In YASHENKO v. HARRAH'S NC CASINO CO., No. 05-1256, 4th Cir. (April 27, 2006) the Fourth Circuit decided today that an employee has no absolute right to reinstatement upon return from FMLA-qualified leave. The plaintiff claimed that Harrah's interfered with the exercise of his FMLA rights when, after he took his most recent leave, it refused to restore him to his previous employment position. Yashenko argued that a section of the Act granted him "an absolute entitlement to restoration."
Not so the Fourth Circuit held stating that the right to reinstatement is limited. Specifically, an employer can avoid liability under the FMLA if it can prove that it "would not have retained an employee had the employee not been on FMLA leave." Harrah's did just that -- entitling it to summary judgment.