Legal Question in Employment Law in California
Fired during 8th of pregnancy..do I have a case?
I was a contract employee through a temp agency. When the new boss was hired in early November 2009, she kept on referring to be as a "short timer" since I am obviously pregnant. Management also kept asking me when my last day worked would be. I told them I don't know. Eventually, my doctor was able to confirm my first day of leave would be in early January since I had a healthy pregnancy and was due in late January. When I told them that my doctor would not put me out on leave until 1.5.2010, they stated that this was a financial bind for this major retailer's and I was told on 12.15.09 that 12.18.2009 was my last day with the company. I find it interesting that they had just promoted about 4 people in my department the week prior. Additionally, they kept my replacement and she still works there. I was never written up nor had excessive absences. I have been depressed ever since the lay off and currently seeking counseling for post-partum depression.
The impact is devasting since I was let go right before going on leave and the Christmas holidays. I wish they gave me advanced warning. I also found out that I have another waiting period for disability pay and now my disability pay will be taxed since I have to file for unemployment first. If they waited until 1.5.2010, I would not have to pay taxes on my disability pay.
Do I have a case?
2 Answers from Attorneys
If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, or you are refused accommodation, then you can consider legal claims.
If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, and must allow up to 4 months of unpaid pregnancy leave under FEHA.
If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA maternity / medical leave when you are unable to work [or must care for an immediate family member] because of a �serious health condition� that is properly confirmed and documented by your doctor, continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider.
If you qualify for both, you get both. If you are out longer than those guarantees, they can fire you.
If your company has a policy requiring they hold your job for you for a specific period of time while on disability, that is enforceable.
Overriding those stated protections, just because you are on leave does not mean you can�t be terminated. You have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA leave person, as long as they can show they aren�t targeting �because of the leave�. They are simply risking claims if they do.
Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.
As a contract worker, your employer is the agency, so the rules would have to be applied to both. You can try to file a complaint with the Department of Fair Employment and Housing local to you, and if they accept your complaint for filing, then you can pursue a lawsuit.
Now, if they violated those rules, and DFEH allows your complaint, please contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.
Pregnancy is a form of disability and an employer must reasonably accommodate an employee. Thus, you would potentially have a wrongful termination based upon disability discrimination case. You should consider consulting an attorney or check out the CELA (California Employment Lawyers Association) website. I hope this helps. Bob
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