Court: FMLA Job Protection not Absolute

August 28, 2006 ( - A federal appellate court has ruled that the Family and Medical Leave Act (FMLA) does not provide an employee on approved leave with an absolute right to be rehired for his old position.

The 4 th US Circuit Court of Appeals also ruled in the case involving Edward Yashenko that a private employer that contracts with an Indian tribe is not subject to being sued for race discrimination when it enforces a contractual tribal preference policy.

In issuing those rulings in a decision written by Circuit Judge Diana Gribbon Motz, the appellate panel upheld a lower court ruling by US District Judge Lacy Thornburg of the US District Court for the Western District of North Carolina.

According to the ruling, Yashenko had a serious heart condition that required surgeries and repeated lengthy absences, all approved by his employer as qualifying under FMLA.

In 1996, Harrah’s North Carolina Casino Co . reached an agreement with the Eastern Band of Cherokee Indians to govern a casino in Cherokee, North Carolina . Basically, the tribe would own the casino and Harrah’s would manage it, according to the background. Yashenko was transferred to North Carolina, promoted to employee relations manager, and eventually became a leased employee of the tribe.

Motz wrote that Yashenko had to have more surgery and other treatment by late 2000.   In the 30 months from December 2000 through July 2003, in fact, he was granted five FMLA leaves totaling 57 weeks. During his final leave, his job and a number of others were consolidated into fewer positions.

Yashenko turned down an offer to compete for one of the positions, citing his health problems. Then he sued Harrah’s, claiming an absolute right to his old job when he returned from leave, a claim turned down by   Thornburg.

Appellate judges said in the latest ruling, following an interpretive regulation from the Department of Labor, circuit courts that have considered the issue have all ruled that an employee on FMLA leave can be discharged if he or she would have been fired or laid off anyway.

Yashenko also argued that the Cherokees’ policy of preferring tribal members for hiring and promotion interfered with his rights. Regarding that claim the court declared that he has to sue the tribe rather than Harrah’s. However, Yashenko can not sue the tribe because of its sovereignty.

The case is Yashenko v. Harrah’s North Carolina Casino Co.,   U.S. Court of Appeals for the 4th Circuit, No. 05-1256 (4/27/06). The opinion is here .