* The Honorable Patri ck J. Duggan, United St at es Dist ric t Ju dge f or the Eastern Distri ct of Michigan, sit ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0242P (6th C ir.) File Name: 04a02 42p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
D OREEN R ICCO ,

Plaintiff- Appellant

,

v.

J OHN E. P OTTER , Postmaster General, et al., Defenda nts-Appe llees. X - - - -
> , - - - - N No. 03-3294

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 02-00496—Donald C. Nugent, District Judge.

Argued: April 23, 2004 Decided and Filed: July 27, 2004

Befor e: MERRI TT and MO ORE, Circ uit Judges ; DUGGAN, District Judge. * 2 Ricco v. Potter, e t al. No. 03-3294

_________________ COUNSEL

ARG UED: Jonathan T. Hyman, REMI NGER & REMINGER

CO., Cleveland, Ohio, fo r A ppellant . Annette G. Butler, ASSISTANT UNI TED STATES ATTORNE Y , Cleveland, Ohio, for Appellees. ON BR IEF: Jonathan T. Hyman, Richa rd C . Haber, REMINGER & REMINGER CO., Clev eland, Ohio, for Appellant. Annette G. Butler
, ASSIST AN T UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee s. MOORE, J., deliver

ed th e opinio n of the court, in which DUGGAN, D. J., joined. MERRITT, J. (pp. 1 4-15), delivered a separate concurring

opinion.

_________________ OPINION

_________________ KA REN NELSON MOORE, Circuit Judge. This appeal fromthe dismissal of a claim under the Family an d Medical Lea ve A ct of 1993 (“FMLA” ) raises an important issue of statutory co ns tr uc ti on . S pe ci fi ca ll y, this appeal require s us to interpretthe phrase “hours of service” as it is used in the FMLA. We hold that make-whole relief awa rded to an unlawfully terminated e

mployee may

include credit towards the hours-of-service requirement containe d in t he F MLA’s definition of “eligible employ ee.”

Plai n tiff-Ap

pellant, Doreen Ricco (“Ricco”), appea ls the d istri ct court’s dismissal u

nder Fe deral Rul e of Civil Procedure 12(b)(6) of her claim pur sua nt to th e FM LA agains ther former employ er , Defendant-Appellee, John E. Potter, Postmaster General (“Postmaster”). On appeal, Ricco argues that the district court erred by adopting the reasoning of Plumley v. Southern Container, Inc. , 303 F.3d 364, 367No. 03-3294 Ricco v. Potter, e t al. 3

1 Bec ause this is an appeal from the distri ct court’s judgment granting the Postmas ter ’s moti on to dis miss under Rule 12(b)(6), we recite t he facts as the y are rec ounte d in R icco’s a men ded com plaint. (1st Cir. 2002) , in

which the

First Cir cuit held that the hours

of-service requirement

contained

in the FMLA’s definition of “eligi ble employee”

includes only hours duri ng whi ch an employee performed actual work, not hours for which a n employee was comp ensated

pursuant to anarbitration award. Ricco further argues on appea l that the districtcourtdid not adequa tely balance the competing

interests of employers and employees

and cre ated an i

ncentive for emplo

ye rs unlawf ully to terminat

e employees

to prevent employee s from satisfying the hours -of-se

rvice r equirement.

For the following reaso ns, we REVERSE the district court’s judgmen

t grant ing the Po stmaster ’s motion to dismiss under Rule 12(b)(6) and REM AND this case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Fac tual Backgr ound

InJu ly 1 993, the United States Postal Service (“Postal Se rvice”) hired Ric co to wor k at its g eneral

mail fac ility

in Cleveland, Ohio. 1 In December 1997, the P ostal Service issued Ricco “a notice of removal , effectively

terminating her employment.”

Joint Appe n dix (“J.A.”) at 26 (Am. Compl. ¶ 7). Ricco

timely grieve d her De cember

1997 term

in atio n and ultimately

procee ded to an arbitration hearing on January 19, 1999. In a Februa

ry 8, 1999 awa

rd, the arbitrator

ordered t hat Ricco’s termination be converted to a thirty -work-day suspension and that Ricco “be rei nstat ed sub ject t o pass ing a fitness- for-dut

y examination and

be made whole.” J.A. at 26 (Am. Compl. ¶¶ 9 , 1 0). Subsequently, Ricco “pa ssed the fitness- for[-]duty

examination and was returned to work wi

th 4 Ricco v. Potter, e t al. No. 03-3294

2 To be an “eligibl e employee” under the Family and Med ical Leave Act of 1993 (“FMLA”) an employee mus t have wor ked for her

employer forat least

twelve months and must have completed “at l east 1,250 hours of service with such employ er dur ing the pervi ous 12- month peri od.” 29 U.S.C. § 261 1(2)(A).

3 In her amended complai nt, Ricco avers that her Dec ember 1 997 termination was “un lawful.” B ecau se this is an a ppe al from th e di stri ct

cou rt’s judgment granting t he Po stmaste r’s mo tion to dismiss unde r Rule 12(b)(6), we must a ssume t hat t he arbit rator di d, in f

act, determi ne that Ricc o’s D ecem ber 1 997 termina tion wa s unlaw ful. full credit for years of service for seniority and pensi on purposes.” J.A. at 26-27 (Am. Compl. ¶ 10).

After Ricco returned to work, from May through July 1999, she suffered from depression and migra ines after the death of her hu sba nd, and consequently she required intermittent leaves of absence. Due to this serious health condition, Ricco requested FMLA leav e in early

May 1999. Acc ording t

o Ricco, the Postal Service denied her req ues t fo r FM LA leave because it concluded

that she had not

met the hours-of-service require ment. 2 Ricco alleges that she “had not ‘worked’ 1250 hours in the preced

ing 12 mon

ths solely because she had been unlawfu lly terminated in December

1997 and i

nviolation of the Collective Bargaining Ag reement.” 3 J.A. at 27 (Am. Compl. ¶ 15). Ricco further alleges tha t t he Postal Service has previous ly r

ecogn ized “th at ‘[w ]hen an[] emp loy ee is awarded back pay , accom

pa nied by equitable re

medies (i.e. full back pay

with seniority and benef

its, or a ‘mak e whole’ remedy), the hours

the employe e would ha

ve worke d if

no t for the action which resulted in the back pay per iod, are counted as work hours for the 12 50 work ho ur elig ibility requirement

under the Family

Medical Leave

Act (FMLA).’” J.A. at 29 (Am. Compl. ¶ 27).

OnOctober 15, 1999, the Postal Service issued Ricco another no tice of removal “due to a failure to maintain a regular work schedule.” J.A. at 27 (Am. Compl. ¶ 14). RiccoNo. 03-3294 Ricco v. Potter, e t al. 5

timely grieved her O ctobe r 1999 termination and proceeded to anot her arbitration hearing. I n a November 19, 20 0 1 award, the arbi

trator affirmed

Ricco’s d ismissal “ on the bas is that [Ricco] was absent from work [and furthe r] s tated that ‘this is not the proper forum to litigate any alleged violations of the FMLA’ and

therefore refused to consider whe ther the FMLA had

been v iolated.” J.A. at 28 (Am. Compl. ¶ 19). Thereafter, Ric co comme nced this action in federa l court. B. Procedural Background and Jurisdiction

OnMarch 14, 2002, Ricco filed a two-count complaint in the district court alleging that the Postmaster termin ated her inviolation of the F MLA and Ohio public policy . On September

6, 2002, Ric co filed

a motion to

di sm is s C oun t II of her complaint, which asserte d a claim b ased upon Ohio public po li cy, because

that clai m had bee n forec losed by

Ohio Supreme Courtprecedent. At a status conference on October 2, 2002, the Postmaster r a ised the potential applicability of the Plumley

decision, and the parties agreed tha t Ricco would fil e an amended complaint supplementing her factua l allegations and

that the Po stmaster

would then file a motion to dismiss. Ricco filed her first amended complaint on October 17, 2002, a

nd there after the Postm aster f iled his motion to dismiss on Oct ober 21, 2002. The district court granted the Post mas ter’s motion to dismiss on February 7, 2003. Ricc o filed a

timely notice of appeal.

The district c ourt had j urisdicti on pursua nt to 28 U.S. C. § 1331, as Ricco’s FMLA cla im presented a

federal question. This court ha s jurisdiction over th e appea l pursuan

t to 28 U.S.C. § 1291.

II. ANALY SIS

A. Standar d of Review and S tatute o f Limitat ions

We review de novo a

district c ourt’s dismissal unde r Rule 12(b)(6). Marks v. Newcourt Cred it Group, Inc. , 342 F.3d 6 Ricco v. Potter, e t al. No. 03-3294

444, 451 (6th Cir. 2003). “In deciding whether to grant a Rule 12(b)(6) motion, we ‘must construe the complaint in the light most favorable to the plaintiff, accept a ll factual
a llegat ions [of the plaintiff] as true, and determine whether the plaintiff

undoubtedly can prove

no set of facts in support of his claims

that would

entitle hi m to relief.’” Id . at 451-52 (quoting Allard v. Weitzman (In re DeLorean Motor Co.) , 991 F.2d 1236, 1240 (6th Cir. 1993)). Moreover, a Rule 12(b)(6) “motion should not be granted ‘unless it appe ars bey ond doubtthat the plaintiff can prove no set of facts in support of his claim which w o uld entitle him to relief.’” Id . at 425 (quoting Cameron v

. Seitz , 38 F.3d 26 4, 270 (6th Cir. 1994) (quotationomitte d)). The Postmaster points out that he timely raised in his ans wer as an affirmative defense the expiration of the FMLA’stwo-year statute of limitations, but that the distr ict cour t did not rul e upon this issue in its opinion. T

he FML A provide s: (1) In ge neral Except as provided in paragraph (2), a n action may

b e brought under this section not later than 2 years a fter the date of the last event

constituting the alleged

violation for which the action is brought. (2) Willful violation

In the caseof such action brought for a willful violation of section 2615 of

this title, such action may be brought within 3 years of

the date of t he last event constituting the alleged violat

ion for wh

ich such a ction is br ought.

29 U.S.C. § 2617(c). The Postal Service terminated Ricco, allege dly in violation of

the FMLA, on October

15, 1999, and Ri cco filed he

r compla int appro ximately

two and one-half years later. Therefore, Ricco’s FML A claim is time-barred unless she proves that the Postmaster’s violation was willful.No. 03-3294 Ricco v. Potter, e t al. 7

Ricco, in both her initial complaint and her first amended complain t, averred that

the Postmaster and the Postal Service acted negligently , willfully, and maliciously when they violated her rig hts under the FML A. An empl oye

r commits
a willful viol ation of the FMLA when it act s wit h know ledge that its co nduct is prohibit

ed by the FML A or with r

eckless dis reg ard of the FMLA’s re quirements; therefore, the determination

of willfu lness invo lves a

factual question. See Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 12 5- 130 (1985) (defining the standard for a willful violation of the Age Discrimination in Em ploy ment Act) ; Hill

str om v. Bes t West ern TLC Hotel
, 354 F.3d 2 7, 33 (1st Cir. 2003) ; see also Wi lliams v. Schuller Int’l, Inc. , No. 00-3614, 2002 W L 193929, at *3 (6th Cir. Feb. 5, 2002 ) (app lying Thurston ’s standard of willfulne s s to claims brought under the FML A). Becau se a plaintif

f’s factual alle gations

must be taken as true f orpurp oses of de ciding a Rule 12(b )(6) moti on to dismiss
, a plaintiff may withst and such a motion merely by having alleged that the FMLA viol ati on was willful. See Caucci v. Prison Health Servs., Inc.
, 153 F. Supp. 2d 605, 608-09 (E.D. Pa. 2001). B. Statutory Interpretation

Onappeal, Ricco contend s that the district court erred by adopting the rea so ning in Plumley , argu ing that the Firs t Circuit erroneously c onclud ed t hat the hours-of-service requirement

containe d in the FMLA’s definition of “eli gible employee”

means only hours that an e mployee perf

o rm ed
ac tual work, not hours for which an employ ee wa s compensated

pursuant to an arbitration award. I n Plumle y , the First Circuit looked, as directe d by the FML A, to the Fair Labor Standards Ac t o f 1938 (“FLSA”) for guidance regarding the proper interpretation of the ho ur s-of-service requirement. Plumley , 303 F.3d at 369-72.

Ricco points out, however, that neither the FMLA nor the FLSA define the term “hours of service” and argues that neither the FLSA nor its applicable re gulations support the 8 Ricco v. Potter, e t al. No. 03-3294

interpretation

of the hours-of-servicerequirement adopted in Plumley

. Ricco argues that the FL SA merely def ines “regular rate,” and that although the definition of “r egu lar rate” excl udes pa yme

nt for oc casiona

l periods where no work is performed

due to certain

causes, unlawfu

l termina tion should notbe so excluded. Because the FML A an d FLSA do not define the term “

hours of s ervice ,” Ricco

urges t his court to defi ne th e term to i

nclude those hours

that an e mploy ee is deemed to have worked

pu rsuant to a make-whole award issued by a n arbitrator in order to effectuate the F MLA’s pu rposeof “balanc[ing] the demands of the workplace wi t h th e needs of the family,” a nd to discourage employ

ers from unlaw ful ly

terminating employe es to prevent them from meeting the hours-of-service requirement. Appellant’s Br. at 17.

Inresponse, the Po st mas ter arg ues th at t oge th er t he F MLA and the FL SA adequately

define the term “hours of service.” Th e Postmaster asserts that the legislative history of the FMLA, the pertinent provisions of the FLSA, a nd Supreme Courtpre ced ent in ter pre ti ng t he F LS A al l indicate that the hours-of-service requirement does not includ e time for which
anemployee wa s paid but did notwor k or time spent on unpaid leave. The Postmaster further asserts that interpreting the term “hours of service” t o include those hours that an employee is deemed to have worked p ursuant to a makewholeaward issued by

an arbitrator w ould u ndermine the FMLA’s purpose of

allowing “employ

ees to take reasonab le leave . . . in a ma

nner tha t accommo dates the

legitima te interests of the employe

r.” Appellee’s Br. at 12.

The FMLA entitles eligible employ ees to twelve weeks of unpaid leave during any

twel ve-mo nth perio d for ce rtain statutori ly prescribed reasons. 29 U.S.C. § 2612(a)(1). The FMLA defines the term “ eligible

employ ee” as: an employee

who has been employ

ed —No. 03-3294 Ricco v. Potter, e t al. 9

4 The deter minatio n of w het her an emp loyee m eets the F M LA’s eligibility requir ements i s made in r eferen ce t o t he date t he employee

commences his or her leave, not the day the employer t ake s an adve rse acti on against th e em ploye e. Butler v. Ow ens-B rock wa y Pla stic Pro ds., Inc. , 199 F.3d 31 4, 316 (6th Cir. 1999).

5 Under th e FLSA, an e mplo yee mu st be com pens ate d fo r ov ert ime work at a rate “n ot less th an one an d one-hal f ti mes the r egular rate a t which he is employed.” 29 U.S.C. § 207(a)(1). (i) for at least 12 months by the employ er with respect to whomleave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employ er during the previous 12-month period.

29 U.S.C. § 2611(2)(A). 4 The FMLA does not define the term“hours of

service ”; howev er, it doe s sp ecify : “For purposes of deter

mining whether a

n emp loy ee meets the hours of service requirement specified in subp ara graph (A)(ii), the legal standards established under section 207 of thi s title shall apply.” Id . at (2)( C). The a pplicabl e regulations explain, “The determin ing fac tor is the number of hours an employee

has worked for t

he empl oyer within the meaning of the FL SA.” 29 C.F.R. § 825.110.

Section7 of the FLSA does not define the term“ hours of service,” but it does provide in its definition of “regular rate” standards for determining the rat e at whic h employ ees must be compensated

for engaging

in overtime work. 5 FLSA, ch. 676, § 52 Stat 1060 (1938) (codified as 29 U.S.C. § 207) (“§ 207”). The FLSA spec ifies that an empl oyee’s “regular rate” of compensation

does not include, among o ther thing s, (2) pa ym ent s made for occasional periods when no work is performed due

to vacation, holiday

, illness, failure of the em

ployer to pro vide suff

ic i ent work,

or other simi lar cause ; reasonable pay ments fo r 10 Ricco v. Potter, e t al. No. 03-3294

travelingexpense s, or other expenses, incurred by an employee in the furtherance of

his employer’s interestsand properly

reimbursable by the

employ er ; and other simi lar p ayments to an employee which

arenot made a

s com pensation for his hours of employment [.]

29 U.S.C. § 2 07(e) (emphas es added ). The a

pplicabl e regulations explain:

This provision of sect ion 7(e)(2) deals with the ty pe of absences which ar

e in frequ ent or sporadic or unpredictable. It ha s no rela tion t o regu

lar “ab sences” suchas lunchperiods nor to regularly

scheduled day s of rest. . . .

. . .

. . . The term “other simila r cause ” refe

rs to pay ments made for periods of absence due to fa ctors like holiday s, vacations, sickness , and fai lure of the employ er to provide work . Ex amples of “similar causes” are absences due to jury service , reporting to a draft board, attending a funeral of a family member, inability to reac

h the workpla

ce beca use of we ather c ondit io ns. Only absences of a nonroutine character which a re infrequent
or sporadic or unpredictable are included in the “other si mi la r c au se ” c at eg or y. 29 C.F.R. § 778.218(b), (d).

In Plumley , the First Circuit con clude d that these statutes and regulations indicate that the hours-of-service requirement includes only hours that the employ ee actually

worked, not hours for which an employe e was compensated pursuant to an arbi trationaward. 303 F.3d a t 370-73. N o other c ircuit h a s addressed this issue.No. 03-3294 Ricco v. Potter, e t al. 11

It is true tha

t neit h er the FMLA nor the

FLSA defines the te rm“hours of

service ,” but the

FMLA specifie s that a n employee’s

“hours of service”are to be calculated accor ding to the stand ards co ntained in § 207. Examination of § 207 lea ds to the conclusion that the only plausibly applica bl e standards are those contained in the definition of the term “regular rate.” In re sp onse t o public comment, the Department

of Labor stated that the leg islative history

of the FMLA indicate s th at “the minimum hours of service requirement is meant

to be construed in a manner consistent with the legal principles established for determining hours of work for payme

nt of overtime compensation.” Summary of Comments, 60 Fed. R

eg. 218 6 (Januar

y 6, 1995). I

t is also true, however, that § 207 limits additional unenumerated exclusions from the determination of an employ ee’s “regular rate” to “other

similar causes,” and that time that an employ ee does not work due to vacation or illnes s is conce ptually dissimilar from time

that an e mplo yee do es not wor

k due to unlawful termination.

We conclude that time that an employee would have worked but for he

r unla wful te rmination is not an “other similar cause” within the meaning of § 207. Such hours are different from occasional hours of absence due t o vac ation, ho li da y, illness, a

nd the emp lo yer’ s failure to provide work, etc., in that

they are hours that the employee

wanted to work butwas unlawfully prevented by the emp loyer from worki ng. Section207 does not clearly prev e nt such hours from
co u ntin g, and the purpose of the FML A’s hours-of-service
re quirement

is properly serve d by including these hours . I n suchcases, the employer’s unlawful conduct has prevented the employee fr

o m satisfy ing the h ours-of -servic e require ment. More over, denying employees cr

edit towards the hours-of

-se rvice require

ment for h

ours that they would have worked, but for their unlawful termination, rew ards employers

f or thei r unlawful conduct. We conclude that neithe rthe F MLA nor the FL SA addresses directly the situation in this case involving hours that an e mploy ee would 12 Ricco v. Potter, e t al. No. 03-3294

have worked but for her unlawful prior termination by her employer.

We n ote that back-pay

awards often include pay ment for overtime work that an employee would ha ve performed but for her employer ’s violation of employment laws. See, e.g., United States v. City of Warren , 138 F. 3 d 1083, 109 7 (6th Cir. 1998) (upholding an award of lost overtime g ran ted to prevail in g plaintiffs in a Title VII case); EEOC v. Ky

. State Pol ice Dep’t , 80 F.3d 1086, 1100 (6th Cir.) (upholding an
awar d of lost overtime payments g ranted to prevailing plaintiffs inan Age Discrimination in Employ ment Act case), cert. denied , 519 U.S. 963 (1996). Such back-pay awards involve two calc

ulations —

(1) dete rmining the numb e r of overtime hours the employ ee likely would h ave worked but for her unlawful termination; an d (2) determining the employee’s

likely rate of ov ertime pay. While the calculations contained in § 207 are necessary to determine the employ ee’s like ly r

ate of ov ertime pa

y, t hey have noth

ing to do with the determination of how many hou rs the e mployee likely would hav e worke d but f orher unlawful termination. When calculating a ba ck-pay a ward, the determination of how many hou rs the employee likely would have worked but for her unlawful termination is typically based upon the employee’s

work history. Similar

ly , when calculating the credit towards the hours-of-service require ment due as part

of
a make-whole award, the determination of ho w many hours the employee likely

would have worked but

for her unlawful te rm ination should also be based upon her employ ment hi st or y.
The goal of

a make- wholeaward

is to put the

employ ee in the same position that she would have been in had her employer not engaged in the unlawful conduct; this includes givingthe emp loyee cr

edit towards the FMLA’s hours- ofservice requirement for

hours tha t the employe e would

have worked but for her unlawful term ination. The district court must determine in the first instance the number of hours that Ricco would have worked but for her unlawfu l termina tion inNo. 03-3294 Ricco v. Potter, e t al. 13

ord er to ascertain Ricco’s eligibility under the hours-of

service requirement for FML A leave.

III. CONCL USION

F o r the foregoing reasons, we REVERSE the district court’s order g

ranting the Postma st er’s m otion to dism iss pursuant to Rule 12(b)(6) and REMAND this case for further proceedings consistent with this opinion. 14 Ricco v. Potter, e t al. No. 03-3294

____________________ CONCURRENCE

____________________ MERRITT, Circuit Judge, concu rring. The defendantemployer in th is ca se di sc ha rg ed pl ai nt if f w ro ng fu ll y, preventingher c on tinued work, acc ording t o a now-f

inal, arbitration

award, and thereby

prevented

her from qualifying for benefit s under the Family Medical Lea ve Act. I concur i n the Court’s opinion and simply add the i deathat a contrary decisionwould contravene fundamental general principles of resti tu tion and equitable remedies of long standing by allowing the employer to prof it from its own infringement of the plaintiff

’s righ t to the statutory benef

its derived from her own labor.

The remedies provided by t h e Family Medic al Leave Act and the Fair Labor Standar

d Act are make-wh

ole, equi ta bl e remedies, as the Court’s opinion suggests. The Restatement of Restitution in its intro ductory note sets out the underlying principle:

The principles expressed in this Chapter represent not only a large b o dy of contempora ry, “positive’ law but also a vie w of justice traceable to Roman law and beyond. The cen

tral idea is the conju

nction of unjust enrichment on the one side and l oss of grievance on the other. Rules of li ability

in restitu ti on de pend in part on the wrongful acquisition of gain and in part on harm or loss wrongfully

imposed. In some cas es the fa ct that a person has acquired a gain by wrongdoing is the principal reason for requiring him to make re stitution.No. 03-3294 Ricco v. Potter, e t al. 15

The firs t section o f the Rest atement t hen provides: § 1. The Ge neral P rinciple: Unjust Enri chment

A person who receives a benefit by reason of an infringement

of anothe

r person ’s intere st, or of lo ss suffered by the other, owes restitution to him in the manner and amoun

t necess ary

to preve nt unjust e

nrichme nt.
American Law Insti tute , Resta tement of the Law 2d , Tent. Draft 1, pp. 7-8 (April 5, 1983). See also Lightly v. Qouston , 127 Eng. Rep. 774 ( C.P. 1808) i n which Lord Mansf

ield applied the restitution concept

to the appropriation of the right of an employee of his labor
, upholding an action in the form of assumpsit for work a

nd la bor wrongly

prevented by

the defenda nt. See Palmer, Law of

Restitution § 2.1, n. 5 (1978), discussing the Lightly

case in a mo dern con

text. This sa

me fundamental principle of restitutionshould be applied in this
casewhere the employ

er wrongfully

prev ented t he labor of the employee ther

eby throug

h its action denying

the employee the benefit of family me dical lea ve . To leave the status quo inplace would unjustly enric h the employer

at the expense of the employee.