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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12942
Experience:  Significant experience in all areas of employment law.
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Hello, We need legal advice regarding the return of an employee

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We need legal advice regarding the return of an employee from maternity leave. We are small medical office (18 - 20 employees, including physicians). A 4 year employee went out on maternity leave in February 2013. They are expected to return later this month (April) or May 2013 (this was a surrogacy situation so they will not be entitled to the bonding period). The problem at hand is: while this employee was out 2 of our 4 physicians left. When we had 4 physicians having 5 clinical assistants worked out. Having only 2 physicians- even on a very busy day does not by any means require 5 clinical assistants. I know this is dipping into murky waters but...can we legally inform the returning employee that their position is no longer needed since our work load has been greatly lessened or are we required to return her to our roster even though we really have no position for them and her return places us overly staffed?

Any assistance would be greatly appreciated. Thank You.
Hello and thank you for entrusting me to answer your question.

California's 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, unpaid 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
regulations. 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."

Although PDLL prohibits employers from terminating pregnant employees who are out on leave for four months or less, PDLL does NOT provide absolute job security (nor any other law for that matter) and employers still retain the freedom to layoff employees on PDLL if there is a legitimate business necessity for doing so, such as a reduction in staff.

The problem in targeting this specific employee for a layoff, however, is that you will be retaining three others who perform the same job duties (clinical assistants). Why are you choosing to pare down your staff by eliminating this employee and not one of the other clinical assistants? If you don't have a compelling reason other than that she is the one who is absent, then you will still likely run into legal trouble because although "layoffs" were a necessity, this particular employee's layoff was not.

If you can offer compelling reasons why this particular employee is one of the two being chosen for layoff (i.e. seniority, credentials, etc.) then perhaps then you would be taking defensible action. No matter how you cut it, however, you will be inviting litigation if you terminate a pregnant employee within the first four months they are absent, and especially so if you cannot state a compelling reason for why this particular employee was laid off.

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.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.
Customer: replied 4 years ago.



Thank you for answering my question. Please allow me to further explain our dilemma. The reason this employee was selected for termination over the other 4 assistants (we have 5 in totality) is the employee is routinely argumentative, extremely hesitant to change of any kind, incorrectly trained new hires (we only found out while the employee was on leave) and overall is not the personality we prefer in our staff. The current 4 assistants have really stepped up to the plate in the last 2 months. Prior to the leave- they all leaned on the employee who is out for guidance as she had been in the office for 4+ years. In her absence they have become more self reliant and that is what we want. There is a consistent flow and new found work ethic. Our fear is that once the employee returns- she will fight the changes that have been implemented (there is long history of that behavior) and interfer with our new atmosphere. It has been suggested to return the employee for approximately 90 days and then term them. The problem is our payroll/patient flow cannot support 5 clinical assistants. In reality we would prefer 3 but are willing to support 4 in cases where staff are on vacation, call in, etc. We have also trimmed down staff in another department due to not only performance issues but because the work load in their respective area has decreased dramatically.


We were previously informed that we can return the employee to our roster but to part time hours (or less). This would be because of the reduction in physicians and therefore work load. Additionally, we would not offer them benefits as their hours were reduced. I understand the logic but something just doesn't feel right about it. Many things in Human Resources don't but that comes with the territory as they say. The employee is due to return very soon and we would like to reach a resolution as soon as possible.


Your assistance is greatly appreciated in this matter.


Thank you.


Thank you very much for your reply. It sounds like you do have legitimate reasons for laying off this particular employee opposed to the other clinical assistants. My question to you would be whether you have actual evidence of these performance issues. If you have evidence (write-ups, emails, witnesses) regarding these problems, then you would be in a position to justify why this particular employee was chosen for inclusion in the reduction of force.

Does it guarantee you won't be sued? Nobody can guarantee that because people sue for frivolous reasons all the time. Termination under these circumstances (with documentation of the performance issues) would, however, give you a very strong position in defending any discrimination claim, in the unlikely case this employee decides to pursue one. The cost of defending even frivolous litigation, however, is a factor you should consider in deciding what to do.

Simply reducing this employee's hours would not be an effective approach unless the hours of all clinical assistants were equally reduced. If they are not, we are back to square one with the question as to why this employee, opposed to the others, has been the one chosen for the reduction in hours. If you can justify this with the performance issues you mentioned, then you can equally justify the layoff, and so this is a rather superfluous option, unless you actually want to put this employee into a part time position.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you for your guidance and advice. The management team will sit down with these notes and review the matter. Again, thank you very much.

It was truly my pleasure to assist you. If you have any further questions or concerns regarding the above, please do not hesitate to contact me in the future. I am always available for followup at no additional charge.

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