By Oliver Enquist
In County of Tazewell, an Arbitrator held that a Tazewell County Classification Officer had no contractual right to remain in the Classification Officer position during her leave of absence, covered under the Family Medical Leave Act (FMLA).
Officer Moretto was assigned to the position of Classification Officer at the new Jail in Tazewell County when it opened in November 2003, and had remained in the position uninterruptedly until she went on workers’ compensation leave in August, 2010. While Officer Moretto was still on leave, Jail Superintendent Earl Helm renewed her assignment to the Classification Officer position. However, when Officer Moretto returned to work from leave in May 2011, she was reassigned to Booking. Nonetheless, she was paid the 7.5% Classification Officer premium for the first week after her return. After the first week, the County discontinued the premium and requested a refund of the overpayment from the officer. Officer Moretto filed a grievance claiming that she was entitled to the higher pay pursuant to an oral agreement between her and Superintendent Helm. Mr. Helm testified that he never said anything to Officer Moretto regarding Classification pay while she was on leave.
In the absence of any contractual obligation to retain Officer Moretto in the Classification Officer position for any specific period of time, the Arbitrator held that the County had the right to give the position to another Correctional Officer. The Arbitrator also held that the County could determine that the jail’s needs would better be served by placing Officer Moretto in the new position immediately upon her return from leave rather than placing her in the Classification Officer position for three weeks, and then moving her to booking and intake.
The situation is analogous to that covered in §825.216(a)(3) of the FMLA Regulations which states that “[i]f an employee was hired for a specific term or only to perform work on a discrete project, the employer has no obligation to restore the employee if the employment term or project is over and the employer would not otherwise have continued to employ the employee.”
The Arbitrator denied the grievance after finding no violation of either Section 27.7 of the Agreement or the Family Medical Leave Act.
Editor’s Note [Jim Cline]: This decision is troubling and has real financial implications for disabled Officers who are out on leave and return to find their specialty assignment and premium pay taken away. Careful language drafting in the collective bargaining agreement about the duration of specialty assignments, and specialty assignments for officers on leave, could have certainly helped the Officer in this situation. Another Arbitrator could have arrived at a different result in this case.
