Expert: Brian Phillips - 10/20/2009

Question
QUESTION: I am a waitress at a diner. I have worked there for 11 years.  I have also worked the same shifts for the last 5 years.  I am 34 weeks pregnant and will be having my baby in 6 weeks.  Last week my pregnancy ran into complications and I had to have a surgery to repair a hernia.  Because of this I was forced to start my maternity leave now.  I have talked to my boss and she knows that I will be coming back 2 weeks after the baby is born for a total of 8 weeks off for leave.  My boss just hired a new full time waitress to work my shifts.  My question is that when I go back to work does my boss have to give me back the same shifts that I had when I left, or just the same amount of hours?   I ask this because it makes a big difference at my restaurant.  Because I have been there for so long I work the really good shifts.  If I do not get those shifts back I will be making less than half of what I was making on "my shifts", before my leave.  Is is legal for her to give me different shifts when I come back to work after my leave is over?
Thank you in advance
Diana Verge

ANSWER: Diana-

I don't know.  I ask all questioners to provide me with information when they ask a question.   

Please tell me what state you live in and what state you work in.  Also how many employees work at your restaurant within a 50 mile radius.  (in other words, how many employees are there?   If two people work 20 hours each, count this as one full timer, okay ?

This information helps me determine if FMLA applies to your situation.  Different states have different laws.

Thanks,

Follow up at your convenience.

Brian

---------- FOLLOW-UP ----------

QUESTION: I live in Maine, and also work in Maine.  The restaurant as a whole has approximately 30 full time employees.  About half of those are waitresses as I am.
Thank you again
Diana Verge

Answer
Diana,

Okay, thanks.  I have attached an address for a document for you.  Paste it into your browser.   When you get there,  read the following short sections on Maine's FMLA law.  Since these are more restrictive than the Federal FMLA laws, the Maine laws will prevail.

http://www.mainelegislature.org/legis/statutes/26/title26ch7sec0.html

Subchapter 6-A: FAMILY MEDICAL LEAVE REQUIREMENTS
26 §843. Definitions
26 §844. Family medical leave requirement
26 §845. Employee benefits protection


Essentially,  Maine  is one of a few states that offers supplemental Family Medical Leave protection to employees in the state who worked for an employer for 1+ year and have 15+ employees.    

My assumption is FMLA does apply to your situation and you are covered;  so now on to answer your question...

You wanted to know if you will be reinstated to the first shift where you have been working and where you are sure you are making more money than the people on other shifts.   You feared if you were reinstated, the employer would NOT put you back on first shift, and you would result in getting a bad shift with less money.

When you read the regulations I provided, you will see the section on reinstatement of employees in section 26 S 845    In short,  the employer MUST REINSTATE YOU to a position of equal authority, status, work conditions, pay, etc.   So,  second shift is NOT equal to first and less money is clearly not equal to the money yu could make on 2nd shift.   So reinstating you to another shift is unacceptable.  

Also- in case you didnt know,  the benefits you have at the time you are on leave MUST continue just like you were employed.  So,, you will have to pay the employer outof pocket for your benefits at the same level as though the amount was coming out of a pay check-  the EMPLOYER must also keep paying their share...  So,  if they paid 100 percent for employee only coverage,, you will have a free ride on health insurance.  Make sure you get FMLA documentation from the employer.

So, have your baby.   When you are ready to go back to work,  you should be reinstated to the first shift just like old times.   If anything "bad" happens,  show the employer this regulation and kindly remind them of their obligation under the law.    If they retaliate against you by firing you, not reinstating you or treating you hostile because you show them the law in black and white, just consider talking to a good lawyer about this -  hopefully it doesn't go that far.

Don't worry- anything that happens isn't as important as being a good mom.

Feel free to follow up later if needed

Brian Phillips
Consultant
www.HARVIS.org