My wife is returning to work tomorrow from maternity. She was on FMLA for the last couple weeks, but that has been exhuasted. She is returning to work in another position as they have a temporary worker filling her orginal position. She will be doing similar work, so the employer has created a position.

She suspects that they want to let her go in order to hire this other person. Her previous boss has spread his opinions in the office that she is not a good worker. As such she feels that it is only a matter of time before they let her go. She is the low person on the company pay roll. Not sure what options she might have if she is consider for termination via layoff or otherwise. Would we be able to take any legal action if she was terminated given the present situation. What would be some other options?

She would only have legal recourse if she can demonstrate that she was not fired because of her work, but because of her pregnancy. The law does not say that you cannot be fired if you are pregnant, only that you cannot be fired because you are pregnant. It doesn't say that you can't be fired once you come back from maternity leave, only that you can't be fired BECAUSE you took maternity leave.

What, if any, evidence does she have that her pregnancy is the root cause of her potential firing?

She has no definite way of proving or documenting that the pregnancy is the issue. The issue we are confused on is whether she can be terminated when the job will still be available. Obviously her employer would like to make a hiring decision, but they are restricted by their budget. From what she has told me there was also an issue regarding performance. No other issues were documented and that she says she sufficiently meet the requirements of the position after that one instance.

My guess is the end result will be an issue of "at will" employment and the employer making a hiring and firing decision after she returns from leave. Does this leave her with unemployment as the only option?

She can legitimately be terminated because of budget constraints. She can legitimately be terminated because of performance issues.

It would only be illegal to term her BECAUSE she was pregnant or BECAUSE she took maternity leave.