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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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We are a small startup company with less than 20 employees and no revenues yet.One of our

Customer Question

We are a small startup company with less than 20 employees and no revenues yet.One of our employees has been out on maternity leave since June and wants her job back starting 1/17/12 at her old pay. She may have had some slight complication several months ago but did not send us any information from her doctor concerning any complication that would have prevented her from returning to work. Are we required by law to hire her back at this point. Her former job does not really exist anymore and we would have to create a job for her. Also, were we required to give her otice that her maternity leave was up or is the burden on her to request more time?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  arcadierm replied 5 years ago.

Board Certified Attorney : Because you have less than 50 employees, you do not have to hire her back under the law. Also, since no 50 employees, there is no notice requirement for you that applies to your facts.

So I shouldn't expect there to be any problems regarding any possible liability for discrimination under EEOC or DFEH

Expert:  Patrick, Esq. replied 5 years ago.
Hello. Are you waiting for further assistance on this question?
Customer: replied 5 years ago.
Yes, I asked whether there was any possible liability for discrimination under EEOC or DFEH regulations? One lawyer I spoke to mentioned that, but I don't understand why there would be, and I wanted feedback on this possibility.
Expert:  Patrick, Esq. replied 5 years ago.
I see. Thank you for clarifying and please, if you will, allow me to pick up where the previous expert left off.

The California Pregnancy Disability Leave Law (PDLL), contained in the Fair Employment and Housing Act, applies to employers who employ five or more employees and applies to all employees, irrespective of the amount of time they have been employed. PDLL requires employers to provide for up to four-months of protected leave per pregnancy that can be taken on a continual basis or in smaller increments, as needed.

Specifically, Government Code 12945 states as follows:

(a) In addition to the provisions that govern pregnancy,
childbirth, or a related medical condition in Sections 12926 and
12940, each of the following shall be an unlawful employment
practice, unless based upon a bona fide occupational qualification:

(1) For an employer to refuse to allow a female employee disabled
by pregnancy, childbirth, or a related medical condition to take a
leave for a reasonable period of time not to exceed four months and
thereafter return to work, as set forth in the commission's
The employee shall be entitled to utilize any accrued
vacation leave during this period of time. Reasonable period of time
means that period during which the female employee is disabled on
account of pregnancy, childbirth, or a related medical condition."

Thus, a claim for discrimination could be brought through DFEH (which enforces FEHA including the above law) by an employee who loses her job in the first four months after she takes a leave of absence for a pregnancy. However, the Act is clear that protections only apply for four months, and an employer is free to let an employee go after that point, typically speaking.

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

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Patrick, Esq., Lawyer
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Experience: Significant experience in all areas of employment law.
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