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Job security on leave? That's so pre-recession Add to ...

When Susan Drake's employer invited her to lunch last November, she assumed it would be a meeting to discuss her return to her old job in February after a 10-month maternity leave.

Instead, over pub grub at an Irish restaurant, Ms. Drake was also served up a surprise.

Her boss told her that, for economic reasons, the Halifax office of commercial real estate company Colliers International Atlantic Inc. had been reorganized in her absence, and her job as marketing co-ordinator no longer existed. The only position the firm could offer her, she says, was as a receptionist, with hours and pay she was not happy with. "I was disappointed and hurt. I didn't know what to do. I thought I'd be coming back to my old position," Ms. Drake recalls.

Like many people who have taken a leave, Ms. Drake simply presumed she was entitled to return to her former job. And in better times, she might have.

But with the economy in turmoil, she is one of a surprising number of employees on leave finding out that their job is not as protected as they might have believed, lawyers say.

The work world such employees left months ago has turned out to be a very different one from the one they are trying to return to. And as cost-cutting employers pare payrolls, workers who have taken time out - for leaves ranging from maternity and paternity to disability to family compassionate care - are being surprised and dismayed to find out they are no more shielded from showing up on layoff lists than any other worker.

Every Canadian jurisdiction does have laws requiring employers to offer employees who have taken such leaves the right to return to their job or comparable employment.

But hard times provide a legal out: Employers don't have to bring back employees whose jobs were eliminated for "legitimate business reasons" unconnected to the leave, explains Janice Rubin, a partner in employment law firm Rubin Thomlinson LLP in Toronto.

Since the economy started sliding last September, Ms. Rubin says she has been getting an increasing number of calls from employees on maternity and disability leaves whose employers have eliminated their jobs, claiming it was necessary because of layoffs and reorganization.

Toronto employment lawyer Daniel Lublin has seen a similar pattern. He says calls to his office from women handed dismissal notices while on or returning from maternity leave, or even in the midst of pregnancy, have quadrupled since the fall, when the economic contraction started to lead to large-scale layoffs.

"It's a strong litmus test that now I am getting several calls every week," he says. "In the past, the classic case was a woman who returned from maternity leave and was let go because the company preferred to keep the replacement in the position. But now, that has changed. In the cases I am seeing now, companies are claiming that the woman's job no longer exists because the company has restructured."

Toronto employment lawyer Allan Kaufman says he believes that employers find women on maternity leave "tempting targets" when they are looking for ways to cut payrolls. "They have a head count to meet and it appears they find it easier to fire the woman who has not been in the office for a year, and is out of sight and out of mind, than to fire an employee they have to look eye-to-eye when they deliver the message," says Mr. Kaufman, who says he has also seen a striking rise in the number of inquiries he is receiving lately.

But Claude Balthazard, director of human resources excellence for the Human Resources Professionals Association in Toronto, counters that, all other things being equal, a woman returning from maternity leave might be more likely to get to keep her job than an employee who had been on the job.

"I think if it came down to a choice between two employees, HR people would tend to terminate the person who was not on mat leave, because there are just fewer questions that have to be answered and less justification needed. The risk is just less," he says.

Either way, a growing number of employers are grappling with the issue for all types of leaves, Mr. Balthazard acknowledges. And they don't find it an easy call, he says.

"My sense is [that]human resources managers are doing a lot of soul-searching about having to terminate people on leave. If they do it, the decision is out of necessity."

Still, in these volatile times, employees on leave who fear their absence might make them seem more expendable should take steps to stay on the radar and prove their worth when decisions are being made about who to keep and who to let go, career pros say.

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