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My manager considered me "Not Eligible for REhire" after maternity leave??

Fort Lauderdale, FL |

Once my FMLA leave was exhausted the company I worked for provided an addition 3 months of Bonding Time w/Baby. I decided to take upon the addition three months w/ my managers consent.When I wanted to return to work I was told by my manager that I had no position available & to reapply online.She knowingly knew I was searching for work but with no current job openings in my field of work I decided to apply for unemployment in the meanwhile. 6 months have passed & I've applied numerously to return back to my job & position & no calls. I reached out to HR & was told my manager considered me NOT ELIGIBLE FOR REHIRE. Upon my consent and acknowledgment I was not guilty of doing anything to be considered under this category. I have no idea what to!!! Is there anything I can do legally?

*Once the 3 Months of Bonding Time w/ Baby were over, HR required you contact them and manager to consider when you can go back to work. Because my manager did not take me back and no one was calling me for a rehire, I was considered through HR as voluntarily resignation. (During this period I was applying for my position, I never resigned.)

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Attorney answers 3


Under federal law, it is illegal to make decisions affecting the terms and conditions of employment based on pregnancy. If the employer was indicating that you were "not eligible for rehire" and it was motivated to do so because of your pregnancy, that could conceivably give rise to a claim for pregnancy discrimination.

In your case, it would appear that the claim would be discrimination on your status as a new applicant. In other words, after the expiration of your FMLA leave, plus the additional three months of the gratuitously leave, your employment separated and you applied for unemployment benefits. Due to the length of time that passed between your pregnancy and due to the fact that the employer did give you all of your FMLA leave plus an additional three months, I believe it will be tough to make a claim for some type of constructive discharge or job loss as a result of the pregnancy. However, again, to the extent you became an applicant, it would be unlawful to discriminate against as an applicant due to a prior pregnancy.

Of course, the problem that you and other victims of discrimination have is one of proof. That is, you would have to prove that you applied for the position and you were denied because of your prior pregnancy. At some point, the employer would have to explain why it indicated that you were "not eligible for rehire".

In a pregnancy discrimination claim, the employee must first file a charge of discrimination with the EEOC. You should contact an attorney directly or, if you are unable to retain an attorney, you can visit the EEOC website and complete a charge of discrimination online.


Nothing in your summary of facts here supports a deduction that the decision not to rehire you is based on your pregnancy or your use of FMLA time. If you believe that to be the case, you will need evidence sufficient to raise an inference of that basis for the employer's decision. The employer does not have an obligation to articulate a legal basis for holding you ineligible for rehire unless and until that inference is sufficiently established by legally admissible evidence.

My experience is that establishing the inference that requires an employer statement of reason will be very difficult here but, in all events, the challenge is in analyzing the statistics re others who the employer hired, refused to hire, and holds as ineligible for rehire based on using FMLA for pregnancy. The statistics will inevitably tell the tale. If the employer has hired others who have used FMLA time for pregnancy, it will be exceedingly difficult for you to prove that is the employer's unlawful basis for the decision not to rehire you. If other users of FMLA time for pregnancy have been similarly classified as ineligible for re-hire, you may have a sound claim.

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From your summary, it appears your employer gave you the full 12 weeks of FMLA leave, plus an additional 12 weeks for "Bonding Time w/ Baby". Once you used your allotted FMLA leave, your employer does not have any legal obligation to hold your job for you. Additionally, it seems as though you were looking for a new job and your boss knew that as well. That may be a factor in not having a job for you upon finishing your leave. More facts would have to be developed re: your "Not eligible for rehire" status.