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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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My husband and I have a small business in the city of LA.

Resolved Question:

My husband and I have a small business in the city of LA. We have one full time employee. She did not disclose that she was pregnant when we hired her. She started working for us at the end of last November. She is out on maternity leave now. We have someone temporarily filling in and like this person very much and would like to keep this person on full time. Are we legally obligated to keep the position open for the employee who is out on maternity leave?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Hi,

I've been out of office. Hope I'm not to late to help.

In contrast to every other form of employment discrimination, discrimination based upon pregnancy is protected under Cal. Const. art. I, § 8, even if an employer has less than tive employees. Badih v. Myers, 36 Cal. App. 4th 1289 (Cal. App. 1st Dist. 1995).

You cannot terminate the employee while on pregnancy leave.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!



socrateaser, Lawyer
Satisfied Customers: 34638
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
I understand that I cannot terminate her while on maternity leave. Is there a certain number of weeks that she can legally be out on disability/maternity leave if we as a company of no "maternity leave" policy. And at the end of that disability term am I required to hire her back?

And if she returns could we let her go on grounds that she's not a "good fit" personality-wise?
Expert:  socrateaser replied 3 years ago.
Hey, I just found something useful here.

An employee has no reinstatement right if "each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer's ability to operate the business safely and efficiently." 2 Cal. Code Reg. § 7291.9(c)(1)(B).

Being that you have only one employee, not filling the position during the employee's leave is an absurd requirement. That's how I would approach the problem if it were my employee.

Just realize that some enterprising employment rights lawyer may want to sue you just to try to get you to cave in. That could cost you money to defend -- so, having the law on your side, may still be a sub-optimal solution.

Re the amount of time that you must reserve the job, absent a legitimate defense (are you sitting down): it's 4 months!

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 3 years ago.
Thank you so much! So in essence, I would need to legally keep the position available to her for 16 weeks from her last day before she started her maternity leave and keep the temporary employee. Once the 16 week window has passed, we then have no legal obligation to re-hire her.

I do understand that that she could make our lives difficult.
Expert:  socrateaser replied 3 years ago.
Correct.

socrateaser, Lawyer
Satisfied Customers: 34638
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

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socrateaser
socrateaser
California Employment Lawyer
34638 Satisfied Customers
Retired (mostly)