Entrada Lodge, Inc. v. Bureau of Labor & Industries ( 2002 )

ARMSTRONG, J.

Entrada Lodge, Inc., seeks review of an order of the Commissioner of the Bureau of Labor and Industries that determined that Entrada had violated complainant’s right to return to work after she had completed family leave. ORS 659A.171(1).¹ We review for substantial evidence and errors of law, ORS 183.482(8)(a), (c), and reverse and remand.

We relate the facts as found by the commissioner. In January 1998, Entrada’s general manager, Ritchie, hired complainant as a housekeeper. Complainant worked in that capacity for nearly seven months, averaging 23 hours per week during that time. Sometime that spring, complainant told Ritchie that she was pregnant and that she intended to take family leave near the end of her pregnancy. At the end of July, complainant told Entrada that she was beginning her family leave, and Ritchie told her to contact him when she was ready to return to work.

Although she had several more weeks of family leave available, complainant contacted her doctor’s office on September 24 to inquire about returning to work because her family needed her income. After being told that it was all right for her to return to work, she contacted Ritchie and asked him to reinstate her to her housekeeping job at Entrada.

When complainant began her family leave, Entrada employed 10 housekeepers. Seven of those housekeepers quit while complainant was on family leave. Entrada hired three more housekeepers during that time, two of whom, Garfield and Crain, were still working for Entrada when complainant asked to return to work. Garfield and Crain each worked a number of hours for Entrada between September 24 and October 7, but complainant did not. Entrada eventually assigned complainant work on October 10. However, the lack of work at Entrada forced complainant to look for another job. On October 20, she was hired as a housekeeper by another inn.

Complainant filed a complaint with the Bureau of Labor and Industries on October 28 that alleged that Entrada had violated her rights under the Oregon Family Leave Act. Ultimately, after a contested case proceeding, the commissioner issued an amended final order that concluded that Entrada had violated the Act by failing to restore complainant to her prior employment position at the conclusion of her family leave. ORS 659A.171(1). In reaching that conclusion, the commissioner stated that, as a general rule,

“where an ‘eligible’ employee such as Complainant occupies a position involving nonsupervisory, unskilled labor in which the hours worked vary considerably and turnover is high, making it virtually impossible to ‘track’ any one position * * *: (1) Any worker hired during an eligible employee’s leave to perform the same work that the eligible employee performed before commencing leave meets the definition of ‘replacement worker’ under [ORS 659A.171(1)]; and (2) After the eligible employee attempts to return to work, the employer must give that employee the opportunity to work any hours that the replacement worker would have otherwise been scheduled to work.”

The commissioner applied that rule to this case and determined that Garfield and Crain met the definition of “replacement workers” under ORS 659A.171(1). Consequently, once complainant told Ritchie that she was ready to return to work, Entrada was required to give her the opportunity to work any hours that Garfield and Crain were assigned to work. Entrada’s failure to offer complainant that work constituted a failure to restore her to her employment position and, according to the commissioner, constituted an unlawful employment practice.

On review, Entrada essentially argues that the record lacks sufficient evidence to support the commissioner’s finding that Entrada failed to restore complainant to her prior employment position. We cannot resolve that issue, however, because we conclude that the commissioner failed to make the findings that he had to make in order to find a violation of the Act. The commissioner characterized the case as turning on the status of the employees who were hired while complainant was on family leave. That is not the proper focus. As we will explain, the Act requires the commissioner to determine the employment rights, benefits, and position that complainant would have enjoyed had she not taken family leave and to compare them against those that she enjoyed on her return from family leave. Because the commissioner failed to do that, we reverse the case for reconsideration.

The Oregon Family Leave Act requires employers with 25 or more employees to provide up to 12 weeks of unpaid leave to eligible employees under specified circumstances. See ORS 659A.153 - 659A.162. On returning from family leave, an

“employee is entitled to be restored to the position of employment held by the employee when the leave commenced if that position still exists, without regard to whether the employer filled the position with a replacement worker during the period of family leave.”

ORS 659A.171(1). However, the employee is not entitled to

“[a]ny right, benefit or position of employment other than the rights, benefits and position that the employee would have been entitled to had the employee not taken the family leave.”

ORS 659A.171(3)(b).

The Act seeks to ensure that employees suffer no employment disadvantages as a result of taking family leave, other than the loss of income while on leave. The Act also provides, however, that employees are entitled to receive only those employment advantages that they would have enjoyed had they not taken family leave. Consequently, the determination whether an employer has violated the reinstatement right of an employee under the Act requires a determination of the employment advantages that the employee would have enjoyed with the employer if she had not taken family leave. Those advantages must then be compared with the advantages that the employee actually enjoyed on her return to employment. If the employment advantages enjoyed by the employee on her return fall short of those that she would have enjoyed had she not taken family leave, then the employer has failed to restore the employee to her employment position as required by the Act.

Given that framework, we turn to the commissioner’s order. In his order, the commissioner stated a rule that is intended to apply to all employees who occupy “a position involving nonsupervisory, unskilled labor in which the hours worked vary considerably and turnover is high.” Under that rule, any worker hired while an employee is on family leave is deemed to be a “replacement worker” and, once the employee on family leave attempts to return to work, the returning employee is entitled to work any hours otherwise scheduled for the replacement worker.

There are two problems with that rule. First, it fails to address the determinative issue under the Act, which is whether the employer restored the employee to her employment position by giving her the rights, benefits, and position that she would have enjoyed had she not taken family leave. The clause in ORS 659A.171G) that gives an employee the right to return to her prior position “without regard to whether the employer [has] filled the position with a replacement worker” is intended to make clear that the employment of replacement workers does not detract from an employee’s right to return to work from family leave. That is an important principle in the balance that the legislature struck between the employee’s need to take family leave and the employer’s need to get work done while employees are on leave. However, the clause serves solely to preserve the reinstatement right that the Act establishes. It does not create a right that employees enjoy that is distinct from their reinstatement right.

Second, the rule could give employees greater employment rights and benefits on their return to work than they would have enjoyed had they not taken family leave. Under it, an employee who returns to work from family leave to an unskilled, nonsupervisory position of the type filled by claimant is entitled to work the hours assigned to any employee who does equivalent work who was hired while the returning employee was on family leave. That does not present a problem if the employment rights that the employee would have enjoyed had the employee not taken family leave include the right to be assigned work ahead of later-hired or junior employees. If, however, the employee would not have had that right, then giving it to her would be inconsistent with ORS 659A.171(3)(b), which provides that a returning employee is not entitled to any right, benefit, or position other than those to which “the employee would have been entitled [had] the employee not taken the family leave.”² That problem is addressed by discarding the rule and focusing, instead, on the comparison that the Act requires between the rights, benefits, and position that complainant would have enjoyed had she not taken family leave and those that she enjoyed on her return from family leave. That is the focus to which the commissioner must turn on remand.

Reversed and remanded for reconsideration.

1 When the commissioner issued the amended order in this case, the statutes comprising the Oregon Family Leave Act were codified in ORS chapter 659. See ORS 659.470 - 659.494 (1999). The legislature renumbered those statutes in 2001, placing them in ORS chapter 659A, but did not alter the text that is at issue in this case. Compare id. with ORS 659A.150 - 659A.186. For convenience, we refer to the current version of the statutes throughout the opinion.

2 We need not resolve whether an employer’s informal practice or policy of assigning work to earlier-hired or senior employees can be a right or benefit or represent an aspect of the position to which a returning employee would be entitled under the Act. That issue is not before us, so we express no opinion about it.