Can i be demoted due to me not being able to work certain days out the week because having a newborn baby? Or can an employer give an employee my position after coming back from maternity leave?

Im an assistant manager at a small office of less than 50 employees. Im not sure on how maternity leave work and neither does my general manager knows when i ask him. From my understanding is that if an employer has more than 50 employees than im protected by fmla, but what if employer has less than 50 employees does that mean were not protected or are there other laws that do protect us? I ask because before going on maternity leave from work i was experiencing difficulties at my job where i felt my bosses were trying to make me quit my job by adding more work on top of what i do after having a conversation about me being overwhelmed and i was in my last month of pregnancy. Also felt very out of place and uncomftable because there would be times where my bosses will go into meetings and not include me. They would hire new people and not tell me anything about it until the day i have to train them when before i use to be part of the hiring process. Never been through any situation like this while being pregnant and i felt very alone, clueless, and scared that i might be losing my job. Before going on maternity leave i had asked my general manager if i will have my job when i get back and he told me yes. My general manager texted me to ask me when i will be returning to work and i told him what day. I also informed him that because i have no one to watch my kids i would not be able to work two certain days out the week. He then tried to give me a schedule ive never worked before and i couldnt do anyways. When i told him i couldnt i didnt get a response back from him and its going on a few weeks now with no response. Just recently i was informed by one of my coworkers that another coworker of mine is getting a promotion and they think its for my position. I have one week left of maternity leave and then its back to work, thats if i have a job when i get back. Dont know what to do!! Can i get demoted from my employer or even fired. Should i be applying for FMLA even though my company does not have more than 50 employees?

1 answer  |  asked Aug 3, 2016 7:43 PM [EST]  |  applies to New York

Answers (1)

V Jonas Urba
Generally, child care, unless medically necessary for a disabled child as confirmed by a medical expert, is not an employer's responsibility. Unfortunately, many European countries and others around the world do provide much more leave and accommodation for parents to care for their kids than we do here in the U.S.A.

Even if your employer had 50 employees the FMLA would only permit up to 12 weeks of unpaid leave for child birth or to care for a newborn child. Not much and it's not paid unless you have accumulated vacation time. Such leave would not authorize you to continue to care for the child as your schedule requires unless you had a child with a disability and the caregiver duties you provided were ordered by a physician.

The Americans with Disabilities Act also usually does not cover pregnant employees UNLESS the pregnant employee is a qualified individual with a disability AND the employee has informed her employer that she has a medically documented condition which substantially limits a major life activity. One such condition might be diabetes during pregnancy but there are others. The key is that you have to tell your employer and the employer can require medical certification or confirmation that you have such a condition and that you are requesting an accommodation from your employer similar to the disabled child example given earlier.

Without a written contract of employment or a union to provide some additional protections, as long as you are not being treated differently for an illegal reason your employer may require you to work whatever shifts it needs. However, if women, older, or disabled persons have to work the worst shifts that no one else wants to work that could be discriminatory.

Consult with a labor and employment lawyer. It's worth it so that you know for sure whether you should just live with it, whether you should start looking for another job, or whether you with the help of a lawyer should file some type of discrimination complaint or charge. There may be facts which a lawyer will spot since it looks like you live in one of NYC's boroughs and the City Human Rights Laws are pretty broad.

You can also contact the New York City Human Rights Commission and if there is a claim to be made they will help you. And many private lawyers work with the City Human Rights Commission and its lawyers because if our clients win their cases the Human Rights Commission lawyers have no objection to our working with them to prosecute cases against employers. If a client is awarded damages to be paid by an employer the private attorney for that client can ask for an award of attorney's fees to also be paid by the employer. So it works out great for everyone. Good luck.

posted by V Jonas Urba  |  Aug 4, 2016 2:25 PM [EST]

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