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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
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Experience:  Employment/Labor Law Litigation
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Ive been on maternity leave for six weeks. Ive been informed

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I've been on maternity leave for six weeks. I've been informed that my position will be eliminated three days after my return. I've been offered a position elsewhere within the company but it is not equivalent to my current position. Is this legal (in ohio)?

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

 

That really depends on why your position is being eliminated.

 

The FMLA doesn't legally protect your employment from termination for any reason. All it does is legally protect your employment from termination based simply on the fact that you were using FMLA.

 

The prime example of this is when a company is already planning lay offs and they have documentation of the fact that someone was selected for law off before they even requested FMLA. FMLA doesn't keep them from being terminated, because there is clear evidence that they weren't selected based on their use of that time off. Another good example is company policies where they lay off based on seniority. If a person was lowest on the list and was laid off according to their seniority (and they were lower on the totem pole), then the termination is legal.

 

So, what matters here is not that you were on leave, but rather, whether or not your leave was the motivation behind your position being chosen for elimination. If the employer can demonstrate that your position was selected for a reason that has nothing to do with the fact that you were using leave, then it is perfectly legal for them to eliminate the position.

 

So, you can contact the Department of Labor to have them investigate and question the process used to select your position for elimination. They may find that the employer was motivated by your leave, but that is probably not the case given that most employers understand that to eliminate someone's position while they are on medical leave pretty much subjects them to a claim of discrimination....so they tend to have some documented and legitimate reason for eliminating the position.....not always though.

 

 

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