Human Resource Blog

maternity leave

When an employee returns from maternity leave, do they need to be offered their same position, (as in someone who was an assistant manager, can we hire them back at a lesser position)?
thank you,
Rose

Well, that depends. If the employee took up to 12 weeks of unpaid, job-protected leave under FMLA, the federal Family and Medical Leave Act or a similar state family leave law, then the employee must be returned to her previous job. If that is impossible, then she must be returned to a job with the same wages, hours, benefits and working conditions. In your example, that would mean that the employee would be returned to her job as assistant manager at the same store. If that store had closed, then she would be returned to a job as assistant manager at the same salary, at a different store.

An employer cannot take any negative job action against an employee because she uses FMLA. However, the employer can take any action that would have been taken anyway, if the employee was not on FMLA. Suppose that while this employee was on leave, the position of assistant manger was eliminated at all the stores. The assistant managers were demoted to sales associates. When the employee returns, she can be demoted to sales associate, also. However, if there are still assistant managers at the stores, the employee cannot be demoted simply because the employer hired someone else to fill in for her, while she was on FMLA.

However, your question raises another issue. It refers to hiring the employee back and maternity leave, which suggests to us that the employee was not on FMLA leave. It suggests that the employee was actually terminated, and was no longer employed by your company (perhaps because she was not covered under FMLA or because she took more than the 12 weeks under FMLA.) If this is true, then the employees job was not protected. You could rehire her as a sales associate, or a janitor for that matter. Or, you could refuse to hire her at all. That is strictly between you and the employee — you are under no obligation to return her to her previous position.

This answer would be different if it occured in one of the dozen or so states that have stricter family leave laws.