Los Angeles, CA asked in Employment Law for California

Q: Hi, can you be laid off while on maternity leave?

When I reached out to my manager, letting her know I'd be coming back, she told me that she didn't have any hours to give me because they had just hired someone a few weeks prior.

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1 Lawyer Answer

Donald Arthur Hilland

  • San Fernando, CA
  • Licensed in California

A: So the law on return from pregnancy depends on a number of factors. If you came to office I would ask things like how many people work there - very important as to which laws apply. If its 3 people, then no. If it's 50 or more, then maybe yes. Understand that the law has many rules but even more exceptions and figuring out the rules without the exceptions won't get you any relief. So if it is say 50 or more then what do you do? Are you a professional, nonexempt employee at will like most people, is your special like a wire operator at a stock broker where they only need one and maybe a part-time relief? It depends. And I hate to say that, but that is the best answer until I know more. I have done many pregnancy cases and I would like to answer you more so let me just give you some scenarios and you can decide what you want to do. (I do a lot of pregnancy law and I have a website on that pregnancydiscrimination.us as well as my regular website attorney818.com that might help but there is loads of stuff on the internet) The law in California is basically strong and there is also federal law. So you probably know that if you're a pregnant worker, two federal laws protect your workplace rights. ... Under the Pregnancy Discrimination Act (PDA), your employer cannot discriminate against you in the terms of your employment on the basis of pregnancy, childbirth, or related conditions. The second law is the Family and Medical Leave Act. I am a California attorney so only California law and federal law would apply to my advise, and I assume you are in California. As I say, 50 or more workers. That means a big company usually. Although in the Valley we have an underground economy where people are paid in cash and the boss often lies about how many really work there. Another thing is that you get 12 weeks. NJo more. I know women sometimes take longer for various reasons, C section, husbby working and am able to take more time, baby bonding, etc., so the 12 weeks is important for them to keep your job open. So has it been more than 12 weeks? If yes, could be a problem. If no, then the question is why they are firing you. If it is because they hired someone else knowing you'd be back, then you win basically assuming it's 50 or more and 12 weeks or less. But if it was say a mass layoff, for" business purposes" meaning economic reasons, that's the way they avoid it. Employers often say that when it's not true. We call it a pretext in Employment Law, meaning the reason they give, not the truth. What does your gut tell you? How long did you work there before the baby/leave? If you'd been there for years, then that's in your favor. I would want to know more to give you an accurate answer, but it sounds like a booboo on their part and that would mean you could make a claim against them. Another rule under Family Leave is that you have to have been there a certain time and earned a certain amount. A recent case with the husband, they claimed he had not worked there long enough and earned enough, but in fact he had been initially hired by an agency then made permanent and if we counted that time then he qualified so that's where the battle was. They did not give up easily. Takes a judge to rule. Recent changes in Cal. law make employer and agency equal in many respects but it's not automatic. You have to win. So yes and no. Need more info. But the presumption would be no, they cannot fire you on maternity leave. That's why we have those law, right?

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