I will try to keep this as short as possible... I have worked for the state of Florida for ten years and have always been known as a hard worker. For my 2nd pregnancy I worked up until the day before I delivered my baby 3 months ago. I had FMLA papers filed and approved a month before I left to allow me to have up to 6 months leave (which is allowed as a state employee) but planned to come back as a part time worker after 3 months - basically to help the program out since there are only a few people that have the expertise needed to do my job. Two weeks into my FMLA I found out that during a "reorganization" of the department there was a promotion of a relatively new employee (who I had minimally trained to learn parts of my job) to a position that actually made her my "boss"! I received my masters degree several years before her and have had over ten more years of experience than her yet I was bypassed for the promotion (I believe) due to the fact that I was on FMLA and unavailable to start the job. I was told by coworkers at that time that they were overhearing things being said about me ... that I picked the "wrong time to get pregnant" and that "they needed someone to take over the job right away and it was just bad timing that I was gone", etc. When I further questioned my supervisor, upon my return to part time work this week, I was told that I was the most experienced for the job but because I was not here the job had to go to someone else ... this less experienced person who also happens to be single.

My question is this ... is it allowed for the employer to promote a less qualified person if someone happens to be on FMLA and is unable to start the job until their return? I did get my "old" job back (when I came back part time) but I wasn't given the chance to get this promotion and there are very few promotions once you get to my level of expertise. So my only option at this point is to leave the job if I want to make more money and move into a higher position - unless I wait another several years for another opening. But basically I would not want to stay if I have to work under someone who I know has much less experience than I have.

I met with my supervisor this week and she is willing to possibly create another position that is comparable to the position that was given to this other person (which I still think is unfair since I would only be on a comparable level with her and not higher than her - given my many more years of experience) ... but until the details get worked out (which was not guaranteed and there is no timetable as to when this might happen) I am expected to work in my position with this other person as my "boss".

Can you give me any legal guidance on this? Thanks!

Q: Will I lose my job if I take FMLA leave?

Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. 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. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ("key") employees.

Thanks. I know that I will have my job after my FMLA ... in fact ... I returned to my current job this week on a part-time basis. My question was if it was discriminatory to promote someone way less qualified than I was over me while I was out on FMLA just because I would be unable to perform any duties until I returned from FMLA? Would this be something that I could fight or lodge a legitimate complaint with the EEOC? I have read that FMLA includes discrimination against promotions ... but I haven't seen many legal cases on the web to determine if my situation would be considered unfair. Most of the promotion discrimination cases I have read about are promotions that have been denied prior to giving birth and my situation happened while I was already out on FMLA and unaware about the promotional opportunity until it had already been given to someone else. Thanks...

If someone had been on a non-FMLA leave and the same situation occurred, what would have happened? Would they have gotten the promotion anyway, or would someone else have gotten it?

That's going to be the bottom line issue. It certainly can't hurt for you to run it past the US DOL.

Ok ... thanks for the input.

I was told that had I not been on FMLA I would have been the most qualified to be offered the position ... so it appears that the promotion would not have taken place on a non-FMLA leave unless that person's leave were extended way past a normal vacation break .... since they wanted this transition (i.e. newly created post) to happen quickly.

I guess I will check with the DOL... Thanks.