Is it legal in CA to lay off an employee that is currently on Maternity Leave?

redvelvetflames4ever

Here is the key to this dilemma. Were any other employees who were at your place of employment employed for less time than you and doing the same type of work, but they are still employed? If so, then I would speak to an attorney. If you were especially covered under FMLA and/or company leave plan it was a very dumb move on there part. Again speak to an attorney who offers free consultations (an employment lawyer.) You may have something. You can also contact the FMLA Division of Department of Labor to see if they violated any of your rights.

weakmonster

It's not illegal.... if the employee isn't officially on maternity disability leave... but the company opens themselves up for a law suit, which most companies wouldn't risk.

Win the West!!!!

Its not really a yes or no question....there are other factors like maybe the employee cannot afford to pay that position, or other situations like that. Unfortunately its just not that simple. They cannot terminate you because of maternity leave though.

Best bet is to talk to an attorney. Many will give you free consultations.

Expert Realtor

Yes, it actually is. I don't agree with it, but it is.

If they can prove how employee layoffs were chosen, and that you were not targeted because of the pregnancy, then they can.

This is easily done if many others were included or your job title.

If you were singled out, then that is going to be difficult for them to prove.

Employers are NOT required to layoff according to seniority, unless you are part of a union or some other employment contract that has special allowances for seniority.

Maternity leave is NOT the same as FMLA. Also, an employer does not have to give you FMLA, if you have worked there less than 1 year. That is a very important distinction that people forget.

If you were formally on FMLA, then your job would have been legally protected.

intheleast

If it is a non-paid maternity leave, then it is legal to lay her off. Why should she be protected from a layoff just because she had a child? Other employees are being laid off...right?

Having a kid doesn't protect you from a layoff.

Mel

To be on the safe side, most employers do wait for the employee to return from leave. However, if the business is undergoing substantial changes (mass layoffs, moving or closing sites, etc.), it is permissible to lay off employees on leave.

You'll want to check ythat ou're not inadvertently discrminating against this person - for example, if you are only laying off one person and she happens to be the only Hispanic worker over 40 in your site, plus she's on maternity leave, that would be a very bad idea. If she's one of a number of employees that are being affected and there isn't a pattern that affects employees in a particular race, gender, or age class, you're probably fine.

mj69catz

It depends on the situation. FMLA allows for 12 weeks of leave. If the leave exceeds 12 weeks, they can terminate the employee.

It could be in the employee's best interest if, knowing they are going to take more leave, they tell the employer that they are taking more leave. Otherwise, the employee could be responsible for repaying any benefits.

cynthiathegreat2001

I think the law say's they have the right to be off for 120 day's .4 months. Thanks to President Clinton

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