Poor economy dictates downsizing? You can fire employee who takes pregnancy leave

Generally, women who take maternity leave are entitled to return to their jobs under the FMLA or the California Fair Employment and Housing Act (FEHA). But that right has limits. Employers experiencing economic difficulties, for example, can cut positions if need be and not worry that it cost the job of an employee who was out on maternity leave.

But beware! If the decision to cut the employee was based on her having taken leave, she can sue.

Make sure you can show why the job was eliminated and why the employee on leave was the one who was terminated. Do that, for example, by showing that she was the last one hired and that you reasonably kept other employees who had worked for the company longer. That’s a legitimate employer policy based on seniority, not discrimination against new mothers.

Recent case: About a month after being hired as a full-time receptionist at a plastic surgery medical practice, Dayna became pregnant. She continued working until the day she gave birth. Then she went out on 12 weeks of maternity leave. Her employer had just 11 employees.

Apparently during the recession, fewer Californians decided to have plastic surgery. As a result, the practice concluded it had to cut staff. Because it already had a backup re­­ceptionist, it decided to eliminate Dayna’s job. The office manager told her that she was being cut because “economic times” had caused a “decline in the practice.” She was the last employee hired.

Dayna sued, alleging that she was entitled to reinstatement under FEHA. Her argument was that it was illegal for the practice to terminate her because her job wasn’t really eliminated. She said the duties had merely been shifted to someone else.

The court disagreed and dismissed her case. It reasoned that FEHA allows employers to cut employees on maternity leave for a number of reasons—including economic conditions—as long as the move isn’t related to pregnancy or leave. In this case, since Dayna was the last person hired and another employee could take over her position as a cost-­cutting move, the practice was within its rights to terminate her. (Christine-Derry v. Renuance Aesthetic Care, et al., No. E053915, Court of Appeal of California, 4th Appellate District, 2012)

How California law treats pregnancy leave, reinstatement

California has specific rules that spell out an employee’s right to reinstatement following pregnancy leave, as well as the employer’s obligation to notify the employee of those rights. The regulations governing pregnancy leave in California require employers to “guarantee to reinstate the employee to the same position or … to a comparable position and shall provide the guarantee in writing upon request of the employee.”

The guarantee must be honored unless the employee would not otherwise have been employed in her same position for legitimate business reasons unrelated to taking pregnancy disability leave.

If the employer says it can’t reinstate the employee because of declining business, then it’s up to the employee to show either that the economic argument is bogus or that her job was actually eliminated because she took leave. That’s hard to do, especially if she was the last one hired.