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Fourth Circuit Clarifies FMLA’s “Equivalent Position”

Gary Waag worked for government contractor Sotera Defense Solutions, Inc. He was the program manager for the NextGen project, a position that primarily required marketing and business development. After sustaining a severe hand injury, he took FMLA leave. While he was gone, Sotera appointed someone else to work as program manager for NextGen. When Mr. Waag returned, he was placed on a new project. However, as it turned out, the government reduced its contracts with Sotera and Mr. Waag’s new project was cut. He was fired as a part of a reduction in force. The individual who was in Mr. Waag’s pre-FMLA job was not terminated.

Mr. Waag sued for interference with FMLA rights, asserting that a) he was not given his old job back; b) his new job was not “equivalent”; and c) he claimed that the new job was a pretext for ensuring that he could be laid off.

The Fourth Circuit dismissed Mr. Waag’s claims in their entirety. In support of its decision, the circuit court looked at the language of FMLA. The language does not suggest a legal preference for the original job versus an equivalent one. Mr. Waag’s new job was held to be “equivalent” because he received the same salary, was still eligible for bonuses, had the same health benefits, the same work location, the same job title, the same supervisor and the same primary job duty to develop business. According to the court “no reasonable fact-finder could conclude that Sotera failed to place Waag in an ‘equivalent position’ or that the difference between the two jobs was more than merely de minimus.” Mr. Waag also lacked any support for his assertion that the job placement was a sham.