Because, as discussed by the Western District of Michigan in this case, there is a split between the circuits, it is possible that this could eventually end up in the U.S. Supreme Court. My standard line in these situations is that I do not make predictions about what the U.S. Supreme Court does in such situations. Nevertheless, the question remains how a complainant or employer manages the situation in the meantime. First, if you are in the second circle, a choice of recourse regime may be allowed. In the seventh circuit, this is not the case. In the sixth circle, as discussed in Trayling, the choice of remedies is probably not allowed. Preventively, it appears that a union and an employer, when negotiating a collective agreement, want to refrain from choosing the remediation clause in their final contract, unless they wish to invite guaranteed litigation on the clause. I also believe that a choice of the remediation clause could be used to encourage the union not to make a strong commitment to the union, especially since they know that there is a good possibility that their efforts are not necessary in the long term (not to say that this would actually happen, but I am saying that an argument as such could be advanced). In short, it is probably useful, as a preventive issue, not to have a corrective clause in the final collective agreement. Job Retention: The FMLA is clear that when an employee takes protected leave, he or she must be reinstated in the same or equivalent position upon return. What happens if your job is subject to a collective agreement that only allows “voluntary” transfers, contains “bumping” rights, or has seniority provisions? On the one hand, FMLA regulations stipulate that “the conditions of a temporary transfer must not violate an applicable collective agreement with higher standards.” Unfortunately, the exact meaning of this language is not clear and there does not appear to be any case law that gives any direction.
It appears, however, that if most or part of your staff is under the control of a CBA, an argument may be made that the returning worker may not be entitled to a transfer or reassignment to which he or she may be entitled under the FMLA. (Note that this scenario would only occur if you are unable to restore an employee to the position they held prior to the fmLA vacation. Employers must keep work open.) When negotiating a collective agreement, savvy employers insist that procedures be taken to deal with appropriate arrangements.