can i be demoted and my work schedule changed after returning to work after fmla maternity leave

Prior to leaving on maternity leave I asked my boss if I was not being hired full time due to me being pregnant. I asked because I have been with this department for many years, and people with only months on were continually being hired. Despite getting satisfactory evaluations from my immediate supervisors, I was still being passed over for a permanent position. I was never given a direct answer as to why I was not being hired until i asked if it was due to me being pregnant. Suddenly my training file was incomplete. Although several other coworkers had the same training gap and was hired full time. Once I returned from FMLA leave I was told I was going to a night shift with 4 days notice and I would be a trainee again. I would have to redo training that I already completed, a three month process. Although my pay rate would remain the same, I am demoted in rank, privileges, over time and humiliation of redoing training as if I was incompetent. This also passes me over again for being hired full time.

2 answers  |  asked Sep 9, 2014 10:46 PM [EST]  |  applies to California

Answers (2)

George Allen
Ms. Spencer provided you with lots of good information. You can think about your question this way: "can I be demoted and my work schedule changed BECAUSE I took maternity leave?" The answer to that question is no, they can't. Some of the history you mention suggests that they may have taken these actions because of your maternity leave, and some of the history suggests otherwise. I'd suggest you review the situation with an experienced employment lawyer. Try the "Find a CELA member" tool at www.cela.org. Good luck to you.

posted by George Allen  |  Sep 10, 2014 11:03 AM [EST]
Marilynn Mika Spencer
First, congratulations on your growing family. It's unfortunate that this happy time is soured by your workplace problems.

Your post raises two issues. The first is your employer's failure to hire or promote you to a full-time, better job. Unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

You asked if you were not being given a full-time position due to your pregnancy. Evidently that is not the reason because certainly, since you worked at this job for many years, you were not pregnant throughout your employment. You may never learn why you are not being promoted into the full-time position. For whatever reason, this employer has decided you should not be bumped higher. It looks like your opportunities with this employer are limited. Given this, I hope you are looking for another job where your services are better appreciated.

The second issue is whether you were discriminated against because of your pregnancy; included in this is whether your taking FMLA played a part. Pregnancy discrimination is unlawful under California and federal law.

FEDERAL RIGHTS: In 1978, Congress amended the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, by passing the Pregnancy Discrimination Act.

Under the Pregnancy Discrimination Act, "discrimination" means to treat a pregnant employee differently from non-pregnant employees, and adversely. The employee must be able to make a connection between the discriminatory treatment and the protected status (being pregnant). In other words, the employee will have to show that her pregnancy is reason the employer is treating her adversely. There are various ways to do this. Negative comments from supervisors or management; a sudden change in treatment (for the worse) as soon as or shortly after the employer learns about the pregnancy or the effects of pregnancy; or other incriminating conduct. Note it is not unlawful for an employer to apply the same leave of absence policy to pregnant and non-pregnant employees.

In your case, given the close time between your return from leave and your reassignment to a less attractive position, you have good reason to suspect that your pregnancy or FMLA leave played a part in the employer's decision. If so, it would most likely be illegal discrimination.

For information on pregnancy discrimination, see:
http://eeoc.gov/laws/types/pregnancy.cfm

For information on the Pregnancy Discrimination Act, see:
http://eeoc.gov/laws/statutes/pregnancy.cfm

This law is enforced by the Equal Employment Opportunity Commission (EEOC). www.EEOC.gov

Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical conditions is governed by the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA), just like leave for any other “serious health condition” of an employee. See my guide to the FMLA for more information: http://www.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat

CALIFORNIA RIGHTS: California employers must comply with federal law, as above, and also must comply with state law. The California pregnancy disability leave law, Government Code section 12945(a) (PDLL), is part of the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). The PDLL requires employers to provide employees up to four months of unpaid leave for disability caused by pregnancy, childbirth or a related medical conditions, and to do so without any negative consequences.

Under some circumstances, an employer may be required to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job. These circumstances do not appear relevant to your situation, going only on the limited information provided in your post.

California has its own family and medical leave law, the California Family Rights Act, Government Code section 12945.2 (CFRA). It is substantially similar to the FMLA, but an employee's incapacity due to pregnancy, childbirth or related medical condition is not included in the definition of “serious health condition.” This is usually beneficial to the employee because CFRA leave and pregnancy disability leave are two separate and distinct rights under California law. They do NOT run concurrently, as they do under the FMLA. Instead, an employee in California may take four months of PDLL plus 12 weeks of family leave, provided of course that the employee meets the other conditions of these laws.

Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&permalink=what-is-unlawful-employment-discrimination--california-law which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits.

Given the timing of the demotion and your previous satisfactory reviews, it makes sense for you to speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. Employment law is complicated and fact specific, so you cannot rely on any responses you receive here on MEL. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I hope there is a good resolution to this situation.

posted by Marilynn Mika Spencer  |  Sep 10, 2014 04:59 AM [EST]

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