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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1831
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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we are a company with 35 employees. one customer service girl

Resolved Question:

we are a company with 35 employees. one customer service girl is pregnant, but we are also slowing down, the person in question is handeling mainly one customer who is not very actif anymore, plus we a shipping clerk position is available but requieres lifting, we do not have a position safe enough for her pregnancy how legal it is to lay her off at this stage.? see is almost 6 month pregnant
Submitted: 12 months ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 12 months ago.

Brandon, Esq. :

Hello, my name is XXXXX XXXXX it will be my pleasure to assist you today. My goal is to provide you with excellent service. Are you online with me today?

Brandon, Esq. :

Welcome to the chat

Brandon, Esq. :

While you are correct that the FMLA and the CFRA do not apply in this situation, under the ADA and other discrimination laws, if an employer has at least 15 employees they are prohibited from discriminated against a person because of their disability. Pregnancy is considered a disability under the law. Thus, if you were to lay her off, she would file a lawsuit against you, and win.

Customer:

hi Brandon yes I am my name is Annie

Brandon, Esq. :

Hi Annie

Brandon, Esq. :

the FEHA combined with the PDL technically eliminates any cap on the leave an employer must grant to its employees in this particular situation. What I mean by this, is that unlike the FMLA and the CFRA there is no set time where a persons job is protected.

Customer:

so laying her off will be discriminating her?

Customer:

so laying her off will be considered discriminating her? she is planing to leave end of november are we suppose to hire her back when she wants to return? we really do not have much for her anymore

Brandon, Esq. :

Does this person have any accrued leave?

Brandon, Esq. :

Because courts have held that it is reasonable to keep a persons job open for them for up to 18 weeks given the circumstances you mention.

Brandon, Esq. :

While you do not have to pay her during the leave, firing her will open you up to litigation

Customer:

So it is okay not to hire her back?

Brandon, Esq. :

Only if she cannot come back prior to the 18 weeks.

Brandon, Esq. :

You can find the exact law applicable to you here:

Brandon, Esq. :

pay specific attention to section 12945.

Brandon, Esq. :

in short it states that you have to provide up to four months of disability leave to pregnant employees

Brandon, Esq. :

Under Labor Code section 1030, if this person can work, then you have to provide a reasonable accommodation to them. Further, if they do work, then

Brandon, Esq. :

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=12001-13000&file=12940-12951

Brandon, Esq. :

I apologize I don't know why that didnt post before

Brandon, Esq. :

While you do not have to pay her, you must maintain and pay any health coverage this person has

Brandon, Esq. :

However, you may recover the premium paid from the employee if she does not come back within that 18 week period

Brandon, Esq. :

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

Customer:

so I am a little confused in one word we can not lay her off now, and have to hire her back after her 4 month. so how can we get rid of her?

Brandon, Esq. :

You can convince her to resign.

Customer:

so if we hire her back her position will be taken. so can we propose her another job (she might not like ) so she will resign?

Brandon, Esq. :

Well, the job offered has to be the same, or primarily the same. So, while it can be a different job, it cannot be for less pay and/or have significantly different job responsibilities.

Brandon, Esq. :

You can offer her a severance package to resign. If she signs a waiver giving up all rights to sue you, then she looses her right to bring a lawsuit under PDL, FEHA, the ADA, or the other laws that would otherwise protect her.

Customer:

ok that is it so at this point we are screwed!!! whatever we do

Brandon, Esq. :

Unfortunately California gives some of the most protection to employees based on pregnancy.

Customer:

ok thank you that was not nice but helpful!!!

Brandon, Esq. :

I really am terribly sorry to deliver the bad news, but I would much rather you know the information now, and at a maximum be out the premium for her health insurance, and avoid the lawsuit later.

Brandon, Esq. :

Have I fully answered your question today?

Customer:

yes you have thank you very much at least now we know what to do or not to do.

Brandon, Esq. :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Brandon, Esq. :

Have a wonderful rest of your day.

Customer:

you to Brandon

Brandon, Esq., Lawyer
Satisfied Customers: 1831
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you
Expert:  Brandon, Esq. replied 12 months ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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