Skip to main content

I am on maternity leave, and was just laid off. I went on leave 12/19/13 and was due to go back to work 3/31/14.

Temple City, CA |

Is this legal? Do I have a case in court? I was the only person laid off, and was told by my boss that my job was "eliminated". She also told me she didn't think I could return to work and be able to "handle it" after having a child, and that she didn't want to "have to fire me". This woman convinced me to leave my previous job to come work for her, as she needed a manager and promised to promote me to that position, which she did do. She even told me she was going to give me a raise before I left on leave, but never did. I was working for the company from 6/05/13 until today, 3/26/14.

Attorney Answers 8


  1. This is a great potential case and you should contact a lawyer immediately. An employer can't terminate someone on maternity leave. This needs to be explored further but almost all attorneys will take this case on a contingency fee basis. Meaning you don't pay until you win. Get in touch with a lawyer right away.

    Best of luck.


  2. You should definitely consult with an employment attorney in your area for a free consultation. Employees on maternity leave have certain rights and protections depending on the size of the employer, the length of leave, etc.


  3. There are certain requirements to be eligible for FMLA or CFRA, including that you have to have been employed for 12 months, you have to have worked at least 1200+ hours over the prior 12 months, and your employer has to employ a minimum number of people. Once qualified, you are entitled to only 12 weeks of protected leave, meaning your employer has to keep your job open unless it is legitimately eliminated. Your employer cannot hire someone else into the position, but can have a legitimate layoff.

    In your case, you were not employed at least 12 months and your leave was for longer than 12 weeks. So you likely do not have a claim for violation of leave laws. However, you may have, among other claims, a pregnancy / disability discrimination claim or a claim for retaliation for taking leave. The fact that you were the only one laid off and your employer mentioned your inability to handle work with a child seems improper. Definitely speak to an attorney. Many will provide free consultations.

    The answer provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter. Neither the transmission of the information contained in this answer nor your use of the information creates an attorney-client relationship between you and Pierce & Shearer LLP. An attorney-client relationship can only be created by the mutual assent of both parties and only after a consultation. Pierce & Shearer LLP cannot agree to be retained as counsel until a conflict-of-interest check is completed and a written engagement and fee agreement provided by Pierce & Shearer LLP is signed by you and a Pierce & Shearer LLP attorney.


  4. You have direct evidence of discriminatory intent based on your bosses statement. This is very helpful and you appear to have a strong prima facie case of discrimination. As a result, your employer would have to a legitimate business reason such as elimination of your position for business reasons. Typically, the employer would need to show some documentation that the process of consideration began before they learned of your pregnancy. You should definitely speak with an employment attorney as soon as possible. Most of us provide a free consultation.


  5. It is illegal to fire someone because they took maternity leave. This violates any number of laws, including the Pregnancy Discrimination Act, as well as the California Family Rights Act.

    It is *not* true, however, that it is illegal to fire someone who is maternity leave. The correct statement is that it is illegal to fire someone *because* they took maternity leave. The burden will be on you to prove that the leave was the real reason for the termination.

    You have good, direct evidence of the illegal reason through your boss's statement that she didn't think you would be able to handle it after having a child. That statement alone should be enough to get you to a jury.

    Violations of these laws can result in extreme damages, including back pay, front pay, emotional distress, attorney's fees, and in rare cases punitive damages.

    If you believe that you were fired illegally, and you decide to take legal action, make sure to do so before your statute of limitations expires.

    I hope this information is helpful to you.

    Sincerely,
    Craig T. Byrnes

    Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.


  6. Congratulations on your new sweet baby. There are many laws, especially in Calif., which protect pregnant employees. You may very well have a strong case against your former employer for gender discrimination and possibly a violation of your rights due to giving birth. Call an employment law attorney who has handled numerous pregnancy/gender discrimination and FMLA leave cases. Many of us offer a free phone consultation and may be able to represent you at no cost to you.


  7. In addition to the excellent suggestions by my colleagues, I add that you might keep an eye open for evidence that your job was not in fact eliminated; I.e., advertisements to rehire for your position.

    This answer is not a substitute for legal advice and it does not create an attorney-client relationship.  Seek the advice of a licensed attorney before taking any action that may affect your rights


  8. In California, while an employer is not prohibited from terminating an employee who has taken maternity leave, that employer is prohibited from terminating that employee because she has taken maternity leave. The facts you provide here tend to support the conclusion that, in terminating you, your employer may have been motivated by your pregnancy. You should contact an experienced employment law attorney who will help you in filing a potential wrongful termination/pregnancy discrimination claim against your former employer.

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