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Can't my wife get her job back after returning from maternity leave?

Los Angeles, CA |

About two months ago, my wife left her work due to birth of our baby. She wants to return to work but her employer saids he doesn't have to give her job back because he doesn't have 50 employees. I thought the California Pregnancy Leave law required employer to give same or similar position to employee upon return from leave if employer had at least five employees. My wife works in LA. Please help!

Attorney Answers 6


  1. Oh this could be a good case of pregnancy discrimination or sex discrimination. Contact a lawyer immediately for a free consultation. Under Government Code 12940, et. seq. you don't need 50 or more employees. You only need 5 or more. This is a common mistake employers make.

    Lawyers will take these types of cases on a contingency fee (meaning they don't get paid unless they win)

    Best of luck.


  2. More will need to be known to answer the question. The employer, however, seems to be looking at the situation with a limited perspective of the Family Medical Leave Act. That is not the only statutory scheme that applies. As long as the employer has at least 5 employees, the Fair Employment and Housing Act will apply, and the California Pregnancy Disability Leave law has the same employer size requirement. The size of the employer, the nature of your wife's job, notices given or not given and many other facts need to be explored.

    It is therefore important that your wife locate and consult with an experienced employment law attorney as soon as possible to explore her facts and determine her options. I would suggest she look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Most employment attorneys who practice this area of law work on a contingency basis, meaning your wife can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. She should not let fear of fees and costs keep her from finding a good attorney.

    Good luck to you and to her.

    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.


  3. You have already received two good responses. I concur with my colleagues that your wife should consult with an employment attorney for a free consultation. Many employers are not familiar with all of the statutory protections for leave relating to childbirth. There are also provisions prohibiting discrimination because of someone's pregnancy. Good luck.


  4. The employer is mistaken. Only 5 employees are required to be covered by California's Fair Employment And Housing Act. (The Family Medical Leave Act and the California Family Rights Act requires 50 employees within 75 miles). You should contact an employment lawyer for a free consultation.


  5. FMLA or CFRA (the Calif. equivalent) only applies to employers of 50 or more employees. However, the CA Pregnancy DISABILITY Leave Law applies to employers of 5 or more and requires an employer to return the employee to her position or an equivalent position if she was disabled BECAUSE of her pregnancy. That law provides up to 4 months of protected leave. In addition, as others have stated, CA Fair Employment and Housing Act (FEHA) applies to employers with 5 or more employees and protects a pregnant employee from being discriminated against BECAUSE of her gender, including pregnancy. Have your wife call an employment law attorney to discuss. Many of us offer a free phone consultation.


  6. Your wife’s employer seems to be mistaken as to California law regarding pregnancy leave. While it is true that an employer must have 50 employees in order to fall under the purview of the CFRA and FMLA, an employer need only employ 5 employees to fall under the Fair Employment and Housing Act. Your wife should contact an experienced employment law attorney to discuss this situation.

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