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Is this a FMLA/CFRA violation?

Morgan Hill, CA |

I work for a large (over 200 employees) organization. I am a manager. In June I had a baby and while out on maternity leave learned from a colleague that a new manager had been hired. I contacted my HR department to discuss my reinstatement and inquired about the new hire and asked what position I would be returning to. I was informed that my position was being "retitled" and that I would be returning as a lower level staff member, but the only change would be to my title. However, I will no longer have management responsibilities or standing, have been relocated from my office to a cubicle in another building, and have lost advancement opportunities. Is this a FMLA/CFRA violation that I can legally fight?

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Attorney answers 5


Qualified employees who take FMLA/CRFA or maternity leave under the Fair Employment and Housing Act, cannot be discriminated against because of their taking such leave. This means that an employer cannot say they found someone who could do the job better while you were out because you would be at an unfair disadvantage due to your leave. The employer is obligated to reinstate the employee to the same or substantially similar position unless it was unable to do so for legitimate business reasons.

It is not possible to say whether this employer has or will violate your rights as not enough information is known to offer a definitive opinion. For now, you need to decide how you wish to approach this issue with your employer and what your long term objective is with the company. It would help to consult with an experienced employment law attorney who would be in a better position to assess the facts and discuss what options you have available to you.

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.


Notwithstanding your employment rights based on pregnancy, your employer was not required to cause business to come to a standstill and freeze in place pending your return. The legal challenge if you believe that your rights have been violated, then, is to sort out what the employer can likely prove as a legitimate business undertaking -- including re-organization and changes in employee staffing and assignments -- as distinct from actions that are based on employer reaction to your pregnancy.

Of course, inevitably, the employer has an advantage in that contest of proof. The power to make records is an awesome power, all by itself. The fact that the employer hired a new manager and that there is reorganization involving multiple employees (not just you) will ordinarily go along way to support the employer's defense of any changes that affect you. It can be a tough sell to argue that the employer made changes in personnel, suffered the disruption of reorganizing and changes of internal procedures and practices, relocated some employees, redefined/refined operations, and incurred other short-term burdens all as a ruse to enable striking at you.

But, in these battles of proof, the devil will always be in the details. Your only good option is a specific and detailed discussion with a local employment attorney. If you can find one that has specific experience litigating against your employer, that can be an enormous advantage. Good luck to you.

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The other responders have provided very good answers to your question. I will simply add that courts closely scrutinize any circumstance in which an employee is not returned to the same or an equivalent position following FMLA protected leave, and as of the U.S. Supreme Court's ruling in McDonnell Douglas Corp. v. Green, the burden is on the EMPLOYER to demonstrate valid reasons for the change in position. It's always hard to hard the corporate reorganization is a pretense for unlawful retaliation, but this burden-shifting principle certainly makes it a bit easier.

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

Patrick John Phillips

Patrick John Phillips


*"It's always hard to argue that corporate reorganization..."


You have received good responses. I would simply add that same pay is not enough to satisfy the same or similar job requirement for return. Loss of management responsibilities and loss of advancement opportunities are factors that a court can consider when determining whether the employers did as required under the law.

What you are experiencing might be a violation of the FMLA, CFRA, and perhaps even the Pregnancy Discrimination Law and the Fair Employment and Housing Act. These issues are very fact-intensive. You would be well served to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

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.


You are wise to inquire about the possible violation of your legal rights. It is unlawful for a CA employer to discriminate or retaliate against an employee because of her pregnancy or related leave. In addition, FMLA and CFRA require that you be returned to your same or similar position. Call an employment law attorney to discuss. Many offer a free initial phone consultation and may be able to help you at no cost to you.