.

cbg is right about your job protection expiring.

You may still be able to do something with your situation, though. cbg does not want to hear me go off on a tangent again about working hours and salaries and the Fair Labor Standards Act, so feel free to get in touch with me if you want my views on that.

Also, I am aware of a couple of cases in which plaintiffs sued their employers for promissory estoppel and/or breach of implied contract, essentially saying that the employer made promises to return them to their former positions even though their leaves were longer than 12 weeks. I don't know all of what your employer said to you, or whether your facts are strong enough to merit a lawsuit, but you may want to talk to a local attorney about it.

--Cynthia

**Note: the foregoing is provided for educational purposes only and does not constitute legal advice.**

It would be nearly impossible to go for a breach of implied contract (which you would need to pay an attorney for) unless you had a WRITTEN letter stating that you would have your regular job waiting for you no matter how long you took on leave. I highly doubt anyone gets that unless they are a really important executive with a very clear employment contract.

Reply to ElleMD: There are several promissory estoppel cases in the FMLA/maternity leave context. (I just finished writing a treatise on family responsibilities discrimination, which includes FMLA and pregnancy discrimination claims, and promissory estoppel is one of several creative legal arguments plaintiffs have made.) Here are a couple of cites: Farina v. Compuware Corp., 256 F.Supp.2d 1033 (D.Ariz. 2003) (plaintiff alleged PE based on employer's statement that her FMLA/maternity leave would end on a certain date; claim failed because plaintiff did not show she relied on the statement); Fisher v. Rizzo Bros. Painting Contractors, Inc., 2005 U.S. Dist. LEXIS 31901 (E.D. Ken. 2005) (plaintiff claimed promissory estoppel in connection with supervisor's statement she would be rehired); Jaskowski v. Rodman & Renshaw, 842 F. Supp. 1094 (N.D. Ill 1994). (In a non-pregnancy context, see Lincoln v. Sears Home Improvement Products, 2004 U.S. Dist. LEXIS 402 (D. Minn. 2004) (promissory estoppel claim allowed to proceed in FMLA case where man took leave to care for ill parent).

Response to demartian: the essence of a promissory estoppel claim is that there is no written agreement -- typically, one brings the case based on a oral promise. If you are saying, however, that it is difficult to prove if you don't have something in writing, you are right in most cases (there could be witnesses, the speaker could admit making the promise, etc.).

--Cynthia

**The foregoing is provided for educational purposes only and does not constitute legal advice.**