Relocating and Pregnant

jsnis

An employee is 4 months pregnant and due to her husband's job is relocating. Her direct boss, who works remotely, assured her over several phone conversations that she could continue to do her job remotely. The employee is a technical instructor and her job requires travel. It is convenient that she was at headquarters because of monthly classes that are held here. I advised her that she needed her manager's approval and her job requires travel anyway, so when the move was going to take place, we would do the paperwork.

Her boss decided not to tell his director for a week because he was going to be traveling and the director has a very reactive personality and he didn't want the director to panic. In the boss's eyes, this is a very seamless and simple transition. Once the boss told the director about the move, the director went directly to the employee and told her there was no way she was going to be able to keep her job and work remotely. The director said the decision had been made and they were going to cancel next months class, so if the employee wanted to leave earlier, she just needs to tell the company when she wants her last day to be.

Now, the boss and director want to offer her a temp position in the company where she would be given work each week to complete. Some weeks, there may be 0 work, and others there may be 40 hours. The employee would not get any pto or holidays and would only be eligible for benefits if she worked 30 hours that week. They want this temporary position to not have any end date. Basically, it sounds like they are afraid to let her go because she's pregnant and had a verbal and implied contract from her boss. Is this there way of getting around the laws and still getting rid of her based on the fact that this position doesn't have an end date? They can simply not give her any work as soon as she leaves the area.

What do I advise the boss and director to do? What do I advise the employee to do?

hrbanker

What is the reason the director gave for the employee not being able to do the job remotely? If it has anything at all do do with her pregnancy you might as well just call her attorney and ask how much money they want.

jsnis

The director's reason is because she feels the position is here, though it is not in the employee's job description or a requirement. The director also told her that the added travel expenses of flying her out to teach, the fact that she wouldn't be able to travel in a few months because she's pregnant and then she'd be on maternity leave. When the employee offered to pay all of her own travel expenses, the director again said the decision has been made.

hrbanker

My thought is it would be reasonable to allow the employee to travel as long as she is able. If this was a male, relocating, willing to pay his own travel expenses, and the boss had made that promise, what would the company do? Is she entitled to FMLA?

The law states that pregnant employees must be allowed to work until they are medically unable to do so. Employers who pressure pregnant employees to begin leave before it's medically necessary are liable for unlawful discrimination.

jsnis

Yes, the employee is entitled to FMLA. And you make good points. Is what the boss and director wanting to propose to her leaning on the wrong side of the fence? Can they legally even offer something like that to her?

Rockie

Strange situation with mixed signals.

Employee was relocating and if this working remote situation had not been offered to her, she would have resigned her position, pregnant or not. Correct?

The job was offered to her that she could do this job remotely. She accepted. She even offered to pay her own travel in order to do the job.

Another manager decided she could not do the job remotely. Why? Expense? This was addressed. Because she was pregnant and would be out for some time? This appears to be the issue and this is the way the court would look at it.

The rationale behind this is because she has again been offered a lesser position in status, pay, benefits, etc. than she presently has and has been assured by a manager that she could perform remotely.

To a court, this would look like one manager decided the employee could do the job remotely and the other took issue with the fact that she could not do it remotely because of her pregnancy condition.

I beleive the company is obligated to continue the employment relationship based on the oral offer made to the employee; otherwise, you may risk a nasty discrimination claim.

Balloonman

I am a day late on this one but here is my $0.02. First off you are in a tough spot as the director and the manager are in conflict and you are in the middle. Something to look at, first where are you located, and where is she moving to? The reason I ask is depending on where you are located if she were moving to a major metro area with a significant airline hub, you may actually have less expense incurred, or some hotel expense would be negated. Second, has this been a tremendous employee? If so, highly valued and skilled, this should also be brought up. You almost have to look at this as how will you market this plan to the director? You need to get with the manager and discuss the best approach, and together have the discussion.
I am not really touching on the discriminatory aspect as it is clear and you will most likely get hammered. I also would suggest that you see if you can resolve this without bringing that up so the director do not have resentment over keeping this person.
Finally if you are unsuccessful, you might as you are leaving the meeting let the director know that you will need him to factor in approximately $100,000 of expense into the budget, but that number could be low. When he asks why explain about the pregnancy discrimination, and that between settlement or judgement and attorny's fees you could easily approach that number. Based on the situation this is a departmental expense he will need to reserve for. (Can you tell I am a type A personality x;-) )
My $0.02 worth.
DJ The Balloonman

SMace

Rockie is right on the mark. With the director's quote to her that he is doing this because she is pregnant, your looking at a viable discrimination claim based on pregnancy. Let her keep her job or pray she doesn't get an attorney.

jsnis

Now, the VP, director and boss have suddenly decided that they aren't going to offer her the temp position either. They feel the position is here at the headquarters in California, however that is not in the job description or was ever a requirement. As soon as she leaves, that will be considered her last day. I'm I mistaken, or is that now 2 implied and verbal contracts not followed through with AND the director making the statement that one of the reasons it wouldn't work is because she won't be able to travel in a few months, then she's on maternity leave and it would put too much of a burden on the boss?

Any reason why this employee should not contact a lawyer?

mbeam

[font size="1" color="#FF0000"]LAST EDITED ON 04-16-03 AT 06:50PM (CST)[/font][p]If the team she works with (VP, Director, Manager) cannot come up with a better response than "position needs to be here", advise them as a prior poster did also to get the checkbook out. In training, we use case studies to drive home the points. When our managers see how costly an error in judgement can be (as decided by a judge & jury), they often see the light and are much more proactive in seeking input before making personnel decisions.

If the comment about "maternity leave and inability to work" was addressed to her then I would strongly recommend to them and the CEO that they find a way to attempt what was promised to her at least on a trial period.

Would coach it to the managers on the team as "What do we have to lose?" and follow with.... a whole lot more by not giving it a shot particularly since she's offered to pay for the travel expenses herself.

What has her performance been like while she's been employed? If she has a good reputation & delivers on objectives would seem to be even more reason to try it. Also, would be sure to point out the impact on those still working for you - how will this resonate with them particularly other females if they hear about this?