returning only to be laid off? CA

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returning only to be laid off? CA

Post  Alynn on Wed Sep 24, 2008 2:05 am

I actually work for a small company run out of Maryland. This company is a subcontractor for a major architectural firm. So they place me in the CA offices of this major consulting firm--but I am technically an employee of the small company in Maryland.

About the time that I went on maternity leave, the firm that I am subcontracted out to began to falter. The office I work at has laid off several people. While I was on maternity leave, Jim my superior at the architectural firm contacted me and told me that there would not be a job for me when I returned.

We had a talk about the necessity of keeping a job for people on maternity leave, and the company changed their minds and called in a few days ago saying that I could start back Oct 15. BUT--I am going to be in a totally different department, working for a boss who is known to be a nightmare--and the kicker is that I will be on probation for 3 months (I have never been on probation there before).

I fear that they did not want to dump me while I was on maternity leave--so they are making a show of bringing me back. Once I return is my job safe? Or can they legally keep me a month, make a show of letting me come back after maternity leave--and then dump me?

Also--if they do dump me--where do I apply for unemployment benefits? My actual employer is not located in California--am I eligible for benefits in Ca--or do I have to apply in Maryland?

Alynn

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Re: returning only to be laid off? CA

Post  JoeC (McGruff) on Wed Sep 24, 2008 2:30 am

It appears Ca has Jurisdiction since that is where you are employed. Ca has more favorable laws as well. Under F.M.L.A you should be returned to the same or similar position you had prior to the leave.

If the employer removes or change the job for legitimate business reason the law allows for that. Nothing in the code covers who your supervisor will be upon the return. You should not have to be a probationary employee unless every transfered employee is put in a probationary status.

Ca has state laws dealing with pregnancy as well,and hopefully another poster will elaborate on that.

http://www.arkadylaw.com/1/category/pregnancy%20leave/1.html

The feral law is the Pregnancy Discrimination Act. A little history the Pregnancy Discrimination Act was a direct result of Congress' "disapproval of both the holding and reasoning of the Court in the Gilbert decision. 42 U.S.C. 2000e(k). See Newport News Shipbuilding and Dry Dock Co. v. EEOC 462 U.S. 669, 678 (1983)

Under the P.D.A an employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.

Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

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Re: returning only to be laid off? CA

Post  Alynn on Wed Sep 24, 2008 2:51 am

this is extremely helpful--and confirms my concerns about being on probation. No other employee there has ever been treated like this before. I am going to see how it goes--but I honestly fear they want to get rid of me (the office is struggling financially).

If they do lay me off--am I eligible for unemployment benefits in Ca? I doubt anyone is paying in for me....

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Re: returning only to be laid off? CA

Post  JoeC (McGruff) on Wed Sep 24, 2008 2:53 am

Oh yes you would be eligible for unemployment. If you have enough qualifying hours,and you can apply on line. Start here and follow the instructions https://eapply4ui.edd.ca.gov/
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Re: returning only to be laid off? CA

Post  Alynn on Wed Sep 24, 2008 3:20 am

thank you so much!

I feel a lot better knowing --

1--this probation thing is wrong--it felt really ridiculous but I wasn't sure.

and

2--if they do try to get rid of me--at least I can get unemployment benefits.

(normally it wouldn't be such a worry--but recently jobs are drying up -- everyone is worried about the economy and nervous)

I am so grateful that I got such great help and so quickly! It has given me some peace of mind....now I just have to wait and see what my employer does.

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Re: returning only to be laid off? CA

Post  bears00 on Wed Sep 24, 2008 3:28 am

You do have to be returned to the same or an equivalent position. I fail to see how it would be equivalent to bring you back "on probation." That makes about as much sense as drilling a hole in your head.

Beware though. Your company might very well try to make the argument that your position would have been eliminated DESPITE your maternity leave---which is legal.
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