Legal Question in Medical Leave in Maryland

Re: maternity leave and job elimination

First, congratulations! I hope your baby has a long, happy, and healthy life.

Turning to your wife, she is protected by the FMLA, regardless of whether she specifically asked for it to apply to her leave, if the employer is big enough to be covered by the law. They must have at least 50 employees.

Assuming they do, then they could only refuse to return your wife to her same position, or an equivalent one, if the position would have been eliminated anyway. This is because the law does not entitle an employee to anything she would not have otherwise received. In other words, if the job would have been eliminated and she would have been laid off anyway, the law does not entitle her to return just because she was on FMLA leave. (This is a difficult standard for the employer, though, so your wife at least has an argument that she has been wrongfully terminated.)

The question, then, is whether this is a real elimination? Has she been replaced? Has the job simply been renamed? Are the duties entirely gone? Is someone else doing the job as part of their regular job? Those are the type of questions that would help determine whether the elimination is real, or just a pretext.

As for the severance, it is a generous offer (judging by today's standards), assuming the employer's action is legal (which we can not know at this point since we don't know the answers to the above questions).

Your wife would also be able to collect unemployment, assuming she is ready, willing and able to work, because this would be a layoff.

(The severance is an offset against the unemployment if she accepts it.)

I can't advise you what to do since more info is needed. If you want, please feel free to call for a free consultation to review more of the details. If I can advise you at that point, I will. If I beleive you need an attorney, I will advise you of that as well.

One thing I can say is that if this experience has made your wife believe she would not want to return to this employer, then take the money and run. It's far better to take the severance (and unemployment), then try to fight them in court for a long time.

One other option. You can contact the US Dept. of Labor, through which you could file an FMLA complaint for free. Their website has lots of info on the FMLA and labor laws, and they might be able to answer some questions for you. Their info is:www.dol.gov; 866.487.2365.

Best of luck to you both.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

6932 Mayfair Road

Laurel, MD 20707

301.604.2497

fax: 301.776.3954

[email protected]

http://www.SheldonLawFirm.com

Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.