Dive Brief:

• Although Deloitte advertises 16 weeks of parental leave for its employees, the program "comes with a huge catch," according to a recently filed lawsuit. "[A]ny individual who actually takes the 16 weeks of leave offered to them by Deloitte loses the right to actually return to their prior position," according to a lawsuit filed Sept. 1 in a New York federal court (Knight v. Deloitte Touche Tohmatsu Ltd., No. 1:20-cv-07114 (S.D.N.Y., Sept. 1, 2020).
• Saxon Knight said that following her return from leave in late 2019, she discovered that "not only would she not be returning to her prior position, but that Deloitte had no position for her at all." She alleged in the complaint that she was told there was no requirement to return her to her job because the Family and Medical Leave Act (FMLA) only provides 12 weeks of job-protected leave. Knight said she was told her role with the global professional services company might have been better protected had she returned from leave after the 12 weeks of FMLA leave instead of taking the additional time offered by Deloitte.
• In addition to seeking class action status, Knight alleged interference and retaliation under the FMLA and several violations of New York state and New York City law. Knight also will file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) claiming violation of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act, according to the complaint. Deloitte did not respond to a request for comment.

Dive Insight:

The FMLA provides employees up to 12 weeks of unpaid, job-protected leave over 12 months for the placement or birth of a child, among other reasons. Private employers with 50 or more employees as well as public agencies and schools, regardless of the number of employees, must comply with the federal law.

"Job-protected" leave means that once the employee comes back to work, the employer will need to return the worker to the same position or an equivalent one. Equivalent means the job is virtually identical to the original job in terms of benefits, pay and other terms and conditions of employment such as shift and location, according to a U.S. Department of Labor FMLA fact sheet.

Still, that protection is not absolute and a worker’s employment can be terminated under certain circumstances such as misconduct or fraud. For example, in 2018 the 10th U.S. Circuit Court of Appeals held that an employee on FMLA leave wasn't immune from discipline for misconduct discovered during his leave. Likewise, a California federal court ruled in 2019 that the employer was justified in firing an employee who took FMLA leave and then appeared in a co-worker's Facebook live video of a fishing trip on one of the days he was out of the office.