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overkilled · Apr 24, 2014, 12:10 PM

My wife is planning to be out on maternity leave. Her employer offers some paid maternity leave, but she will be continuing on unpaid leave for a few additional weeks.

She works for a project-based company. As projects and clients come and go, employees are often laid off if the company does not have another project that can take them on. Should such a situation arise, the employee is usually given two weeks (paid) to locate another project within the company before being let go.

She has given her employer a date on which she plans to return from maternity leave. Her employer has told her that if there is no project avialable on that date, they will simply extend her unpaid leave indefinitely. If this were to become a prolonged amount of time, my wife would probably be forced to look for work outside the company and "quit" voluntarily.

This is complicated by the fact that her employer covered some significant education expenses in the past. If she were to leave voluntarily, she would have to repay the expenses. If laid off, she would not.

Can her employer unilaterally extend her unpaid maternity leave past her desired return date without her consent?

smoothy · Apr 24, 2014, 12:27 PM

Sure they can... she's likely an AT-WILL employee.. without a union or a iron clad labor contract... and if they don't have another project ready to step into, she might have to waiit until the next one. Otherwise she would have to walk into the middle of one which would be disruptive.

The question you should be concerned with now... at what point does this become an actual layoff? vs. Voluntary upaid leave.

I think but would like others to back my opinion up on this... that the point she gave a return date and it was involuntarily extended by them could be considered a layoff, and depending on your states rules... she might become elligible for unemployment checks.

I also agree......she does not want to quit. They could come after her to recover at least some of those education expenses. I've seen that happen before.

overkilled · Apr 24, 2014, 12:35 PM

Thanks for the response, and I should clarify - It's an understood fact in her industry that projects come and go, and if there isn't anything available, she is prepared for that. In fact, she could very easily find another job outside the company. The concern is whether the employer can deliberately keep her on unpaid leave, rather than allow her to "return", not find anything, and be laid off. We just need to know whether to count on repaying those education expenses, should this scenario play out.

smoothy · Apr 24, 2014, 12:48 PM

THey can say they don't want people coming into the middle of a project... and if they have none ready to start that don't already have people assigned to them... they can say nothing available right now... I know that for a fact because I've been in a similar situation (it was just for a different reason than hers).

If they terminate her... they can't come after her for the education expenses if they would have forgiven them if she remained employed.

If they don't provide her any work... then she is basically what is called upaid standby... like a layoff... and she could collect unemployment. Again... situation I have been in and did collect unemployment during before I found a new job at a new employer.

If its only two more weeks... you have to grin and bear it... many states have a longer waiting period before you can start to collect than that.

WHat constitutes a few weeks is the biggest issue. I'd contact your state unemployment office to find out if she is able to qualify right away. THe employer pays out those benefits, and might be incentive to bring her back sooner.

In the case I mentioned this was a bit over 20 years ago... and to this day I don't know if I was ever actually terminated from service or not... much less when... because it was pending the next opening which I did not hang around long for. And I never quit that job either.

tickle · Apr 24, 2014, 01:35 PM

Let her have her baby without a lot of stress over this situation; figure it out after she is home with her new baby. And post us with new circumstances as they arise. She received an education from these people which surely amounts to something in your situation. Are you working as well ?

joypulv · Apr 24, 2014, 02:48 PM

Without a lot more information, I have a feeling that by not going back to work at the end of the paid leave, she is out in the cold as far as UI goes.

You aren't clear on who set the extended leave. Your title is suggesting that the employer might force her to stay out past when she wants to go back, but then you say that she is the one who chose to stay out past the paid leave time? If that is true, she can't have her cake and eat it too. She pretty much loses all rights, IMO.

smoothy · Apr 24, 2014, 02:52 PM

Originally Posted by joypulv

Without a lot more information, I have a feeling that by not going back to work at the end of the paid leave, she is out in the cold as far as UI goes.

You aren't clear on who set the extended leave. Your title is suggesting that the employer might force her to stay out past when she wants to go back, but then you say that she is the one who chose to stay out past the paid leave time? If that is true, she can't have her cake and eat it too. She pretty much loses all rights, IMO.

I didn't catch those conflicting statements earlier... but yeah... depending on which of those is correct and which was an inadvertent mistake makes a HUGE difference. We really need clarification which it is.