Susan Hendricks worked for Compass Group, USA, Inc., as a utility driver for Canteen Vending. In her position, Hendricks earned $12.23 per hour. Her duties included traveling to businesses where Compass Group’s vending machines were located to fill, repair, and clean those machines. On June 2, 2003, Hendricks injured her rotater cuff while on the job. Following her injury, Hendricks made an application for workers’ compensation benefits. At the time, she did not apply to take leave pursuant to the Family and Medical Leave Act (“FMLA”). She later applied for FMLA leave on September 3, 2003. Hendricks elected to not take FMLA leave right after her injury but to return to her work in a light duty capacity under her workers’ compensation program.


One week following her injury, Hendricks returned to work in a light duty capcacity. On light duty, she performed office work for 25 hours per week at the rate of $9.00 per hour. Hendricks underwent shoulder surgery on July 28, 2003. Three days following her surgery, she requested to return to work on light duty. Her doctors placed the following restrictions on her: no lifting over ten pounds, no lifting above her shoulder, and no repetitive lifting. Hendricks remained at work on a light duty capacity until the end of her employment with Compass Group in March 2004.

After her employment ended, Hendricks filed suit in order to recover the pay differential that she had lost while working on light duty. In her suit, she claimed that while on light duty she was entitled to receive the pay rate she had received as a utility driver under the FMLA. The district court granted Compass Group’s motion for summary judgment finding that FMLA leave is unpaid leave.

On appeal, the Seventh Circuit Court of Appeals began its review of the lower court’s decision with a brief overview of the FMLA. Under the FMLA, a qualified employee is guaranteed 12 weeks of unpaid medical leave each year. An employee on FMLA leave may receive compensation during the period of the leave through sick or vacation leave or through worker’s compensation. The employer may require the employee to use sick or vacation leave concurrently with the FMLA leave, but may not require this if the employee is receiving pay through worker’s compensation. A worker’s compensation absence and FMLA leave may run concurrently as well. If an employee is certified to perform light duty work through her worker’s compensation program, the employee may choose between performing the light duty work or staying on FMLA leave. If the employee elects to remain on FMLA leave, she may no longer be eligible to collect payment under the worker’s compensation program. If an employee accepts a light duty assignment while recovering from a serious health condition, she has the right to be restored to her original or an equivalent position until 12 weeks of, what would have been, FMLA leave have passed within a 12 month period.

If the employee is unable to perform an essential function of her original position (after returning from FMLA leave) because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. If there is an employment benefit program that provides an employee leave rights greater than that afforded by the FMLA, the employer “ must observe” such a program.

Hendricks attempted to classify her light duty work as “FMLA light duty” and argues that she was entitled to be paid her full rate of $12.23 while on light duty. Citing C.F.R. § 825.220(d), Hendricks substituted light duty work for FMLA traditional leave time. On appeal, she acknowledged that there are no statutes or regulations that directly support her conclusion, but contends that her position is “ in line with 29 U.S.C. §§ 2612(a)(1), 2614(a)(1), guaranteeing placement in an equivalent position upon her return from FMLA leave.”

Contrary to Hendricks’ argument, there is no such thing as “FMLA light duty.” The FMLA statute only mentions “light duty” as a component of a worker’s compensation program. The FMLA does not prescribe a rate of pay for “FMLA light duty” work as none exists in the statute or regulations. As the Seventh Circuit stated, “While an employee may receive payment through workers’ compensation benefits while on FMLA leave and an employer may not require an employee to use paid leave time while receiving workers’ compensation, see 29 C.F.R. § 825.207(d), 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 twelve weeks of unpaid leave for illness and return to his prior post or an equivalent position.”

Hendricks also misunderstood the FMLA statute to a greater degree. The FMLA requires that an employee be returned to the same or equivalent position and pay rate that she held prior to going on FMLA leave if the employee is able to perform the functions and duties of that position. The FMLA does not require the employee receive the same rate of pay while on leave or while performing light duty work as a result of a serious health condition.

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