›

CA Pregnancy Leave - Replace person?

KymmKymm 140 Posts
in HR & Employment Law Vote Up0Vote Down
We have a person currently out on 6 weeks CA pregnancy leave - when that is complete, she will stay out for another 6 weeks or so (Paid FMLA leave - to take care of the newborn) - she is due back in February. Our company is "struggling" right now and we are in the process of doing some layoffs and "restructuring" of positions. Can we fill her vacant position with another employee at this time? We realize that we will have to have a "comparable" position for her when she returns
but I wasn't sure if that "comparable" position can apply for the CA pregnancy leave or if we have to hold her "exact" position open at least the first 6 weeks while she is on the Pregnancy leave..??? What do you think?
Share on Facebook Share on Twitter

Comments

  • 1 Comment sorted by Votes Date Added
  • HR in CAHR in CA 251 Posts
    PMVote Up0Vote Down
    I went through this with the Department of Fair Employment and Housing last year. We began restructuring long before the employee who made the complaint went out on leave (computer automation of the billing processes). We never filled her position, and we eventually received a favorable ruling.

    However during the investigation portion the DFEH spoke with a former employee who after returning from PDL and FMLA stated she was not offered her same position (she requested part time work and her position before she went out on leave was full-time). I spent a week gathering and providing documentation that the "witness" asked for part time work and we complied. However, when she realized part time work meant part time pay. She quickly demanded her old job back. Once again we complied. The DFEH investigator told me the the comparable job must be the same benefits, same pay, same commission, same hours and same location.

    If the person does file a claim, be prepared for the DFEH investigator to strongly push you to make a monitary settlement, to avoid further proceedings. Which means even if the DFEH finds your company did nothing wrong the employee can take you to court for 1 year after the ruling. I have about another 80 days, then the year is over and as of yet, I have heard nothing. So don't be strong armed into paying when you have done nothing wrong. It's nothing more than overworked DFEH workers trying to lighten their load.

    If you feel you can defend moving her to a comparable position, keeping in mind it really has to be as close as possible.
    Share on Facebook Share on Twitter
Sign In or Register to comment.