Being Fired While on Maternity Leave

Updated on February 21, 2008
R.W. asks from Coal City, IL
8 answers

I was wondering if anyone has ever been fired while on maternity leave. I don't know if what my employer did was illegal or just unethical. I started my maternity leave on 12/3/07 ( the same day my daughter was born) and my supervisor was well aware that I would be returning to work. I went to my office in January, before I had been released back to work and told her again, when she asked me, that I would be returning to work. My supervisor told me to take my time, her exact words and let her know when I would be returning. On February 13 I received a letter stating they were no longer able to hold my position. Because my company had less than 50 employees, I don't know if they are only required to give me 8 weeks or if I get 12 weeks no matter what. I had a c-section by the way and my daughter was diagnosed with a contagious disease at 8 weeks that would have prevented me from returning to work at 8 weeks anyways because she wouldn't have been able to go to daycare. My employer was well aware that I would not be returning in 8 weeks and never required me to submit anything in writing, nor did they warn me that if I didn't return in 8 weeks I would lose my job. Any advice or help would be appreciated!! Thanks!

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answers from Chicago on

I don't think they can fire you. You can call the illinois dept of labor and they will help you out free of charge and can let you know if you need an attorney or not. Good luck..

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answers from Chicago on

Since your company had less than 50 employees, they are not required by the Federal Law to offer you any kind of maternity leave. Really sorry to hear of your situation.... us new moms really get a crappy deal! I hope one day it's changed!

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answers from Chicago on

Hi R.,

I'm so sorry that you are in such a terrible situation! I'm currently unemployed and pregnant so I kind of feel your pain.

Since your company has under 50 employees, they aren't actually required to allow any maternity leave at all. It all depends on if there is a policy/employee handbook and how they have treated other employees who were on maternity leave in the past. If you have an employee handbook, read the policy on maternity leave and see if they broke their policy. If there is no policy in place, check with others (if any) that have been on maternity leave to see how the company treated their case. If you were treated differently than others, or if the company did not follow the policy in the handbook, you would have a case.

Good luck! Congratulations on your baby and I hope it all works out.

L. G.

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answers from Chicago on

They aren't required to give you anything if it's under 50 employees. FMLA does not apply. And there are no blanket national requirements for maternity leave.

Additionally, FMLA is intended for them to hold "a" position for you at the company upon returning, not specifically the one you left for leave.

Irregardless, if it is under 50 employees, unfortunately you aren't entitled to anything under federal law or FMLA.

You might, however, be able to get something if you turn it into a disability type thing though. ie, discrimination firing, if you filed for short term disability while you were out.

That is pretty crappy that you have to deal with this, though what I would take from it is to get everything in writing - because the only person looking out for you, is you.

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answers from Chicago on

Unfortunately, FMLA does not apply unless your company has more than 50 employees, so legally they can do that. Ethically, that was really crappy of them, but they seem to have no problem with it. The law states that companies with 50 employees or more are required to give at 12 weeks leave per year for an employee with at least 12 months of service.....but if your employer is smaller than that, there is no law to protect you.

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answers from Chicago on

Go to the EEOC to file a complaint, it is free and will advise you on what your options are and if your employer was at fault or not. They have an office located downtown. Save all of your documentation, etc to show to them. Good luck!

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answers from Chicago on

I too lost my job, both times after having my baby. The first time was because I could not return to work in the time that I needed to because I had a sick child and the second was because they terminated my position while I was under FMLA.

Given that your company had less than 50 employees, they are not required by the Federal Law to offer you any kind of maternity leave. That they gave you what they did is pretty nice but every company, especially smaller companies, have to keep business moving and with your baby being sick, I am guessing that they had to just move forward. It stinks and seems unfair but business has to press on.

Where they went wrong was not informing you of their process or providing you with detailed information on when you need to return to work. My first employer did just that. They sent me a letter apologizing about my situation and telling me a date/ time that I would need to report to work by. Knowing full well that I couldn't, they ended up calling me at 8:01am on the day of to let me know that I had been terminated. While this was a difficult time, they at least went about it the right way. This, as you said, is unethical but there isn't anything that you can do about it...unfortunately.

I hope that your baby is doing well now and that you have been able to enjoy this "extra" time off with her. Keep your head held high and trust that you will find something again soon.

I hope that this helps you.

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answers from Peoria on

I am pretty sure that the Family Medical Leave Act has some guidelines regarding Maternity Leave. You might try to go to this website for more information:

Here's some tid bit from that website:
29 CFR 825.110 - Which employees are ``eligible'' to take leave under FMLA?

Section Number: 825.110
Section Name: Which employees are ``eligible'' to take leave under FMLA?


(a) An ``eligible employee'' is an employee of a covered employer
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during the
12-month period immediately preceding the commencement of the leave, and
(3) Is employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite. (See
Sec. 825.105(a) regarding employees who work outside the U.S.)
(b) The 12 months an employee must have been employed by the
employer need not be consecutive months. If an employee is maintained on
the payroll for any part of a week, including any periods of paid or
unpaid leave (sick, vacation) during which other benefits or
compensation are provided by the employer (e.g., workers' compensation,
group health plan benefits, etc.), the week counts as a week of
employment. For purposes of determining whether intermittent/occasional/
casual employment qualifies as ``at least 12 months,'' 52 weeks is
deemed to be equal to 12 months.
(c) Whether an employee has worked the minimum 1,250 hours of
service is determined according to the principles established under the
Fair Labor Standards Act (FLSA) for determining compensable hours of
work (see 29 CFR Part 785). The determining factor is the number of
hours an employee has worked for the employer within the meaning of the
FLSA. The determination is not limited by methods of recordkeeping, or
by compensation agreements that do not accurately reflect all of the
hours an employee has worked for or been in service to the employer. Any
accurate accounting of actual hours worked under FLSA's principles may
be used. In the event an employer does not maintain an accurate record
of hours worked by an employee, including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA Regulations, 29 CFR Part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
In the event the employer is unable to meet this burden the employee is
deemed to have met this test. See also Sec. 825.500(f). For this
purpose, full-time teachers (see Sec. 825.800 for definition) of an
elementary or secondary school system, or institution of higher
education, or other educational establishment or institution are deemed
to meet the 1,250 hour test. An employer must be able to clearly
demonstrate that such an employee did not work 1,250 hours during the
previous 12 months in order to claim that the employee is not
``eligible'' for FMLA leave.

Check out the website, it is full of information! Good Luck!

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