Eliminating a position while the worker is on maternity leave

A friend of mine was laid off the last business day before her maternity leave was to end. She went in on the Friday before she was supposed to go back to work to make the first day back a little bit less painful. Ha! Her boss asked to see her and she was terminated. She sued and while it took a lot of time, she won.

If the idiots had waited until Monday, she would have had no recourse, but because she was still technically on leave, what they did was illegal.

 

The Department of Labor, under the current administration (which considers the FMLA an abomination), has a thunderous lack of interest in enforcing cases of this type. The good hardworking bidness owner gets the benefit of the doubt at every turn. If these dumb broads had any brains, they'd stay home and let their rich husbands (or rich daddies) support them, instead of this disgraceful interference with the miracle of the free market.

 

My money was on JRC, which pulls this shit as a matter of routine policy.

One woman at our joint wanted to take a couple months off to care for her mother. (Who, as it later turned out, was terminally ill with cancer). The publisher told the employee "you're going to have to fight for it" to get the time off, or to have a job at all when she came back.

The employee, shockingly enough, said "fuck this, fuck you and fuck off" and quit.

The publisher immediately slithered back into his office, picked up the BobPhone to Jelenic, and reported he had just saved the company $50,000. Yippee-ki-yay, motherfuckers.

 

Sadly, if it's a CNHI rag, 50 employees is a close call.

 

I would love to be her attorney...

 

Proof positive: No one gives a fuck about you but you.

 

Big human rights case took place in Nova Scotia, not to a journalist, but a grocery store clerk. She was terminated because she went on maternity leave. She took the fight to Human Rights Commission, and if I am not mistaken, she won the case and money too.

 

I was wondering the same thing.

What makes someone on maternity leave more "untouchable" than someone not on maternity leave who is told, "We're eliminating your position. Get out." ??

Now . . . if they fired her because of her leave and hired someone else because they wanted someone there to do work . . . ILLEGAL.

But I don't see anything illegal in eliminating a position. Evil, perhaps. But not illegal.

 

Under the family medical leave act, if a person takes maternity leave, there must be a position waiting for them when they get back. If they want to eliminate the position they have to wait until she's back for at least a day, and even then, I think she'd win a lawsuit if they terminated her position.

Same with Paternity leave, by the way.

 

I was a human resources manager about five years ago. Back then an employee taking FMLA was guaranteed employment. It did not have to be the same position though any change in position had to be in the same salary range. Unless the law has changed in the past few years the person in question will have a job when they return from maternity leave. Where things may get sticky is that you said they are paying her while she's on leave. Again, I'm basing this on how things were several years ago...but a company is not required to continue paying an employee a salary while they are on leave. They can certainly use any personal/sick/vacation time accorded them based on their company's policy.
As for whether or not to let the individual know about the position being eliminated: you might want to consider whether or not this could be a tramatic event that might cause complications with the individual's pregnancy. When my ex-girlfriend was pregnant with our son she was pretty much ordered to stay in bed the last couple of months of the pregnancy. Her doctor instructed us [us being myself and our families] to do everything possible to not expose her to anything that might cause her stress. That may not certainly be the case in your situation. But it's definitely something I think you should give some thought.

 

FMLA required payment at least two years ago. I covered a case where the state ordered a woman to pay money back to them that she was paid while out on sick leave with a sick child, but she was protected under the FMLA and basically had a lawyer tell them that and they shut up pretty quickly.

 

i'm a sports writer turned lawyer and although i have yet to do any employment law in my practice, it seems like spup1122 has something of the right idea (although she is dead wrong in stating that the FMLA requires payment...there had to have been other details in the story she covered...it's clearly stated in the FMLA web site linked to above): often all it takes in situations like this is to find a lawyer who will spend a couple of hours with the woman and write a letter threatening legal action. the employer will often back off. maybe it costs a few hundred bucks in legal fees, or maybe she can find a lawyer friend who will do this for free.