Pregnancy & Layoff

GLC

We went through a reorganization last year and had to lay off some staff. Unfortunately, it looks as though we may have to do another round of them. In one of the positions on the list to possibly layoff is a pregnant Sr. Mgr. She is going on FMLA next month to have her baby. She is a Key Employee so I know reinstatement is not guranteed under FMLA. Is it too risky to lay off this person 1 month before the FMLA is to start or could we do it while she is on FMLA leave? She is due to have her baby March 1st. Another thought was too just wait until she returns after FMLA and then do it. If that is the case, how much time should we wait so it does not look suspect? Does she have any job protection rights under the Pregnancy Discrimination Act? Any thoughts would be appreciated.

Balloonman

If you would have laid her off anyhow I would still do it. However you better have all your ducks in a row, and be very comfortable that she would have been laid off anyway. Evaluate are other Sr. Mgrs. also being laid off? Was round two identified when round one was laid off? Would show that she was not singled out. Just remember, think how the information you would present would look to an independent 3rd party, like an EEOC officer, arbitrator or judge.
I am sure a number would say don't lay her off. But the fact is if it is a honest business decision you do what you have to do and should not treat her any different because she is pregnant or about to take leave. Of course those that will say you should not lay her off are doing just that.
My $0.02 worth.
DJ The Balloonman

Shawn

Treat this employee no differently than any other employee. As soon as you start treating her differently because she is pregnant you are asking for trouble from other employees who do not benefit from the same treatment. I would carefully document the reasons you need to reduce costs and the considerations made in determing which positions would be eliminated. Never use names or personalize the process at all.

Gillian

Pregnancy provides no special protection in this area, other than to treat the person the same as you do others. Those on family leave have reinstatement rights which you may be violating if you lay the person off while on leave. You might be creating other problems if you bring the person back knowing that you are going to wait a little while to lay her off. To her and others it will just look like you are playing games. You will be better off dealing with the issue now rather than later.

Margaret Morford

It seems from your answer that you have some flexibility about when you lay her off. What about sitting down and telling her that you are going to lay her off, but you wanted to stretch her lay off date to take her to FMLA? The advantage to her is that she will get her insurance at the employee cost for almost three months before she has to pay COBRA. It also lets her know that she needs to begin looking for a job rather than anticipating coming back after the birth of her baby. The only down side is if you are aware of other people that are going out on FMLA in the next 30 days. You should probably make them the same offer.

She's much less likely to sue if you work with her. If she does get mad and sues you, it gives you a very compelling story to tell in court.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

GLC

Margaret,

We have others on FMLA now, some off work and others on intermittent leave. But the pregnant employee's position is being looked at because it is not considered to be essential. It is not really producing the revenue like we thought it would. So when you say we should offer others going out on FMLA the same offer as we do her, we don't have anyone currently on FMLA whose position we really want to cut because they are bringing in revenue.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 01-24-03 AT 03:10PM (CST)[/font][p]I think you have an especially weak case to eliminate or cut this position. Your reasoning is that it is not producing revenue. The court's and her reasoning will be "How can it, she's out on FMLA?" Not many vacant positions create revenue. FMLA retaliation decided by a jury can really sting.

(edit) I just read back a few boxes and see that she is, what, 8 months pregnant and planning to go out on FMLA to deliver. My logic still holds though. She will gain quite a bit of sympathy when her attorney grills you on how in the world you could expect a lot of productivity out of a pregnant woman in her eighth month, especially if she were periodically out due to her medical condition. I see some real booger-bears in your plan to lay her off.