“Can They Fire Me on Parental Leave?” L.A. Employment Lawyer Answers

As an L.A. employment lawyer, we’ve fielded a fair number of questions about the legality of lay-offs or termination of an employee who is on maternity leave or parental leave.

The answer isn’t always cut-and-dried, depending a fair bit on the specific circumstances of the case.

Of course, losing a job in general is never an easy prospect. But firing or laying off someone who is on parental leave is arguably all kinds of wrong from a moral perspective  – especially because employees in this situation truly need both money and health care during this time. One might even consider it “emotional robbery.” Those first few days, weeks, and months bonding with a new baby are priceless. If the parent is suddenly overwhelmed with stress over finances and healthcare, they’re emotional and physical energy will be spent elsewhere – and that’s time they’ll never get back. It can also have serious health consequences, especially for employees who have just given birth.

All this makes it very risky for a company’s reputation and brand to engage in such practices. And yet, some still do. Whether that’s the basis for a successful California employment lawsuit will hinge on a few different factors.

Rights of Employees on Parental Leave

There are federal and state laws that protect the rights of employees on parental leave. California has some of the strongest state-level parental leave protections.

California (as well as a handful of other states) requires paid parental leave – up to 8 weeks of partial wage replacement to eligible workers. It can be used for new parents and/or within 1 year of a child’s birth or foster care placement or adoption. Pregnant mothers are also given up to 4 months of job-protected disability leave prior to parental leave once the child is born. The California Paid Family Leave law (available to workers at companies with 20+ employees) is not solely for new parents, but can also be used to care for a seriously ill close family member.

Meanwhile, federal law – specifically the Family Medical Leave Act (FMLA) requires employers give up to 12 weeks of unpaid leave for similar reasons to eligible workers. California has a state law that also provides these same rights (12 weeks unpaid, job-protected time off, which applies to smaller companies).

Anti gender discrimination laws prohibit employers from denying male employees the same options they grant a woman in terms of time off to care for a child.

Were You Replaced Or Eliminated?

All of this doesn’t necessarily mean that you absolutely will not lose your job. But how it happens matters. It’s illegal to discriminate against workers on the basis of pregnancy, childbirth, or related conditions – or for taking protected medical leave. However, that doesn’t mean it’s illegal to lay someone off if they’re on parental leave. It’s unlawful to do so because they are new parents, but it’s not against the law to do so if the lay-off is for an unrelated reason, such as company-wide budget cuts.

That said, if there’s evidence the company intentionally selected that individual for a lay-off in whole or in part because they’re on parental leave, that’s where they’ve crossed a legal line.

FMLA and similar state laws protect an employee’s specific role in the company, but not their general employment. If your role itself was axed, you may not have legal recourse. (However, you should not decide this and give up on legal action before talking to an L.A. employment attorney.) If, on the other hand, you were laid off or fired and then replaced, that’s an issue.

Talk to An Employment Attorney

It can be tough in some cases to prove the reason for the layoff was because you’re on leave. We do ask prospective plaintiffs to think about whether any negative comments were made or attitudes expressed about families, pregnancy, childbirth, breastfeeding, childcare, etc. That may end up being a factor. If you felt pressure to return from your parental leave sooner than anticipated – and then were let go after declining – that may be relevant. If the person now handling your workload is less qualified than you, we’ll want to know about that.