It is extremely common for women on maternity leave to suddenly find out that their company replaced them. Sometimes they even find out from coworkers that they’ve been fired (but the company hasn’t notified them yet).
Is this unlawful? What should you do about it? Do you need a lawyer? This article was written by Branigan Robertson, an employment lawyer in California.
As I started to process the reality of being laid off, I straddled between denial and anger for several days. I had been at my company for six years and seen it grow from a 30-person start-up to a 300-person global brand. It felt like home or at least, my work home. As the company had grown up over the years, so had I. Yet no change was as profound as becoming a mother and I was beyond excited to return to a familiar place as a better version of myself. It was hard to grapple that a place that had been my professional home for so long was not allowing me the opportunity to return.
Losing a job is never an easy experience, toss in a global pandemic, first-time motherhood and you have a cocktail for a lost identity.
The day I was let go was the one-year anniversary of when I started the fertility treatment that got us pregnant. Conceiving was not easy for my husband and me. If I had to choose, I would easily pick 2020 and being laid off with our son rather than 2019 and going through IVF. Infertility has nothing on losing a job—a thought that has kept things in perspective, especially when the world is going through so much.
Am I a stay-at-home mom, a role postpartum has taught me I may not be able to handle?
Eventually, my mind calmed down and I started processing the next step. Updating my resume was a big confidence boost, reaching out to my network and asking about jobs reassured me that if I wanted a place in the working world, I could find one. When my son wakes up in the middle of the night, I remind myself there is nothing more important than being his mom. I know that while this virus has impacted me, there are so many bigger challenges happening in the world. My identity is still evolving, but I’m having more fun now applying to roles and imagining what life may look like down the road for our family.
Answer:
An employer cant fire you because you are taking FMLA leave: That would be retaliation, which is illegal. However, an employer can lay you off or fire you while you are on FMLA leave, if your leave has nothing to do with the termination.
The FMLA gives you the right to be reinstated to your former position (or a comparable one, if that position is no longer available) when your leave is over. However, it doesnt give you any additional rights beyond those you would have had if not for taking FMLA leave. In other words, if your whole department gets laid off while you are out on leave, you dont have a special right to get your job back. This is because you would have been laid off even if you didnt take FMLA leave.
The same is true of firing for cause. There have been a couple of cases in which an employer discovered that an employee had committed serious misconduct only after that employee went out on FMLA leave. In this situation, the employer may fire the employee, even though she is using the FMLA, because the employer has a legitimate and independent reason to end the employment relationship.
In your case, the question is why your position is targeted for layoff. If your position would have been eliminated regardless of your leave, your employer is acting legally. If, however, you are being targeted because of your time off, you may have a legal claim for retaliation under the FMLA. For example, if your employer is targeting employees who are on leave or have recently taken leave, that starts to look a bit fishy. Similarly, if you dont fit the announced layoff criteria, your employers action might be suspicious. For instance, if the company claims to be laying off employees with the least seniority, but it is retaining a number of employees who have less seniority than you, that raises concerns.
An employer can’t fire you because you are taking FMLA leave: That would be retaliation, which is illegal. However, an employer can lay you off or fire you.By
I had a baby four weeks ago. Im using the FMLA for my time off, and I already took a total of two weeks off during my pregnancy, so I have six more weeks of maternity leave. My manager called me today to let me know that the company is conducting layoffs, and my position is likely to be cut. This means I may not have a job to go back to. Can they fire me while Im taking FMLA leave?