FMLA Rights

UPDATED: Oct 1, 2022

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FMLA Rights

Good afternoon,

Im currently on Maternity Leave, expected to return
on Feb 21, 2018. As of today I have not given my
voluntary resignation however I was told by a
current co-worker that a job has been posted online
for my replacement.This job opening was created on
1/12/2018. Do I have a case?

Thank you

Asked on February 10, 2018 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you were properly able to use FMLA (your company has 50 or more employees located within a 75-mile radius; you worked there at least a year and worked at least 1,250 hours in the past 12 months) and did in fact use it, then so long as you don't exceed the 12 weeks FMLA gives you, they must give you back either your old job or an equivalent one. (That is, one for same pay, similar level of authority or seniority; they are allowed to manage their business and redeploy people, but cannot deprive you of a job like the one you had before leave.) If they refuse to allow you back to your old job or an equivalent one, you could contact the federal or state department of labor to file a complaint; denying a return to employment after FMLA leave is illegal.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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