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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 17252
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I own a restaurant. I have a server who has been here working

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I own a restaurant. I have a server who has been here working appox. 20 hours per week for 2 and 1/2 years. She is just coming back from her second maternity leave. She used to work Thurs-Saturday nights. I was offering her to come back slowly and start with Wednesday and Thursday nights. Does she have a case against me because I am not offering her full hours?

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

This is a common situation,

wallstreetfighter :

did she take FMLA leave?

wallstreetfighter :

Unless she was given FMLA job protection for her leave,

wallstreetfighter :

as the employer you do not have to provide her with the same hours as before,

wallstreetfighter :

you cannot make any decision due to ther maternity leave or pregnancy, but have to make the decision based upon your needs,

wallstreetfighter :

if you do not need her to work those extra hours, you are not required to, under the law.

Customer:

So if there was no paperwork filed then we have no legal obligation? What exactly is a FMLA job protection?

wallstreetfighter :

In Mass, an employee has two maternity leave laws that protect her,

wallstreetfighter :

the FMLA, is the federal law, and the MMLA protects her if you have 6 or more employees,

wallstreetfighter :

Under the law, when the employee returns,

wallstreetfighter :

they have a right to return there own job, or similar job,

wallstreetfighter :

however, if you can show you do not need her to work more hours, then you have not violated the law.

wallstreetfighter :

The law in Mass, states "An employer is not required to restore an employee on maternity leave to her previous or a similar position if other employees of equal length of service credit and status in the same or similar positions have been laid off due to economic conditions or due to other changes in operating conditions affecting employment during the period of such maternity leave; provided, however, that such employee on maternity leave shall retain any preferential consideration for another position to which she may be entitled as of the date of her leave."

wallstreetfighter :

If she only worked 20 hours before, and you are giving her 20 hours, that would be allowed, you are not required to give her more than 20 hours,

Customer:

So if we give her less hours than before because we had to hire some one else to cover for her, then she has a case against us? We would like to keep the new employee as well as her, which means less hours for everyone involved.

wallstreetfighter :

If she is covered by the MASS law, you would be required to limit the new employees hours,

Customer:

how do we know if she is covered?

Customer:

or is everyone automatically covered by the law?

wallstreetfighter :

Female employees are eligible for job protected leave if you satisfy several requirements:



  1. You met your employer’s probationary period as a full time employee.

  2. You are taking leave for the birth of a newborn, adoption of a child under the age of 18, or adopting a disabled adult under the age of 23.

  3. You give your employer at least 2 weeks written notice.


The MMLA requires that a female employee on leave be restored to her previous or a similar position upon her return to employment following leave. That position must have the same status, pay, length of service credit and seniority as the position the employee held prior to the leave. When determining full time status your employer must consider such factors as hours worked, days worked, benefits received, other leave entitlement, the employer’s policies and other factors tending to show whether the employee is treated as a full time employee.


- See more at: http://www.growingfamilybenefits.com/ma_maternity_leave_act/#sthash.LwMgrzWa.dpuf

wallstreetfighter :

The MMLA applies to employers with 6 or more employees. The legal language does not provide a definition of employee, so small businesses that might hire part-time workers need to be careful in following the legal guidelines for eligibility. - See more at: http://www.growingfamilybenefits.com/ma_maternity_leave_act/#sthash.LwMgrzWa.dpuf

wallstreetfighter :

Another option is to have her work for you at the old position, and terminate or reduce her hours after 6 months,

wallstreetfighter :

that way she cannot claim it was due to her leave,

Customer:

So 20 hours could be considered full time in a restaurant? That is what I am confused about. Because technically in a world where 40 hours is full time she is part time...

wallstreetfighter :

The law only requires her to be given the same position as before,

wallstreetfighter :

if she worked 20 hours before, then she would be entitled to 20 hours,

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