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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12801
Experience:  Significant experience in all areas of employment law.
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My employer is eliminating my job while I will be on maternity

Customer Question

My employer is eliminating my job while I will be on maternity leave ( the new fiscal year)
I was told they will have two new part time positions that I can apply for. Is this legal or
Do they have to keep my job until I get back from leave?
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.

Good morning and thank you for entrusting me to answer your question. I am very sorry to hear that your position is being eliminated and completely appreciate your concerns here.

California's Pregnancy Disability Leave Law (PDLL) requires most 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 due to pregnancy leave of 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 or elimination of a position.

Thus, it is with regret I must tell you that an employer under the circumstances you describe would be under no legal obligation to hold your position until you return, nor to grant you preferential hiring treatment with regard to the new part time positions. They would, however, be prohibited from weighting your time off against you in consideration of your application for the part time jobs, and if you were passed up for individuals who were obviously less qualified, you may have a claim for discrimination. Of course, at this point in time, such claim is highly speculative.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver what you may regard as partially 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.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you.

Very best wishes to you and thank you so much for coming to Just Answer.