What happened. As a utility driver for Compass Group USA, Inc., Susan Hendricks earned $12.23 per hour. In this capacity, she performed maintenance duties and traveled to businesses to fill, repair, and clean vending machines.

While working on June 2, 2003, she sustained an injury to a rotator cuff. She applied for workers' compensation benefits and returned to work on light duty after 1 week. Two months later, she applied for leave under the Family and Medical Leave Act (FMLA), although it is not clear whether she actually took FMLA leave.

Since the injury prevented Hendricks from resuming her utility driver duties, she performed office work instead, working 25 hours per week and earning $9 per hour.

Hendricks had surgery on her shoulder in late July and returned to work 3 days later, requesting light duty work. Her doctors had placed physical restrictions on her: no lifting more than 10 pounds, no lifting above the shoulder, and no repetitive lifting. She continued on light duty until March 2004, when she stopped working for Compass Group.

She filed suit, saying that the company owed her the $3.23 per hour pay differential because she should have continued receiving the same hourly pay while on light duty--under the FMLA and a collective bargaining agreement (CBA).

A district court granted summary judgment to the company, saying that FMLA leave is unpaid and that the CBA did not specify that she was entitled to the pay differential. Hendricks appealed to the U.S. Court of Appeals for the 7th Circuit, which covers Illinois, Indiana, and Wisconsin.

What the court said. The appeals court affirmed the decision, saying that "light duty" is covered by workers' compensation--not FMLA. "There is no such thing as 'FMLA light duty,'" the court said.

In addition, "the FMLA does not require an employer to pay a certain pay rate while the employee is on leave; the FMLA only requires that an employer permit an employee to take up to 12 weeks of unpaid leave for illness and return to his prior post or an equivalent position," the court said, noting that the employee must be physically able to perform the related functions and duties.

"Even if Hendricks took FMLA leave (and it is not clear whether or not she did)," the court said, "Hendricks was unable to physically perform the duties of a utility driver, and thus she was not entitled to return to the same or equivalent position."

In arguing that she should be able to recover wages under the CBA, Hendricks pointed to the following CBA provision: "Employees who work on a temporary basis in a lower paid classification shall retain their regular rate."

The court said the CBA claim failed because Hendricks did not show that light duty is a classification under the CBA or that her light-duty assignment was temporary. Following her injury, "[s]he never again worked as a utility driver, and she did not present evidence that she planned or was able to return to such a position" Hendricks v. Compass Group, USA, Inc., No. 06-3637, U.S. Court of Appeals, 7th Cir., (8/6/07).

The Law

The Family and Medical Leave Act (FMLA) requires covered employers to provide up to 12 weeks of unpaid family and medical leave to eligible employees. Employers covered by FMLA, and a state law must take steps to ensure that employees receive the full benefit of both.

FMLA affects private employers with 50 or more employees for each working day during each of 20 or more weeks in the current or preceding year. All public employers are covered, regardless of size.

With some exceptions, the law requires that employers provide each returning employee with the same position or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

What to Remember

Know your rights. "The FMLA does not provide for paid leave nor does it dictate the wage rate for an employee to receive while on light duty under a workers' compensation plan," the court said.

Put it in writing. Clearly state what stipulations apply regarding an injured worker's compensation. In this case, the court said Hendricks was not entitled to a pay differential under the CBA because her light-duty assignment was not "temporary" and "light duty" was not identified as a classification in the CBA.

Document reasons for light-duty assignments. Upon returning to work after her injury, Hendricks was unable to perform the functions and duties of her job. After surgery, she requested light duty, since her doctors had identified certain physical restrictions.