Laid Off During a Pregnancy Leave? Negotiate a Win
February 14th, 2023
A headline story in the New York Times recently read “When Having a Baby and Losing Your Job Collide.” The article discussed the recent phenomenon of large corporations, predominantly but not exclusively in the tech and media industries, offering lavish benefits and perks to attract quality workers in a tight labor market. Escalating competition for talent required companies provide more and offer more with each passing quarter.
Those days are apparently over. With massive layoffs by some of the country’s top tech firms including Microsoft and Alphabet (Google’s corporate parent), affected workers are experiencing whiplash after receiving a pink slip they never expected. According to the article, large numbers of these laid off workers, men and women alike, had recently experienced the birth of a child, a time normally filled with hope and joy, and were taking advantage of voluntarily enacted paid parental leave policies. Employers adopted such generous benefits not out of the goodness of their hearts, but out of greed. We know this retrospectively because these same companies appear to be targeting employees who availed themselves of paid parenting leave when implementing their layoffs. Sorry to break the news, employees were used.
To be clear – it is not unlawful for an employer to lay off an employee who happens to be on parental leave when a company-wide layoff occurs. However, an employer may not terminate an employee as part of a layoff because he or she is on maternity or paternity leave. As an example, your employer may think it’s weak for a male employee to take paternity leave to help his spouse for a few months, and therefore uses a layoff to get rid of that employee. Many states make it illegal to terminate an employee because they’ve taken maternity or paternity leave, as bonding between a newborn and a parent is a benefit to society and should be encouraged. In these states, an employee discharged for taking time off can bring an action for damages against their employer. By inducing an employee to sign a severance agreement containing a release of claims for a minimal amount, the employer gets litigation insurance on the cheap – saving it potentially hundreds of thousands of dollars in damages that a judge or jury might otherwise assess in a meritorious legal action. With this leverage in hand, of course employees should negotiate with their employers to get a better deal. Check these links out for additional information:
The Pregnancy Discrimination Act (PDA) makes it illegal for employers to fire, refuse to hire, or deny a woman a promotion because she is pregnant. The law also provides that an employer must treat a pregnant woman the same way it would treat any other employee who becomes sick or temporarily disabled. If the employer provides benefits such as paid sick days or disability, it must cover pregnancy related disability and recovery from childbirth. The PDA does not guarantee job protection; it only guarantees a pregnant employee’s right to be treated the same as any other employee with a medical condition.
The Family and Medical Leave Act (FMLA) provides for job-protected, unpaid leave of up to twelve weeks after the birth or adoption of a child. Upon return from FMLA leave, the employee must be restored to the same or a substantially equivalent position. It prohibits any form of interference with or retaliation from use of necessary leave. In order to qualify under the FMLA, you must have been employed by your employer for over one year and have worked for at least 1250 hours over the course of that previous year. The FMLA only covers employees at companies with 50 or more workers.
So, now what? You believed your employer when it promised you an elaborate array of amazing benefits and you accepted its job offer. Then, months or years later, you take the time off promised (and encouraged), only to be followed up a termination because the company decided to “restructure” or “eliminate” or “right-size.” Note: these terms are often code language for “let’s get rid of people we don’t want around anymore.” Typically your employer will offer you some minimal severance, like a few weeks to a few months of base pay. To repeat, they’re only doing this to buy a release from you so you can’t sue. Know your rights. As the expression goes, “Fool me once, shame on you. Fool me twice, shame on me.”
So, if you are in this situation, it is wise to consult with an attorney before accepting any severance. You may have leverage that will allow you to respectfully decline the relative peanuts being offered and demand more. People typically think that the severance offers are non-negotiable. Nothing could be further from the truth. Your employer should not get the last word on how you depart company. Feel free to call Halunen Law to see if we can assist you in getting what you deserve.