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Friday, January 04, 2008

Pregnant and Laid Off

Dear Evil HR Lady,

I have been working at this company for the past year and a half. We had a layoff in October 2007. This layoff affected our campus but I was not let go. However, they let employees know on November 29 and 30 that layoffs would happen again mid-December. I was notified that I will be affected.

My due date is January 6th and I was about to go on my disability leave. When I was informed of the layoff, I was told that it was merely to reduce headcount. I was
the only person to be laid off in my group of 10 people. They even hired a student recently and paid her relocation charge to move her.

I have always been a good employee and completed my work on time. My team mates can confirm this and I have emails and instant messages to prove this. I feel I have been wronged and want to know what my chances are of suing my employer for doing this to me just before I go on disability.

Thanks


Seeing how I wasn't involved in the layoff decision making process, I can't say how the decision was made and I can't say whether your pregnancy played a role, but I live to speculate so let's go at it.

First, the rules. It's illegal to fire you because you are pregnant, but it's not illegal to fire a pregnant woman for another reason. A reduction in headcount is a perfectly legitimate reason to fire anyone, regardless of protected class status.

So, how was that decision made? It could be "hey, she's pregnant and probably won't come back from leave anyway. Let's term her." This is illegal, but not saying it doesn't happen. It may never have even been spoken, but it could have been thought.

The decision could have been made by someone who doesn't even know you are pregnant. Honestly. Some reductions I have been involved in are done by creating criteria, feeding those criteria into a computer and the computer spits out the list of terms. Without the high tech aspect, a list of "rules" could have been made to determine who should go.

It could be based on your specific job. They feel that your tasks can be divided up between the remaining 9 employees.

As for the newly hired student, frequently companies will have policies against laying off someone hired within the past year. Why? If I hire you, move you across the company, and then lay you off 6 months later, you can argue that you hired me in bad faith, knew that the position was to be eliminated and sue you for breech of contract. You may or may not win, but it sure makes me look bad, which we don't want.

Not that laying off pregnant women makes companies look any better.

So, could you prevail in a lawsuit? I have no idea. Here is what I would do if I were you.
1. Call up the HR person that handled your termination and let her know you feel you were terminated because you were pregnant.
2. If she responds with a, "let's talk about your severance," then you can definitely negotiate higher.
3. If she responds with, "I'm sorry, but your pregnancy was not taken into consideration," call a lawyer.
4. Beware, a lawyer may end up charging you more than you could get in increased severance. Sometimes you can get an attorney that will take your case on a contingency basis. If so, make sure the contingency portion is above and beyond whatever benefits you would receive if you didn't sue.
5. Have your attorney contact the company.
6. Hope for the best.

Most likely, if you have any sort of potential case, they will negotiate with you immediately. This doesn't mean that you were terminated because of pregnancy, just that it would cost them more to defend against this charge than it would to pay you out.

Good luck and may your labor be short and pain free.

7 comments:

thomast said...

A very similar thing happened to my wife when she was pregnant with our first child. We consulted a couple attorneys, had one write a letter, and all she got was that they didn't contest unemployment, which I now realize they would have had a very hard time doing. In our case, in turned out that it was the leading edge of the dot-com bust and the division that she was working for was pretty much non-existant by the time our son was born.

HR Lady is right on point - it's frustrating (and probably financially terrifying) as all get out, but the likelihood of successfully suing to your ultimate financial benefit is probably pretty slim.

Red Jello said...

I was pregnant with twins and in bed for six months, and had to stay home with the twins until they were three months old (they were premies and on monitors). I survived seven (yes, seven!) corporate layoffs during that time. I thought I was going to be the first to be let go. Fortunately, I wasn't. I was later told it was not due to me being pregnant as the reason for retaining me.

Layoffs are hard. They are harder for those who have to make the decision. Trust me on that one. I've been in those shoes. As the decision-maker, you realize that you are making decisions for human beings with families and house payments, etc. I don't want to be in that position. But, given today's economy, it makes all businesses face tough questions regarding their budgets.

Wally Bock said...

The Evil One has given you sage advice. Let me share my bias and then my take on your situation.

Bias. I believe that, over the forty years I've been in business, we've encouraged people to assume that when something bad happens to them, there is a reason. That reason may be a bias or a giant conspiracy or simply the greed of management. In my experience, with my clients, most of the time that's not so. More often it's not your fault and it's not for any malicious reason, it's just the way the chips fall this time.

Bias. I believe that, over the forty years I've been in business, we've come to see litigation as the solution to all the situations seen by people who feel victimized.

Opinion. Be very wary of hiring attorneys to pursue your case. They cost money. Even if they don't (and work on contingency) lawsuits suck up an amazing amount of time and energy. If you're going to go the legal route, be very sure you're going to win, prepare yourself for the lawsuit to be your life for years, and ask "If I lose this and spend a bunch of money, do I still think it's worth doing?"

Anonymous said...

I'm pregnant, and was laid off yesterday. I was told 2 weeks ago that my job was secure. There is a woman at my job that could not successfully have children and she got in my face a number of times telling me that I was not allowed to talk about my pregnancy. Her and I had an arguement and I had to call in to work the next day because I was being monitored by my doctor for blood pressure. The next day I came back, I was terminated. I was told it was due to staff cutbacks and not my pregnancy. I'm not so sure of that.

Anonymous said...

"More often it's not your fault and it's not for any malicious reason, it's just the way the chips fall this time."

Great way of putting it, Wally - I believe this is often true, but so hard to accept when you are in these type of situations.

JP

Anonymous said...

I was pregnant and ended up out on disability 2 months early. I suffer from chemical imbalance/depression and I could not take a high enough dose of meds to control it so my psychologist released me from work duties up until I was scheduled to start my pregnancy leave. I was scheduled to be off from 6/1/08 - 10/01/08. Disability and Paid family leave. Since I was off 2 months earlier than expected, I agreed to come back 9/2/08. Well starting in June I get a letter from their lawyers office saying they didn't have my doctor note, which I promptly sent again with the faxed proof of date and time. I then got another letter stating that they included those 2 months that were not pregnancy related as pregnancy leave and per their handbook, they only allow 4 months total. Before I left the owners and I already discussed my time off with no objections. So when my official disability leave was over on 8/05/08 I was then taking my PFL. I got a letter from the company on 8/20/08 with a severance offer and termination. This offer was 2 weeks pay and that they would not contest my unemployment benefits and state I was laid off. The agreement was signed by the owner. WELL. They put on the EDD form "Employee failed to return to work after PDL and was terminated on 8/20/08." Further EDD denied my unemployment because they said I quit to take care of my kids (not true) and now I'm struggling to find work and pay the mortgage. CAN I SUE? Also note I have proof and information that these owners are actually lying on their application for citizenship and possibly one owner is in the country illegally.

Anonymous said...

I work in this company for 4 years. I am pregnant with my first children and I been doing my job in what I'm supposted to do.I told the HR person in my job that I am pregnant and what benefits did I have? I did not have any protection on maternity leave and even before I told my boss he gave me a letter that stay on the file for poor performace. The only concerned that I have was my Heath insurance. I was told that I was protected been pregnant at my job and I been lay off and they told me that was for poor performace.