Is is legal to not give me back the same position that I had prior to my maternity leave?

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Is is legal to not give me back the same position that I had prior to my maternity leave?

I’m returned back from maternity leave and not given my original position, plus only 2 days instead of my 5 – graveyard hours. The new manager told me that she likes how the person who covered my position works and said that I would have to take Thursday and Sunday graveyard shift and that is a different position than what I had. I worked morning shifts before. I have never worked nor met this new manager so she does not know how I do my job. If I didn’t like it then for me to give her my 2 week notice. Can she do this? What should I do? Should I speak with an employment law attorney? In Pasadena, CA.

Asked on December 1, 2010 under Employment Labor Law, California

Answers:

Aryeh Leichter

Answered 10 years ago | Contributor

The terms and conditions of your employment have certainly been adversely affected by you engaging in an activity protected under the law (pregnancy leave).  The question is whether your employer is large enough for its conduct to be considered unlawful; you will certainly want to speak with an attorney.  Please feel free to contact me if you would like to discuss the matter further.

All the best,

Ari Leichter

 

 

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You may or may not have rights in this situation. For one thing, how large is your employer (i.e. how many people are employed there)? Also, how many hours did you work in the year before your leave? Additionally, other factors may or may not come into play. There is a good chance that you may have legal recourse under several applicable laws.

The Family and Medical Leave Act “(FMLA”) covers pregnancy-related leave. The Act allows qualified employees to take up to 12 weeks of unpaid leave to attend to family matters. A pregnant employee is eligible for FMLA leave if she: (1) has worked for the employer for at least 12 months (not necessarily consecutively), (2) has worked for the employer for at least 1,250 hours in the previous 12 months, and (3) works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees (all full-time government employees are covered regardless of the number of employees at a particular agency, school, or other public facility). Under FMLA, when an employee returns from leave, the employee is entitled to be restored to the same job or an equivalent job (same pay/benefits).

You may also have some coverage under the Pregnancy Discrimination Act (“PDA”), the Americans With Disabilities Act (PDA, and the California Family Rights Act (CFRA).

At this point you should speak directly to an employment law attorney.


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