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Im currently on Maternity Leave, expected to return
on Feb 21, 2018. As of today I have not given my
voluntary resignation however I was told by a
current co-worker that a job has been posted online
for my replacement.This job opening was created on
1/12/2018. Do I have a case?
Asked on February 10, 2018 under Employment Labor Law, California
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
If you were properly able to use FMLA (your company has 50 or more employees located within a 75-mile radius; you worked there at least a year and worked at least 1,250 hours in the past 12 months) and did in fact use it, then so long as you don't exceed the 12 weeks FMLA gives you, they must give you back either your old job or an equivalent one. (That is, one for same pay, similar level of authority or seniority; they are allowed to manage their business and redeploy people, but cannot deprive you of a job like the one you had before leave.) If they refuse to allow you back to your old job or an equivalent one, you could contact the federal or state department of labor to file a complaint; denying a return to employment after FMLA leave is illegal.
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