Return-to-Work Retaliation Attorney

Under FMLA and CFRA, you are entitled to be restored to the same position you held before leave, or to an equivalent position with equivalent pay, benefits, and working conditions. The position must have equivalent status, authority, and responsibilities. An employer cannot use your absence as a reason to restructure you out of your role. Failure to reinstate is a separate violation from retaliation.

An employer can eliminate a position during an employee's leave only if the elimination would have occurred regardless of the leave — for example, a company-wide restructuring affecting multiple positions. The employer bears the burden of proving the decision was unrelated to the leave. If your specific position was eliminated while you were the only person on leave, this raises a strong inference of retaliation.

This violates FMLA/CFRA reinstatement rights. An equivalent position must have the same pay, benefits, working conditions, and substantially similar duties, responsibilities, status, and authority. A demotion, pay cut, less favorable schedule, or reduced responsibilities upon return from leave is actionable as both interference and retaliation. Document all differences between your pre-leave and post-leave position.

Key evidence includes: the timing between your return and adverse action, your performance record before leave versus after, comparator evidence of employees who did not take leave, statements by managers about your leave, and any changes to your position while you were away. A pattern of negative treatment beginning immediately upon return is strong circumstantial evidence of retaliation.