Fired while on maternity leave.

[dtiao7eb]

Fairfax, Virginia

Hello all,

my friend has been working @ a restaurant for a few years now, and she recently gave birth to her baby. A month has past since she gave birth, and when she asked to be put back on the schedule, her boss told her she no longer has a job there. Is this legal?

Thanks for the help!

 

[ecmst12]

Depends how many people work there. If less than 50, yes it's legal.

 

[dtiao7eb]

i believe she said the company has 48 people. wow right under the 50 limit.

thanks for your help. I guess i will forward this information to her.

 

[Betty]

We don't have a lot of details here but she can't be discriminated against due to her pregnancy. If she believes she was not offered her job back JUST because she took pregnancy leave, she can file a complaint with the federal EEOC since the employer has at least 15 employees. (The Va. Human Rights Act would not apply - applies to employers with between 5 & 15 employees so she can't file a complaint with the Va. Council on Human Rights.)

Also, the employer doesn't have another restaurant do they? Job protected leave under FMLA applies to employers with 50 or more employees within a 75 mile radius of where the employee works for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The employee would also have had to work at least 1250 hrs. for the employer in the 12 months immediately preceding the leave. (It seems she meets the must have worked for employer at least 1 year requirement.)

Why was she told she no longer had a job there - was she given a reason?

 

[dtiao7eb]

i think the reason was they were fully staffed. or have replaced her position. she was a waitress. she worked until 2 weeks before she was due.

 

[ecmst12]

If the employer is not subject to FMLA, they are allowed to replace her while she is on medical leave. How many employees do they have?

 

[Zigner]

This is not an FMLA matter. See Betty's post above. Under Federal law, pregnancy discrimination laws apply to employers with 15+ employees.

 

[ecmst12]

Doesn't sound like it had anything to do with the pregnancy. They replaced her because she was not able to work for an extended period of time. That's an FMLA matter.

 

[Zigner]

From http://www.eeoc.gov/laws/types/pregnancy.cfm:

Pregnancy Discrimination & Temporary Disability

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Now, upon re-reading, it seems that, if the employer doesn't give leave for other disabled employees, then they wouldn't have to give it to this employee.

 

[FlyingRon]

Unless there policy would have been to fire the temporarily disabled. Then they'd be treating her equally.

 

[cbg]

Neither the PDA, the ADA, or any other law requires that a pregnant woman be given privileges over and above what other employees get. If another similarly situated employee would have been fired, she can be fired. If no other similarly situated employee would have been granted leave, then she is not entitled to leave. The PDA says she has to be treated THE SAME as other employees. Not that she is granted immunity from all types of adverse action when other employees are subject to such action.

 

[Betty]

Agree. She can't be discriminated against due to her pregnancy just as an employee can't be discriminated against due to age, religion, gender or any other reason prohibited by law but she gets no special treatment. She would need to be treated as any other employee with a temporary disability (ie broken leg).