Fired for pregnancy?
February 7, 2011 5:10 PM   Subscribe

EmployerFilter. My soon-to-be wife is around four months pregnant. Our due date is the first week of July, which at that time will be employed with her current employer for eleven months time. She currently is covered under their group insurance. Today they informed her that they will give her seven (unpaid) days of maternity leave. They informed her they will be terminating her if she takes anything longer off. To me this sounds rotten, possibly illegal. We are the state of Florida, USA. Can they really fire her for taking more than a week of maternity leave?
posted by AdamOddo to Work & Money (27 answers total) 1 user marked this as a favorite
You need to consult a qualified employment lawyer in your jurisdiction. No one here can answer this question because we don't know the details of your specific case.
posted by decathecting at 5:16 PM on February 7, 2011 [9 favorites]

You should do some research into the Family Medical Leave Act. I could be wrong, but I think women are covered for six weeks of unpaid maternity leave under the FMLA.
posted by echo0720 at 5:17 PM on February 7, 2011 [4 favorites]

FMLA requirements don't apply until the employee has worked for the employer for 12 months. So yes, they apparently could fire her for taking more time off. IANAL.
posted by jon1270 at 5:17 PM on February 7, 2011 [1 favorite]

So, if she hasn't been an employee for 12 months and worked 1250 hours in the preceding 12 months or the organization has under 50 employees they are not obligated to observe the provisions of FMLA. However this sounds like an excellent item to consult with an attorney on as there may be some wiggle room in the interpretation of the FMLA in Florida.
posted by iamabot at 5:18 PM on February 7, 2011 [2 favorites]

Not a laywer. That sucks a lot, but it might just be legal. From a Fact Sheet on the Family Medical Leave Act:

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.

Even if it's legal, it certainly isn't the decent, human thing to do. I really hope you get some better accommodation. :/
posted by Andrhia at 5:18 PM on February 7, 2011

Unfortunately, the federal Family and Medical Leave Act (FMLA) requires 12 months employment before it comes into effect (and 1250 hours worked over those 12 months.) Some states have laws that provide increased benefits, so YMMV.

Rotten? Hell yeah. But it might not be illegal.
posted by m@f at 5:23 PM on February 7, 2011

Lawyer, lawyer. FMLA is not the only source of pregnancy protection law. She may be protected under other federal or state law.
posted by yarly at 5:26 PM on February 7, 2011 [13 favorites]

Agree, lawyer up.
posted by dpx.mfx at 5:46 PM on February 7, 2011 [1 favorite]

IANAL. In CA, I was not required to take my FML immediately after the birth of our children, but if I was going to take any leave it had to be completed within 12 months of the child's birth. I have no idea of the specifics of FLA law, but it's possible that even if she doesn't qualify immediately she may qualify for leave a month later. As almost everyone has said, you need to consult a Florida labor lawyer. Good luck and congrats!
posted by mosk at 5:50 PM on February 7, 2011 [5 favorites]

Agreeing with the lawyering up.

But your wife may also want to consider if she even wants to work at such an unpleasant place. A birth (whether vaginal or surgical) is a Major Medical Event, as I'm sure you know. I had a c-section in October and 7 days later, I was just to the point where I could get out of bed without really awful pain. Not to mention the utter lack of sleep that would have made me absolutely useless at any kind of job.

If she were having surgery on her knee that required being out longer than 7 days, would they fire her then too? I know times are tough and jobs are really hard to come by right now, but I don't think I could work for such an employee unfriendly place.
posted by chiababe at 5:58 PM on February 7, 2011 [12 favorites]

What sick days does she have? She could use her sick\vacation after the 7 days. Would that get her close to 12 ,months?
posted by roomthreeseventeen at 6:07 PM on February 7, 2011

They sound like assholes.

lawyer lawyer lawyer. This is too important to get an internet opinion. Might be coverage under the Americans With Disabilities Act, the Pregnancy Discrimination Act (part of Title VII). Heck, there might be a state or even a municipal law you could hang your hat on. What happens when other employees get sick? Does anyone ever get extended time off? If so, she's potentially got a claim.

(That is, assuming that there are 15+ employees for the ADA/Title VII. You need a lawyer).
posted by seventyfour at 6:17 PM on February 7, 2011

Did they say that they "can" terminate her or that they "will" terminate her? Was this in an informal conversation or an official communication from her supervisor or someone from HR? I ask because this may help you guys decide how to proceed.

If this was simply a case of HR informing her of lack of FMLA-eligibility, then that's one thing. If this was a statement of how her employer plans to handle her maternity leave, then you need to consult a lawyer or other employee advocate to make sure you understand your options. I'm sorry that you have to deal with this when you're preparing for a wonderful (but stressful) event.

I'd also suggest you determine what her rights (and the company policies) are regarding use of sick, vacation or other PTO for care of a family member. It would be tragic and frustrating if she were to return to work after the birth only to be terminated soon after for issues surrounding absences for the care of your baby ('cause kids sure do get sick a lot). It may be that those policies (in addition to the maternity leave issue), are enough for you two to consider other options.
posted by annaramma at 6:21 PM on February 7, 2011 [2 favorites]

What happens when other employees get sick? Does anyone ever get extended time off?

This is the only thing that may possibly be relevant. FMLA is irrelevant; she's not eligible unless she's a re-hire. Florida has no state leave law for private employers. California leave laws are irrelevant since you're not in CA. The Americans with Disabilities Act? Also irrelevant. If your wife is being treated like any other non-FMLA eligible employee who needs a leave of absence, there's probably nothing illegal going on. You may be able to scare them into keeping her if you have an attorney send a few letters or make some calls, but keep in mind that comes at a cost - and I'm not talking about money.

If, on the other hand, a similarly-situated employee who is not pregnant would receive a leave, she may have a possible discrimination claim. For example, if a man at her office got into a car accident and needed 6 weeks off, but wasn't eligible for FMLA, would he receive a leave of absence? I'd ask her if she is aware of any employees who have not been there 12 months (and are not rehires) who have been approved for leaves of absence.

Otherwise, carefully weigh the risks of lawyering up with the benefits. This is one of the shitty parts about living in the only "first-world" country with no paid maternity leave guaranteed by law. Even Saudi Arabia, where women are not permitted to drive, offers paid maternity leave. Oy.
posted by pecanpies at 6:42 PM on February 7, 2011 [2 favorites]

(Obviously, I'm basing my response above on the information you've provided. If it's inaccurate or incomplete, then what I've written may not be correct. For example, if your wife has a disability that's been exacerbated by the pregnancy or is related to the pregnancy, or if there are other factors at play, perhaps ADA could apply. Based on what you've written, though, it sounds as though what's happening is not illegal unless she is being treated differently than any other similarly-situated employee requesting a non-FMLA medical leave of absence.)
posted by pecanpies at 6:45 PM on February 7, 2011 [1 favorite]

(Also, I apparently missed the "soon-to-be" part. Sorry about that. Ok - last time I'm posting without something helpful to say, I swear.)
posted by pecanpies at 6:46 PM on February 7, 2011

Agreed, Pecanpies, except that there could be an ADA claim, especially under the liberalization of the ADA under the amendments passed in 2008. For there to be a claim, there'd need to be a disability under the ADA of course. And while pregnancy itself is not a disability, many common conditions and complications accompanying pregnancy are, and may entitle (at least in theory) the employee to a reasonable accommodation, potentially including long term leave.
posted by seventyfour at 6:50 PM on February 7, 2011 [1 favorite]

(And I posted before I saw your clarification, Pecanpies)
posted by seventyfour at 6:50 PM on February 7, 2011 [1 favorite]

I am not a lawyer or a Florida resident, but I did find Florida Law Help, a website looks like a good place to start the process of informing yourself.

Florida Law Help offers self-help information on a variety of topics -- including employment issues (click on the "Individual Rights" link) -- and "provides information about organizations that provide free legal help to low and moderate income Floridians." The information is compiled by Florida Legal Services, Inc., a nonprofit organization whose mission is to ensure that people w/o a lot of money have access to civil legal assistance.

Good luck, and I hope you two can get this question answered to your satisfaction, so you can turn your attention to happier topics. (I belong to a union, and while organized labor is far from perfect, it at least gives workers a framework to raise and resolve such issues ...)
posted by virago at 6:51 PM on February 7, 2011

... "a website that looks like a good place to start informing yourself."

posted by virago at 6:53 PM on February 7, 2011

Does she have sick leave and/or vacation time that she can take? If I were in her shoes, I'd start working on a plan that would enable her to work at home for part of the time. Seven days isn't enough to recover from a C-section, although a normal vaginal birth might leave her in fine shape. If she wants to stay in the job, presenting a plan, rather than a letter from a lawyer, might go a long way in making things work.
posted by Ideefixe at 7:36 PM on February 7, 2011

Putting aside the legalities, it sounds to me as if they don't want her to work there. She is not a valued employee or the job is such that it can be filled easily. Regardless of how this plays out from a legal standpoint, I would start (and finish) planning her next move as to finding a new employer. It will likely be after she gives birth and is ready to go back to work.
posted by AugustWest at 7:56 PM on February 7, 2011 [6 favorites]

I'm not in the US and thus unfamiliar with law, but I'd also look into whether someone on sick leave would have their position held. There are many issues that could cause a new mother to need sick leave.

That being said, I'd be concerned that push back might lead to your wife losing her job for "other" reasons in the next 5 months. Or that they might turf her upon her return, even after 7 days. So it might be a good idea to (1) lawyer up and (2) start investigating other options.
posted by acoutu at 8:41 PM on February 7, 2011

Perhaps there is a misunderstanding of the HR policy? I'm currently going through the FMLA leave request process with an inexperienced HR staff person and have gotten some odd sounding information that prompted me to go above the HR person's head and talk to her boss for clarification. I work for a very large organization, however, with well established policies.

Even if your fiancee does not quality for FMLA, she should legally be able to go on temporary disability for 6-8 weeks. I had to get a form signed by my Dr. indicating I will be physically unable to perform the duties of my job for 6 weeks (for regular birth) or for 8 weeks (if there is a c-section).
posted by pluckysparrow at 8:58 PM on February 7, 2011

Can your wife to be save up vacation time and sick leave and use it then? If the baby's late, that would get her even closer to August, when she'd be eligible for FLMA.

In any case, sticking with the job probably gives her health insurance coverage through the delivery, right?

Good luck.
posted by bluedaisy at 9:29 PM on February 7, 2011

Sounds like our place. A manager came to this company pregnant and received zero benefits except to use her PTO. She still took the full amount of 12 weeks but it was totally unpaid, not on maternity, and I think somehow worked out before hiring since she definately was coming in pregnant and staying as a manager. It helped that the hiring manager was her friend. So there you go.

Ask a lawyer. Ask if something can be negotiated as far as PTO and unpaid days.
posted by stormpooper at 7:50 AM on February 8, 2011

This stinks. Document everything. Get a lawyer specializing in employment discrimination. (Employment lawyers tend to represent only one side -- the employees or the employers-- so someone touting their experience representing big companies is probably not your best bet.) I'm no Florida law expert, but you may have some remedies under state law too.

In addition to the other ideas others have mentioned, you might specifically inquire about a cause of action under the Pregnancy Discrimination Act.
posted by *s at 8:51 AM on February 8, 2011

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