I have a unique situation, and I need to determine if I have a legal stance here. Last September, I informed my employer that I was pregnant and was requesting to take an extended maternity leave (5 months). The employer stated that I could take the 12 weeks of FMLA and then any additional time would be allowed since I had worked for them for over 2 years and was eligible for up to 6 months of "personal leave". Although they told me that legally they were not required to bring me back after leave, they "would be stupid not to". So at no time, was I concerned that I would not have a job when I returned from leave. So when the baby was born in March, I proceeded to take my FMLA. However, in May, 2 weeks prior to the exhaustion of FMLA benefits, I was informed the company was being sold to a competitor and my "Safest option" was to return to the company at the end of FMLA. Since I had already planned child care, etc to start in August, and could not change it in two weeks, I told them I was going to continue to take the leave as I had planned. However, in July when I met with my boss to discuss my return, she informed me that she "could not bring me back" the "CEO had told her to hold headcount and wouldn't let her bring me back". However, the company had continued to pay all my medical benefit premiums for the entire time I was out on leave, which indicated to me that they were planning to bring me back.

I have consulted with a local lawyer on this and he says I have a case for FMLA retaliation and/or pregnancy discrimination. He says that although with the exhaustion of FMLA, the company did not legally have to bring me back, their words and actions gave me no concern that they would not, so I have a case. However, I would like another opinion before I retain a lawyer. Any advice is appreciated. Thanks!

The lawyer didn't think that the company changing hands was a factor? I do.

The company has not yet changed hands. The deal is still being investigated by FTC, so the sale has not closed as of today 11.05.08. No one else was "released" at this time or for this reason.

Holding headcount doesn't just refer to people who are on extended leave not being brought back. Is the company filling vacant positions now? Is the company allow new positions to be created in all departments?

In order for this to be pregnancy discrimination, you'd need to be able to demonstrate that someone who was on extended leave for a non-maternity condition and who had exceeded his/her 12 weeks of FMLA would be brought back. I suspect that the company would argue that holding headcount would apply in that situation as well.

I also agree that the pending sale of the company is enough of a change to be a factor.

I think they have stopped all hiring for salaried positions. They are a manufacturing facility and I am sure have hired up for their busy season since I was released. But I know they were bringing in contract people for a department, but I believe they stopped that shortly after my departure as well.

Also - how about FMLA retaliation? That is what the lawyer said I could charge as well.

Thanks for all your help!

Can you show that someone who was on an five month NON-FMLA leave would have been brought back? If not, you're going to have trouble sustaining a retaliation claim.

Truly, it sounds as if the employer had every intention of bringing you back, even after your FMLA expired, until there was a very big change in business conditions that resulted in their having to make policy changes that affected everyone, not just you.

To take any kind of legal recourse you will need to show evidence that ONLY you were affected and the ONLY possible reason for it was your pregnancy/FMLA leave.