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Can I be laid off or demoted after maternity leave?

Redondo Beach, CA |

I am the general manager of a restaurant. I have been there just under a year. I went on maternity leave in October, and since then, owner's have decided to sell the store. They want to offer me a SERVING position to tide me over. I prefer collecting unemployment, as serving will not even supplement a small portion of what I WAS making. How do I go about this?

Attorney Answers 3


  1. Generally, women who take time off for maternity leave under state law, must be returned to the same position they held before they went out on leave, unless the position as legitimately been eliminated. It is not clear from your post, why you cannot return as the general manager if the business has not yet been sold. If the business was sold, there would be different facts to consider, such as who is now running the business and whether they have committed to retain all of the current employees.

    As for the EDD, it could be a problem for you if you are offered a job and you turn it down, even though it is a demotion and pays less. The EDD may take the position it is better to have a job than no job. The pay reduction would have to be very drastic.

    I think you should press the current owners about why you cannot return to your job as the GM when you are ready to return to work. If you are not satisfied with the response, consult with an experienced employment law attorney to discuss your rights and options.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


  2. Are you aware of your right to California paid family leave?
    See: http://www.paidfamilyleave.org/
    This is not the question you are asking, but it may help you know what to do. If you turn down employment, you may lose your right to collect unemployment.


  3. With few exceptions, you generally have the right to your previous job when you return from pregnancy leave. Is the selling owner still in control? If so, you must get your job back.

    Whether the new owner must honor that legal obligation depends, in part, on what the buy-sell agreement says. Most business sales only include a sale of specific assets but not an assumption of any liabilities. Successor liability is a complicated issue, so I won't get into it in detail.

    Whether you can get unemployment depends on the position offered and the wage cut. You can go online at the EDD and look at what the cases say.

    Call one of us lawyers on AVVO.com or celaweb.org if you need help.

    http://www.cuiab.ca.gov/Board/precedentDecisions/index.asp

    David Mallen
    310.895.0107

    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.

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