Any employment law experts here?

[disneysteve]

A colleague posed this question today. He hired a new receptionist in October. She's working out fine, but just told him that she's pregnant. Apparently, she had some difficulty with her last pregnancy due to some other medical problems and she was out on disability for several months. He's wondering if he can legally let her go without running into legal problems. He is going to need to bring in someone new, train them, pay them, etc. and really can't afford to keep both of them on the payroll. Ah the joys of small business operations. Anyone have any experience or thoughts?

[tinapbeana]

Re: Any employment law experts here?

not an expert by ANY means, but my understanding is when a person is 'on leave' they take whatever sick/vacation time they have earned and then apply for any STD/LTD coverage they might have, as opposed to still being on the payroll at the company where they work. YMMV for your state. from that perspective, your friend wouldn't be keeping 2 people on payroll.

also, your friend should check out FMLA regulations. if his business is small enough (i believe fewer than 50 employees) he might not be held accountible to FMLA and keeping this person's job available to her, meaning if she uses her vacation/sick time and goes on leave, he can replace her. again, YMMV.

[mom-from-missouri]

Re: Any employment law experts here?

I think it also varies from state to state. I know when I worked for the company I worked for (which was world wide), our peers in other states had more or less time than we did, because of STATE rules--we were all the same union.
If I were your friend, I'd wait awhile-what if he lets her go, then she loses the baby? She'd probably only be out a few days vs a longer disabilibty time.

[disneysteve]

Re: Any employment law experts here?

This isn't an FMLA issue. We're talking small private medical practice. My practice has 2 doctors and 3 full time employees. I think his is about the same size, maybe a couple more but probably 8-10 people max.

I think the main thing he was wondering was if he was obligated to keep her since she's only been with him for 3 months. But I don't know what the terms were when she was hired, like if there was a stated probationary period.

[pearlieq]

Re: Any employment law experts here?

Unless he self-insures, wouldn't his disability insurance be paying her salary during the time she's on disability? Also, realistically, he's probably much too small for any workplace legislation to apply. She would likely have to sue for there to be any repurcussions for him. Also, New Jersey is an "at will" employment state.

However in this summary of NJ employment law( http://research.lawyers.com/New-Jers...ew-Jersey.html ) it clearly states that pregnancy can not be used as grounds for termination.

And not to be contentious or to downplay what I'm sure are real operating challenges of a small business, but doesn't anyone have the teensiest-tiniest ethical problem with someone looking to fire a otherwise competent pregnant woman because she had problems with a previous pregnancy?

Am I reading the situation right? Is there any indication yet that there will be problems with this pregnancy? She's intending to come back afterwards, I assume. With that being the case, I would think he could just suck it up and hire a temp for 5-6 months (worst case scenario). It would cost him extra money, but in the greater scheme of things it seems like the right thing to do.

Are we really firing women for getting pregnant these days?

[mom-from-missouri]

Re: Any employment law experts here?

Again, depends on the state. In MO, for instance, if he were to dismiss her because she is preg (which, bottom line, sounds like that is the case), it is considered discrimanation. In other states, it may not be. (Then if he turns around and hires a non preg female, that worses the blow). She could file suit. In other states, it may not be considered discrimanation-I know in Indiana it used to not be--don't know about it now.
But, if she started to miss a lot of work, more than the amount of days she is allowed to miss in a year, then he would be justified. He would not be firing her because of the preg, but because of missed work. Thats why I said he needs to wait longer to see what happens. How many days a year did he tell her she could miss?? That should have been discussed when she was hired. x amount of sick days, x amount of vacation days, x amount of personal days....

[DebbieL]

Re: Any employment law experts here?

Here in Canada you can't do that. If someone did that to me I would sue them for sure (and I'm not a litigious person, but that just stinks). If I were her, I wouldn't have even told my boss about the previous complications. Is there any reason to think that all her pregnancies will have the same complication? Either way, I don't think it is right to get rid of someone because they got pregnant.

[disneysteve]

Re: Any employment law experts here?

Is there any indication yet that there will be problems with this pregnancy? She's intending to come back afterwards, I assume.

From what he said, he just found out about the pregnancy and its early on. She apparently told him her history from her previous pregnancy. I have no idea if they discussed her intentions once she has the baby. And as we all know, what her intentions are now could change depending on how smooth the pregnancy is and what she decides after the baby is born, but that's a whole separate issue.

[disneysteve]

Re: Any employment law experts here?

But, if she started to miss a lot of work, more than the amount of days she is allowed to miss in a year, then he would be justified. He would not be firing her because of the preg, but because of missed work. Thats why I said he needs to wait longer to see what happens. How many days a year did he tell her she could miss?? That should have been discussed when she was hired. x amount of sick days, x amount of vacation days, x amount of personal days....

That makes sense. I have no idea what her terms of employment are.

[tinapbeana]

Re: Any employment law experts here?

But, if she started to miss a lot of work, more than the amount of days she is allowed to miss in a year, then he would be justified. He would not be firing her because of the preg, but because of missed work. Thats why I said he needs to wait longer to see what happens. How many days a year did he tell her she could miss?? That should have been discussed when she was hired. x amount of sick days, x amount of vacation days, x amount of personal days....

this was the point i was trying to get at when i previously mentioned FMLA, steve. in situations where FMLA doens't apply, then it's a matter of the agreed upon terms of employment such as absences, vacation days, etc. when FMLA does apply, then someone can be on approved leave without pay and still have a expectation of an equivalently paying job when they return.

[Saving in So Cal]

Re: Any employment law experts here?

Your friend needs to check the website for the agency in his state that enforces equal employment opportunity laws. The website should have consumer friendly information about the laws applicable to his situation. Some states, such as California, have very strict pregnancy antidiscrimination laws that apply even to small employers and even to employees with very short tenure (i.e., 1 day). These same laws can also require an employer to accommodate a pregnancy-related disability (i.e., problem pregnancy).

[disneysteve]

Re: Any employment law experts here?

One of the many reasons I'm happy to remain an employee and not an owner of my practice. What headaches!

[MonkeyMama]

Re: Any employment law experts here?

Tread carefully. Over and over I see someone gets let go because they are pregnant - and the law is on their side - they can sue like crazy. The sad thing is usually these people won't even come back. You don't know how many people I know trying to sue their employer though they never intended to go back. The law is very 1-sided in the pregnant woman's favor.

I think Tina has a point though, if she misses a lot of work, there is only so much they have to do for her job.

California is very liberal and I tried to stay on top of all the laws through my pregnancies. I work at a small firm not covered by FMLA but it didn't matter because CA had so many rules to protect the pregnant. BUT the one thing I Am pretty sure of was my job was never guaranteed once I took more than disability which I did twice. I was concerned about my rights because too many pregnant women taking advantage and leaving a bad name for the rest of us who intended to keep our jobs (particularly as I for one support my family).

If she is legitimately on disability there may not be much you can do, but overall small employers have a little more flexibility due to the hardship it takes to replace an employee on leave. (CA is different because disability is provided by the state, and so the leave laws are tied to the actual disability taken it seems. IT seems to be even if I Was on disability 6 months my small employer would have to hold a job for me. but I know it is very different here than other states.).

However, acting now before there is any indication if she will truly take a lot of time off (because who knows) is sticky. Probably worth consulting a labor lawyer before doing anything.

[boefixepa]

Re: Any employment law experts here?

Very sticky situation and both parties need to make sure they understand what the law is. I've seen both sides of the picture and it can be a tough call. As an employer you want to understanding and accomidating, but you still have a job which needs to be done and done right. On the other side, you want to make sure to take care of baby and that you are still able to work.

For me personally, I try not to take advantage of my employer. I've told him flat out I have no intention of coming back to work after the baby and that I plan to work up to and until my maternatiy leave, complications aside. So he can choose to hire someone with as little or as much time for me to train them as he wants. By doing this 1.) I know I will be getting no more raises, what incentive does he have over the next year year and half to give me a riase...none, but that's fine with me. Is it fair, not really, but I see his point of view and respect it. I could keep my plans a secret, but I don't think that is fair to him. 2.) He is out the double pay during the time I am training the new person. But I've given him enough notice that he has time to come to terms with this and make the necessary plans and adjustments.

If there is any illness or long term bed rest with the pregnancy I've planned far enough ahead that I PERSONALLY have the necessary health and disability insurances. I would not be depending on any state or work aid.

I also believe that by being up front and honest with my boss that he is going to go beyond the 'required' to make sure I have the time I need to take care of my preganacy.

It's a touch call not matter how you look at it. To me keeping the line of communication open and going both ways is important. To just dump a person because they are pregnant is going to cause problems no matter how you look at it. That's not cause to fire someone. If she is not able to work, she should quit on good terms and deal with her health problems and not expect an employer she's just started for to foot the bill. That's my personal opinion, not any law. Just my two cents. If she's planning on staying after the baby then I think they can work out a situation that works for both of them. She needs to show him that she's commited to the job, even with the baby and the problems that may come along with it. If they work together and are both fair to each other there's no reason to brings laws into the situation.