MASS Employment Filter: Know your Rights!
December 2, 2013 9:54 AM   Subscribe

My, under 10 employee company just hired a new receptionist in Massachusetts. She has been with us for 2 weeks, week two was out for 2.5 days with the flu. Today starts week 4, and she just informed the president that she is pregnant. Do we have any recourse?
posted by jrc to Work & Money (18 answers total) 4 users marked this as a favorite
One, talk to a lawyer.

Two, what do you mean by "recourse"

She doesn't qualify for leave under FMLA or the state MLA, so you'll have to decide whether you want to give her unpaid leave when the time comes.
posted by Oktober at 9:56 AM on December 2, 2013

Well, she doesn't qualify for the MLA now, but she may when she's due, so there's that. Again, I don't see what the problem is. People get the flu, even if they just started a new job. It's kind of a big deal for pregnant women.
posted by Oktober at 9:58 AM on December 2, 2013 [5 favorites]

Talk to a lawyer, but no, nothing you can do, it looks like, if she will be working at least three months prior to leaving.
posted by roomthreeseventeen at 9:58 AM on December 2, 2013

Please spend the money to ask an employment lawyer in your jurisdiction for guidance. You're seeking legal advice on the internet and relying on a wrong answer could subject you to liability.
posted by MoonOrb at 10:03 AM on December 2, 2013 [2 favorites]

[Folks, please make an effort to keep it constructive.]
posted by cortex at 10:17 AM on December 2, 2013

What do you mean by "recourse"?
posted by radioamy at 10:21 AM on December 2, 2013 [12 favorites]

Do we have any recourse?

Well you can't sue her for getting pregnant.

BUT what I think you mean by saying "recourse" is "what can I do to save my company money?"

1. As she has not worked for as long as necessary to get FMLA benefits, you need not worry about that.'

2. What are her plans? Some maternity/paternity leave takers work right up to the delivery and then come back VERY quickly. Others see this as an opportunity to make career or life changes.

But your best "recourse" for this would be to talk to her and be like "so congratulations! Are you hoping for a boy or girl? Are you getting people asking you all sorts of intrusive questions? Those people are the WORST!!! By the by...what are your plans here at this company?"
posted by hal_c_on at 10:24 AM on December 2, 2013 [4 favorites]

First, be clear on what it is you hope to achieve here -- what kind of recourse are you seeking? Second, be aware if what you're saying is that you would not have hired her if you had known she was pregnant, that is a violation of federal labor law. Third, while it's very inconvenient to have a new employee out sick, alas, the flu doesn't understand about start dates; better that she be at home than be at work, infecting the rest of you with an unpleasant illness.
posted by KathrynT at 10:26 AM on December 2, 2013 [44 favorites]

According to this on the DOL site, FMLA would not apply to your company since you have fewer than 50 employees. If you suddenly have more than 50 employees, the FMLA applies if:

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.

There may be state-specific FMLA rules. I don't know. Neither do you, it seems, so nthing you talk to an employment lawyer. If MA is an at-will state, you can fire someone for any reason....except protected-by-law reasons, which may include pregnancy.
posted by rtha at 10:37 AM on December 2, 2013

This question stinks of discrimination against a federally protected class, and for better or worse, Massachusetts is particularly kind to federally protected classes compared to other states (I know. I have been a pregnant woman twice in Massachusetts).

Do not judge her for being sick.
Do not judge her for being pregnant.
Judge her on her work, as you would a male employee.

You'll have to consult with a lawyer in whether she qualifies for MMLA.

I'd be really cautious about taking any action at all as you could really be putting yourself at risk for a discrimination suit. In fact, I'd use this opportunity to define the kind of company you want to be when it comes to employee health, benefits, and supports. You have an amazing opportunity here to be reasonably progressive or reasonably status quo or unreasonably jerkish. Think long and hard about the kinds of employees you wish to attract in the future, and what it may mean when word gets out that you look to axe pregnant women.
posted by zizzle at 10:50 AM on December 2, 2013 [59 favorites]

She will probably use any accrued sick and/or vacation time. It's time you give as a benefit that she may use. While she is out, you can hire a temp. It will likely inconvenience your company, but that's part of doing business, not actually a big deal. Do not discriminate against this employee, as you may be in violation of federal laws, for which you would need to consult a lawyer. IANAL
posted by theora55 at 10:52 AM on December 2, 2013 [2 favorites]

(the PDA covers employees with 15 or more employees).

Please talk to your lawyer - as you can already see, incomplete facts and internet experts are a bad combo.
posted by Pax at 10:54 AM on December 2, 2013 [2 favorites]

Whatever your "recourse" is, you really should consider the optics. If it were me, and I was retaliated against in any way, I'd immediately run to the media, whether I was legally protected or not. Taking "recourse" against pregnant women is really, really bad for business.
posted by snarfles at 11:03 AM on December 2, 2013 [12 favorites]

The Massachusetts Commission Against Discrimination might be a good contact for information. (And from what I, a non-lawyer, can tell, Massachussets requires any company with six or more employees to provide eight weeks of maternity leave for full-time female employees.)
posted by jaguar at 11:25 AM on December 2, 2013

And I would also keep in mind that changing her job status in any way (firing her, making her part-time) to make her ineligible for leave right after she announces her pregnancy is definitely a lawsuit waiting to happen.
posted by jaguar at 11:26 AM on December 2, 2013 [8 favorites]

Yeah, you need to talk to a lawyer. You can't fire her for being pregnant! If she sucks at her job that's probably different but you really need legal advice.
posted by Justinian at 11:42 AM on December 2, 2013 [2 favorites]

I think the best thing to do in this situation is to start planning now for her maternity leave. Good luck with this! It can be inconvenient to have a new employee take time off for pregnancy, but ultimately having strong policies will benefit your company.
posted by alms at 11:53 AM on December 2, 2013 [3 favorites]

It sounds like to date, your company has been fortunate in that you haven't had to deal with any number of situations - serious car accident, family emergency, cancer diagnosis, etc. - that might keep an employee out of the office for more than a few days here or there so you don't have policies in place to deal with such scenarios. You've been lucky and you still are lucky - assuming everything goes as expected with this employee's pregnancy, you can plan ahead for how to deal with it as a company. If you had hired this employee and she got into a serious accident or her parents died four weeks into her tenure, would you be seeking recourse?

Start planning, with a lawyer, how you'll deal with this and similar situations that may come up. I agree with the above regarding that this is an opportunity to talk about what kind of company you want to be. My office was relocating when my mother died. My boss said, take as much time as you need, your desk will be waiting for you whether at the old office or the new one. I was beyond grateful that I didn't have to worry about work while planning my mother's funeral and I like to think that if I was in his position, I would have said the same thing.

Also, your question comes across as surprisingly hostile and adversarial towards this new hire. That's not a productive way to deal with this situation. For all that you know, she may have been trying to get pregnant for years. Maybe she has a medical condition that made her think that she wouldn't be able to get pregnant. Approach this from the perspective that you need to work together to make sure that her work gets done when she can't be in the office and I think you will be more successful.
posted by kat518 at 6:48 AM on December 3, 2013 [2 favorites]

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