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My wife's position is being terminated while still on Maternity Leave California

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  • My wife's position is being terminated while still on Maternity Leave California

    I do not in any way, have an idea of how the labor laws work. But I do not think this is legal.

    My wife works full time, from a home office provided by her employer. The employer is a medical office based out of San Francisco. We live in Sacramento. My wife basically handles all of the doctors patients that he sees in Sacramento. The doctor comes to Sacramento every Friday to see patients. Anyways...

    She has been employed full time, 40hr/wk, since 12/09. We recently had our 2nd baby boy, born on 5/5/11. She has been on Maternity Leave and is taking a concurrent FMLA leave. She was scheduled to go back to work on 8/15/11. She received an email today, stating that her position is being consolidated, and the Sacramento position is being eliminated as of 7/31/11. They are offering her a part time, 25hr/wk position, in San Francisco.

    This is giving her 2 weeks to decide, and she isn't even off FMLA leave for another month.

    This just does not sound legal to me. Any help or advice on this matter would be greatly appreciated.

    Thank you
    -John

  • #2
    Neither FMLA nor being on maternity leave protects her from a business decision that would have occurred whether she was on leave or not. Does she have a valid and supportable reason to believe that if she had not taken maternity leave/FMLA that her position would NOT have been consolidated?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      I cannot really speak for her, but I know that the Sacramento patients were over 60% of the companies business. So to eliminate this full time position, and offer a part time position just doesn't make sense. I mean she works in the office with the doctor on Friday's when he comes down as well.
      This office manager is not the brightest, it's all beyond me.

      Comment


      • #4
        That is really the issue at hand, though. The law says that the employer cannot take an adverse action against her in retaliation, or to punish her, for taking FMLA or maternity leave. However, the law does not say that the employer cannot make a business decision, that has an adverse affect on her, simply because she happens to be on FMLA/maternity leave at the time that he makes it. If this would have happened whether she took leave or not, then it's legal. If the doctor, for reasons of his own, is consolidating the business to be focused out of San Francisco from now on and not Sacramento, he is not prohibited from making that decision simply because by coincidence your wife was on maternity leave at the time. He is prohibited from making that decision SPECIFICALLY because she was on maternity leave at the time.

        He can't punish her for taking leave. He can make business decisions that are irrelevant to her leave that have an adverse affect on her.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          Agree, she would need to have a valid/supportable reason that this action re
          her position would not have happened if she hadn't taken FMLA/maternity
          leave.
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

          Comment


          • #6
            I'm just not sure how she could prove that? She does though, have an evaluation dated 4/30/11, not even a week before my wife took maternity leave, stating that her work has been Excellent, and that her "position from her home office, would be available to her at her full time 40hrs/Wk", when she returned from leave.
            So I don't see this "consolidation" being in the works for very long.

            Comment


            • #7
              Her work may not have anything to do with it. Business decisions are made all the time without taking individual employees' situations into account.

              Look at it this way. Do you REALLY think that he would restructure the office in this way for the SOLE purpose of punishing her for taking leave? Do you not think that there must be SOME other reason behind it?
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

              Comment


              • #8
                She might have a hard time proving that the decision to restructure was due to
                her taking maternity leave.

                I have to agree with cbg.
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                Comment


                • #9
                  Ok. There is alot more to this office manager. It's her doing, not the doctor. I'll just say that the office manager is the doctors wife, and does as she pleases. Anyways...

                  I've been reading alot on the laws pertaining to coming back to work after leave, and came up with this: If the position she should be going back to has been eliminated, there should be a comparable position for her to go back to. And to me, going from full-time, 40hrs/Wk in Sacramento, is in no way comparable to 25hrs/Wk in San Francisco (2+hrs away...and driving there & back).

                  Comment


                  • #10
                    Is the Sacramento office closing entirely? It makes a big difference if it is closing.

                    Do you really think that it is just because your wife took maternity leave that the office manager is vindictively making these changes?

                    Comment


                    • #11
                      It's true that an employee must be reinstated from FMLA/CFRA to the same or comparable position. However, a complete defense to that is if there is a legitimate business reason, unrelated to the leave, why there is no position for the employee to return to. There is no way you will know whether the employer's reason is legitimate or not unless you file a complaint and do some discovery. If your wife feels her reinstatement rights have been violated, she can file a complaint with the Department of Fair Employment and Housing. www.dfeh.ca.gov.

                      One question: is she really on FMLA/CFRA? Does her employer have 50 or more employees within 75 miles of her work location? If not, she's probably only entitled to Pregnancy Disability Leave (PDL) and while she has similar reinstatement rights on PDL, it only protects her job for as long as she is actually disabled by pregnancy. For a birth with no complications, this is usually only 6 weeks.

                      Comment

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