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Wednesday, August 05, 2009

Maternity Leave Problems

I’m the managing attorney at a small law firm. We have an employee (paralegal) who is currently out of the office on maternity leave. She’ll be out until September. Her work product prior to leaving was average. However, now that she is not here, I’ve learned of various tasks that were mishandled to the point that I feel that she needs to be “written up” for her poor performance. How can I (should I) do this while she is out on maternity leave?

I just want to point out that I am not a lawyer, but you are. Ha! Actually, I write this to demonstrate that should somebody else need legal advice in an employment situation, it's important to find someone who practices employment law, as clearly not all lawyers can address all situations. (This, of course, is true for everything. You don't want a criminal lawyer handling your merger either.)

First the lecture: How could you not know until she went out that there were problems? Not saying that things can't be hidden from managers, but when you wait until the person is out on maternity leave, it looks awfully suspicious. In fact, as a lawyer, you know that this looks suspicious, which is why you are asking.

Now, the instructions. Document as you would if she were still working. Keep to the strict policies that (I hope!) you already have in place. Make sure you don't hold her time off against her. I presume she's not eligible for FMLA because you are a small firm, but if she is, remember that any time off for FMLA can't be considered in performance appraisals and similar.

You need to treat this exactly the same way you would treat it if she were still in the office--with the exception of actually calling her up and saying anything. That will not go over well and even if she knows it is all true (which she may not, denial runs deep in the bad employee world), she will take this as a sign that you want to fire her for having the audacity to have a baby.

When she returns from maternity leave, you welcome her back and look at all the pictures of her darling little baby. (And hope to heck the baby is darling--there are some ugly ones out there and gosh it's hard to be polite when a picture of a little troll is shoved under your nose.)

Then, invite her into your office and explain what you've learned and how it is a problem and work with her to develop a plan to avoid this in the future. The key point here is that you must treat her exactly the same as you would treat anybody who didn't just have a baby. Best way to cover your behind is to treat everyone the same.

Now, this all assumes that what she's done wrong is not a fireable offense. (Note to picky people--I realize you don't need a reason to fire someone in the US, but most companies don't generally fire people just because. Besides, that's not nice.) If this is a fireable offense you need to fire her, but only if you would have fired someone else for the same thing.

Now, I know it's sticky because of the whole baby thing. This is why I like frequent performance reviews and one-one communication because you don't want things like this getting out of hand and having no one know anything until suddenly the person is in a protected class. Like, you don't want to be quiet and hope that a situation gets better and five minutes before you planned to finally discuss it--after 6 months of worsening behavior--have your employee announce she's pregnant, gay, born-again-Christian, Pagan, or something else. You know the reason you're having the discussion is the bad work behavior; the employee sees it as discrimination against whatever she is/was/will become.

Being a manager is tough. That's why managers get paid more.


Anonymous said...

One thing that comes to mind is how you're "learning" of these discrepancies. If you've heard about the problems from employees, I would not write anything up until you've spoken to the employee herself.

Anonymous said...

I agree with the first comment. Don't automatically write-up this employee. Let's have some due process here. Tell her that while she was out you discovered some issues that you would like to investigate and that you expect her full cooperation. Don't accuse or belittle, just explore the facts as you know them. Get her side of the story and then decide based on whole, known picture. There are sometimes logical explanations for employee behaviour - often times it's just laziness or a simple miscommunication. Most reasonalbe people, once they know the boss is on to them, will change their behavior immediately. Ask some questions and see what happens...

Anonymous said...


Anonymous said...

I have worked with a couple of average employees then found mishandled tasks after they left. You need to be sure the task was actually mishandled by the employee in question (not passed off by someone else). I would also suggest you check on the timing of the average performance and the supposedly mishandled tasks. Otherwise intelligent women have been known to completely lose the plot when pregnant and you could easily end up in hot water if the poor performance was a direct or indirect result of her pregnancy. For instance, many pregnant women get morning sickness. If someone isn't eating properly, they can feel tired, have dizzy spells and generally not think clearly. It would then be easy for them to unknowingly mishandle a task. In many places, to fire someone in this case would be unlawful. So you need to ask questions and investigate before making a final decision.

If you find the employee did do wrong and that the poor performance was unrelated to the pregnancy, then you need to treat this person in exactly the same way as any other employee.

HB said...

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Anonymous said...


novice_hr said...

sorry this is not related to the issue but I just wanted to comment on your "baby" comment, EHRL. I totally agree with you!! Not all babies are cute, some can pretty weird looking.. =)

Anonymous said...

Dear Sweet evilHrlady,

I really appreciate ur blogs. very interesting to read.

i am from India working as a HR.i am with a new private entity run as a family business. however as they are going for ISO certification they want me to prepare a Leave policy.

As a rule it is six weeks before and six weeks after the delivery i.e 90 days. and in 2008 the indian govt. has extended this to 180 days.[for govt. employees]

Bu my management is adamant about 3 weeks before and 3 weeks after benefits i.e 6 weeks in total.

As a private organization, are we required to follow the maternity benefits rule as per the rule for govt employees?