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After Pregnancy, Is There a Right to the Same Job?

April 01, 2001

Q. I was on pregnancy disability leave for more than five months. My company could not leave the job open.

When I returned after the leave, I was told the position was no longer available and was laid off. Do I have any rights to get the job back?

--R.M., Long Beach

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A. The answer to your question will depend on whether you and your employer fall within the coverage of state and federal family- and medical-leave laws.

You might be entitled to a family or medical leave for a serious health condition under these criteria:

* Your company employs 50 or more workers within a 75-mile radius of where you were employed.

* You have worked for the employer for at least one year.

* You have worked 1,250 hours in the last year.

If you and your employer are covered by these laws, you would be entitled to as much as 12 weeks of unpaid leave to recuperate from your health condition and/or to care for your newborn child.

Such a leave would be in addition to the four-month leave to which you were entitled under the state law because of your pregnancy disability.

After such a leave, an employee must be reinstated to her original job unless the position has been eliminated for legitimate business reasons, or the employer would be unable to operate safely and efficiently by leaving the job open or filling it with a temporary employee.

If the employee can't be reinstated for any of these reasons, the employer must provide a comparable position--unless no such position is available or assigning her to a comparable position would undermine the company's ability to operate safely and efficiently.

If you feel entitled to such a leave, contact the California Fair Employment and Housing Commission or the U.S. Labor Department.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Little Interest Likely on Vacation Benefit

Q. My husband is in the construction industry. As part of his benefits, he receives vacation pay, paying taxes on the vacation benefit weekly as it is earned.

The gross amount for the vacation benefit is deducted from his check and forwarded to the union, which distributes the vacation benefit twice a year.

Should the union be paying interest on these funds, which are held in trust for months?

--J.N., Buena Park

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A. Vacation pay plans are popular in the construction and entertainment industries, in which employees often are dispatched by the union hiring hall to many different companies during the year.

The employers do not want the responsibility of keeping track of vacation payments for employees who might have worked for them only a few days or weeks during the year. The employees want lump-sum vacation distributions but do not want to receive small vacation paychecks from many employers.

Under these plans, money is deducted from each employee's weekly earnings and paid to a separate vacation trust. The trust usually distributes the money to the employees twice a year, before summer vacations and the holiday season.

By law, the vacation money must be kept in a trust fund administered by an equal number of employer and union trustees.

Thus, your inquiry should be made to the vacation trust rather than the union.

The trustees probably would respond that only a small amount of interest can be earned because the vacation pay is held for brief periods, and the money must be kept in short-term, low-yield investments. Except during periods of high interest rates, the small amount of interest earned on the deposits is used up in paying the administrative costs and expenses of the vacation plan.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent columns are available at http://www.latimes.com/shoptalk.

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