Can my employer demote me from salary to an hourly employee after maternity leave with no explanation?
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Can my employer demote me from salary to an hourly employee after maternity leave with no explanation?
I was hired more than a year ago as a GM at a restaurant and went on 6 weeks maternity leave. 1 week before my scheduled return, I was informed that I would be moved to another location and made assistant manager at an hourly rate. I have never received any write-up nor have I previously ever been told that anything was wrong with my job performance whatsoever. I even asked them to explain the move and their excuse was that they are just moving managers around. I had no choice in this.
Asked on November 30, 2010 under Employment Labor Law, Texas
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 14 years ago | Contributor
The employer cannot discriminate against you at work because you took maternity leave. (Though note: depending on relative pay, hours, etc. it's not clear that going to hourly from salaried is always a demotion.) However, unless you have an employment contract to the contrary, an employer has considerable discretion or freedom to promote, demote, transfer, change titles and/or responsibilities, and/or terminiate employees for other reasons. That is, while an employer may not act for an improper reason, such as demoting you simply because you had a child or used maternity leave, the fact you had a child or used leave does not protect you from otherwise valid employment decisions. The issue will turn on the facts--do the facts seem to indicate that the decision was made improperly or not. For example, if a number of managers--some male, some female; some with children and some without--were all moved around, had jobs changed, etc., then that would suggest there was nothing improper here.
Also, an employer is free to correct a previous incorrect classification, so if you really, for example, should have been a nonexempt employee, not an exempt one, the employer can fix that error.
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