Skip to main content

After returning from maternity leave my manager scheduled me all closing shifts 11pm. Is this retaliation/negative action?

Clovis, CA |

My manager and I do not have a good relationship due to a past experience in which he reprimanded me while I was on lunch in front of my fellow co-workers. I called HR and they handled the situation in my favor. Shortly thereafter, I began my maternity leave. Upon returning from leave the assistant manager scheduled my wok shifts during the day. Now when my manager wrote the schedule he scheduled me all closing shifts while other co-workers had earlier day shifts. Now if he had scheduled me one late shift I would not have thought anything, but all late night shifts. His action just made me think there was something else at play. Any feedback would be greatly appreciated.

Attorney Answers 4

Posted

Perhaps there is retaliation for maternity leave, but it's hard to say because your HR report and maternity leave happened close together. It sounds more like your manager is upset with you because of your report to HR. If that report had been some time before your maternity leave and there were no changes to your shift until after maternity leave, it would sound more like discrimination or retaliation.

Generally, 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.

Nothing stops you from trying to talk to your boss about the scheduling and trying to work things out or even talking to HR again. But if it is true that your manager is striking out at you for your first HR report, he may retaliate against you again for the second report. This kind of retaliation is not protected by law because it is not based on a protected category, as described above.

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 you can resolve your situation and wish you the best.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

Mark as helpful

5 lawyers agree

Posted

I think there would need to be more facts to suggest some kind of retaliation for taking maternity leave because of the very close proximity in time to the HR reporting incident. Retaliating for taking maternity leave is unlawful. Retaliating for reporting to HR about bad people skills or management is not unlawful.

If you have other circumstantial evidence of this manager's dislike for new moms or people who take leave, or pregnant women in general, then you should consult with an employment attorney to discuss a possible retaliation claim. Otherwise, you might try reporting to HR. While the law makes only certain bad management unlawful, many times companies have stricter policies and procedures aimed at protecting their human resources.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

Mark as helpful

3 lawyers agree

Posted

Generally, when you take maternity leave, you are entitled to your previous job. New regulations on pregnancy discrimination give employees more protection.

Click here for more information.

http://www.dfeh.ca.gov/FairEmploymentAndHousingCounsel.htm

If push comes to shove, and you have a good claim for your old job, you may want to talk to a lawyer and consider the option of putting your complaints in writing. It would be illegal to retaliate against a new mother for standing up to defend her right to reinstatement to her job.

David Mallen

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

Mark as helpful

2 lawyers agree

Posted

Government Code section 12945 requires that employees returning from maternity leave be reinstated to their former position. Period. If that position no longer exists, then a similar position. This is not a matter of preference for the employer, it is mandatory. It appears that your employer is oblivious of the law, and has a very serious legal problem before we even examine the change in hours. By giving you a shift starting at 11 p.m., it appears that the employer is retaliating against you, which forms the basis of an independent lawsuit for retaliation, and exposes the employer to punitive damages and big stakes poker, generally. It your employer had any idea of the legal exposure these acts have invoked, it would never allow these blatant violations of law to occur. My advice: get the best plaintiff's employment lawyer you can find.

Mark as helpful

1 lawyer agrees

Employment topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics