There are amazing conversations happening in LawyerSmack all the time across all types of practice areas. Here is one that came up about leave for pregnant employees that eventually turned into a conversation about lawyers being pregnant and work-life balance. (Does it even exist for lawyers?)
Ted [3:34 PM]
Yo, can small employer (<50 employees) terminate employment of a brand new employee that just notified employer of a pregnancy?
Kate [3:34 PM]
that seems like a bad idea (I have no experience in this area of law).
Ted [3:34 PM]
I know you don’t get FMLA, and there’s a questionable issue on discrimination.
I know if you’re a major employer, that’s an absolute no, but this is legitimately a size company that can’t afford to have someone on board that isn’t producing
Patricia [3:37 PM]
Lol, not unless you want a lawsuit.
Ted [3:38 PM]
Keep in mind, this is also in the South, so fed protections are only defaults. Let’s say employer has 14 employees currently, and pregnant girl makes 15.
Patricia [3:39 PM]
Well Title VII covers employers with 15+ employees.
Ted [3:39 PM]
True. Company has very restrictive leave policy, which is not FMLA. If employee takes FMLA leave (even though co is not FMLA obligated), what do they have to provide to her during her leave?
Patricia [3:40 PM]
My guess would be that likely there’d be a cause of action under the Pregnancy Discrimination Act. They may be required to provide some sort of leave to the extent that they’d provide it for other similarly situated employees.
Ted [3:42 PM]
She would not have accrued PTO by the time she takes leave.
Patricia [3:42 PM]
I’d check ADA case law and see if there’s anything in the circuit for this. Yeah, but if there’s any leave time available to her, I’m not sure the employer escapes at best a PR disaster – And by leave time I mean paid/unpaid/anything.
Patricia [3:43 PM]
I’m honestly surprised the employer doesn’t have anything in policies about this.
Ted [3:44 PM]
It’s small employer that’s added 7 employees in the last 10 months, so that’s why.
Patricia [3:44 PM]
Oh yeah that’ll do it. Yeah I’d be looking at temporary disability leave time/ADA requirements in your circuit to see what they say about this tbh. But to me it looks like she’d have a pretty good case for pregnancy discrimination.
Nate [3:47 PM]
@Ted Just curious, did they take the action prior to consulting with you or are they coming to you for advice before taking the action?
Melissa [3:47 PM]
I would say treat it like she is getting hit by a bus and you just have a fair idea of when about the bus is coming.
Ted [3:47 PM]
They made offer last week, she accepted over weekend, notified them this morning of the pregnancy. They consulted with me on next steps.
Nate [3:48 PM]
Ok. Good! They’re smarter than I thought. Phew. That makes sense, at least they consult with their Counsel prior to letting her go.
Chadwick [3:49 PM]
They’re going to have to wait until she gives birth. Or goes out.
Ted [3:49 PM]
Yeah, I always forget what kicks in and where in this 15-25 employee range.
Chadwick [3:49 PM]
And once the clock runs on whatever disability she receives, THEN it might be safe to terminate MAYBE.
Patricia [3:50 PM]
Yeah I tend to agree with @Chadwick
Chadwick [3:50 PM]
I mean you still might get sued – But it’s not like “ha ha you’re f**ked” It’s “ugh we have to defend this.”
Patricia [3:50 PM]
Based on those facts, my guess is you do anything to terminate her now and you get to deal with the EEOC who will make your life so deeply unpleasant
Taking Full Leave And Wanting The Employee Anyway
Ted [3:50 PM]
The main issue is that they actually really want her, but it’s for a sales job, and it’s really hard to build up commissions when you’re just getting rolling then you’re out just as long as you’ve been in.
Chadwick [3:51 PM]
If she’s good, they’ll deal with it.
Melissa [3:51 PM]
Doubt she takes full leave.
Chadwick [3:51 PM]
Women get pregnant. It’s a thing that happens. She doesn’t get leave @Melissa
Ted [3:51 PM]
So one of those, “it would probably be in your best interest to hit the ground running after you deliver, but the law says…” scenarios.
Chadwick [3:52 PM]
FMLA doesn’t apply
Melissa [3:52 PM]
Also depending on field it could be an awesome closing tool.
Ted [3:52 PM]
It’ll be a wash in this industry. Won’t matter one way or the other.
Patricia [3:52 PM]
Yeah, that’s what it looks like to me @Ted
Melissa [3:52 PM]
Sorry @Chadwick
I meant I I suspect that this is a two week situation.
Chadwick [3:53 PM]
Disability is what, 6 and 8 for birth?
Melissa [3:53 PM]
But being in sales also means she is probably charming and persuasive.
Chadwick [3:53 PM]
Six weeks on a vaginal birth, 8 on a cesarean? Something like that.
Melissa [3:53 PM]
Only if you get a doc to sign for that.
Chadwick [3:54 PM]
Never met a doc who wouldn’t.
Patricia [3:54 PM]
^^
Melissa [3:54 PM]
Was my understanding.
Chadwick [3:54 PM]
If something happens and you gave less, hello malpractice. Since it’s basically a gold standard. OB/GYN already being a malpractice magnet. Worse than any other.
Patricia [3:54 PM]
Lol, yeah, sorry @Ted, but this set of facts isn’t good for your client
Chadwick [3:55 PM]
One of my best friends from LS is in the “brain-damaged baby case” industry
Melissa [3:56 PM]
Yeah, baby damages get huge awards
Chadwick [3:56 PM]
Only because of the lifetime care costs. A dead baby is worth bupkis in PI.
Melissa [3:56 PM]
But women, not so much.
Chadwick [3:57 PM]
Working woman dying due to malpractice at age 30? Damages galore.
Choosing Between Getting Pregnant and Keeping Your Job
Rachel [4:35 PM]
It’s a sad state of affairs when a woman can’t have a kid without fearing she will lose her job just for the fact that she is creating life
Ted [4:39 PM]
I think it’s a hard choice either way
If you’re a growing company and lose 7% of your workforce for months on end, that isn’t easy either
Erin[4:41 PM]
How far along is she? I know you don’t have to disclose things like that in the interview process, and she probably feared not being hired, but it’s a conversation that could have been had.
Melissa [4:45 PM]
@Ted
Clearly this means you should only hire women for senior positions because men have higher cardiac risks and don’t even give you any warning when they go out for weeks on end
Erin
You bring up an interesting point. If she had disclosed during interview and they had refused to hire her for that reason it reads to me like that would be acceptable because they would have had 14 employees at that point.
Erin[4:49 PM]
It would still be awful for them to reject her for that reason/at that point–but I’m not in this area of the law, so I have no clue re: legal consequences for doing so.
Rachel [4:50 PM]
Yeah but, no one would hire a pregnant person. Plus, you are nervous to even disclose until you hit that 12 week mark. Miscarriages happen.
I get that it is hard on an employer, but in furtherance of the human race, accommodations can be made. Not to mention, most women don’t even take a full leave. Many people I know only took off two weeks, which is not different from a long vacation.
That’s my moral stance, on a legal stance, yeah…good luck firing her because she can definitely come back and have a pretty strong case based on timing.
Ted [4:52 PM]
She’s end of first trimester, beginning of 2nd, somewhere in there
Rachel [4:53 PM]
Likely she was waiting for end of 1st Tri. I know a lot of women who had miscarriages didn’t tell anyone till 13-14 weeks out of fear of losing the baby.
Ted [4:53 PM]
The other wildcard is that there are 3 employees that could be considered full-time equivalents, so they might be well over the 15.
Rachel [4:54 PM]
Yeah, tough spot to be in for sure. But much better to butter up the new employee, see what she can do. She may be worth the “hassle” of her having maternity leave.
Ted [4:54 PM]
I thought that was generally acceptable: waiting until after the first trimester
Rachel [4:55 PM]
Yeah, I got hired on a job when i was 6 weeks pregnant. I did not disclose to the employer till I was 12 weeks. Were they pissed? Probably. But then the firm’s partner got pregnant 2 weeks later…so…I still work with the same people, obviously it all worked out.
Leave Policies In the Workplace
Ted [4:56 PM]
I had a situation where someone was going around and pulling the pregnancy thing just for the EEOC charge
Rachel [4:56 PM]
that is shady
Ted [4:56 PM]
Came to find out she hadn’t even looked for a job in more than a year, gets pregnant, and blasts out a bunch of resumes. She tried to get one of my guys, and they told her no after the offer was accepted and she disclosed.
Sent the lawyer the last payroll showing only 8 employees, and they disappeared. I think this situation is still pretty questionable, and it doesn’t build a lot of trust to drop that within a week of the offer going out, but I think it was driven more by fear than by deceit.
Melissa [4:59 PM]
They probably don’t have a lot of female employees. But realistically this kind of thing happening, you start looking for a new place to work. Even if you know that you are not having kids.
Ted [5:01 PM]
Actually, they are about 50/50, it’s just a really young company. Only about 20% of the workforce is even over 30. More than half are under 25
Melissa [5:06 PM]
So replacing all their women employees would probably be a significant disruption
Well probably only 70 or 80 percent.
Ted [5:07 PM]
They also just generally have had less than 5% annual turnover, so this is a big bump, even without the reason why.
Melissa [5:11 PM]
Yep. Working with her on a leave plan is a way better idea. Do it in the second trimester if you can. Bet she takes two weeks. But they are probably not understanding that this isn’t about just her, it is about half their workforce.
Ted [5:11 PM]
They know that, they’re actually more worried about her as a sales person. The sales cycle means that she’ll start hitting commissions right when she takes leave, then will have to spool back up again, which may discourage her. Then they’d lose an otherwise perfect hire.
Erin[5:13 PM]
I feel like if they have a conversation about it, then everyone would be on the same page and expectations managed.
Ted [5:13 PM]
Yeah, they’ve already committed to that
“Hey, so this is going to suck, and we’re going to do our best to work you through it, but just know it’s going to suck for a little bit, or at least for 90 days after you get back from leave.”
Rachel [5:15 PM]
“Congrats on your pregnancy, but let me tell you how much we are gonna hate you.” haha
Melissa [5:18 PM]
So she will start hitting commission right when she has to take unpaid leave.
You ALWAYS have to start over, that is just part of the plan. No one comes back from having a baby without the expectation that they are going to have to rebuild everything
Even if someone the next office over just took longer for a honeymoon
Ted [5:18 PM]
We just hope she knows that.
Melissa [5:19 PM]
Any downside to telling her as part of the leave planning?
Ted [5:19 PM]
Eh, I don’t think the honeymoon example always holds up.
Melissa [5:19 PM]
Yep sometimes people get shit for that too. Just more unusual.
Ted [5:19 PM]
I know a guy who basically got run out of his firm for taking an extended honeymoon, but the firm otherwise is very generous for parental leave.
Rachel [5:20 PM]
And this is why Europe is better than us.
Ted [5:20 PM]
(He was also lying about how long he was going to be gone for too)
Rachel [5:20 PM]
well, lying would be the main issue then lol.
Ted [5:20 PM]
Yep.
Melissa [5:20 PM]
Generous leave policies don’t actually means you have clients still when you come back. Super common to just have no work.
Rachel [5:22 PM]
Employers pretty soon are just going to require all employees to be sterilized, prevent any maternity or paternity leave from occurring.
“Beatings will continue until morale improves”
Pessimism And Embryo Freezing
Ted [5:23 PM]
Man, yall are some dour people, aren’t y’all?
Rachel [5:23 PM]
Im being facetious…part of my charm.
Ted [5:23 PM]
Is it, though?
Melissa [5:24 PM]
Not usually. Just had a lot of friends have serious issues.
Rachel [5:24 PM]
Is it?
Yes?
Also, ouch dude.
Ted [5:25 PM]
people’s elbow.
Melissa [5:26 PM]
The employers here are offering egg and embryo freezing.
Ted [5:27 PM]
At where?
Rachel [5:27 PM]
Also, yes i have had many friends with issues in being pregnant and employed. I am jaded regarding employers and how they treat women who choose to have kids.
Ted [5:28 PM]
I do agree, though
Melissa [5:28 PM]
Which isn’t the same but is a real recognition getting pregnant when you should can f**k your career. @Ted Microsoft and Bungee and Google
Ted [5:28 PM]
I think most employers are pretty bad at addressing parental care issues, and technology has done a fantastic job of helping to mitigate the issues caused by being away from the office
Dan[5:29 PM]
Just catching up on this discussion.
Melissa [5:29 PM]
Yeah, being awesome isn’t hard anymore.
Ted [5:29 PM]
I’m fairly confident that I would never want Microsoft, Bungee, or Google to have access, in any manner, to my unborn kin.
Dan[5:29 PM]
I had no idea how much I didn’t know about leave and pregnancy vs. business considerations until my wife got pregnant
Rachel [5:29 PM]
agreed. This shouldn’t also be seen as a purely “female” issue, as Dads should get time to bond initially too. (edited)
Choosing Work-Life Balance Over More Money
Ted [5:30 PM]
I don’t even think it’s a childcare issue, it’s just a general work-life balance issue.
Dan[5:30 PM]
I think a lot of the issues are simply a reflection of the priorities we have as a country.
Ted [5:30 PM]
The days of the 9-5 are just done.
Melissa [5:30 PM]
@Ted my daughter is a XXXXXX product.
Rachel [5:30 PM]
Right? 9-5? lol more like 8-6 is typical with pressure to stay later.
Ted [5:30 PM]
Statistically, productivity is flat, and we’re trying to push it up by adding work-day hours, but we’re having decreasing marginal returns
Melissa [5:31 PM]
Google is pretty 9 to 5. But they are an outlier.
Ted [5:31 PM]
You could pay someone 20% less, have them work 10% less, and they would be 40% happier.
rumple [5:31 PM]
Smaller places can get by on 9-5. We do.
Ted [5:31 PM]
Freeing up a spot for another worker.
andrew[5:31 PM]
Y’all are crazy if you’re working more than 40 hours a week.
Melissa [5:31 PM]
But I worked Emergency Management.
Rachel [5:31 PM]
I do 8-4, but I work with my friends. So not typical probably.
Ted [5:31 PM]
I easily work about 60, but I’m self-employed
Melissa [5:32 PM]
We were not allowed to work start up hours
Ted [5:32 PM]
I’m never “off”
Melissa [5:32 PM]
Like a state trooper will take you home not allowed
Rachel [5:32 PM]
I own a separate company that i do 4-6 – lol so i guess 50 hrs week.
Melissa [5:32 PM]
And things were literally on fire.
Ted [5:32 PM]
What’s the side hussle @Rachel?
Rachel [5:33 PM]
Started a different business as an extension of where i work in a different county.
Melissa [5:33 PM]
Because past 11-12 hour days you are functionally drunk and executive functioning goes first.
Rachel [5:33 PM]
We officially launch in 2 days!
Melissa [5:33 PM]
Awesome!
Rachel [5:33 PM]
Thanks y’all. I also freelance write on the side for more cash. Busy but it’s fun.
Ted [5:34 PM]
Exactly. You’re 80% productive after lunch, 50% productive after dinner. that means it takes from 7-9pm to do what could have been done between 8-9am. We also push “staying late” instead of “getting in early” which perpetuates the cycle, which is compounded by lack of sleep and regular exercise. The reason that AI scares the shit out of everyone is that it could end up being our largest productivity enhancer in two generations, and no one know what that would look like from a daily-life perspective
Rachel [5:38 PM]
I am a morning person, i love working 5am-2pm on stuff, past 3pm, im useless
Ted [5:38 PM]
Construction hours.
Rachel [5:38 PM]
Like right now…im on slack
hahaha
Ted [5:38 PM]
Get it out of the way. I’m a donut hole worker. I’m great in the mornings, and in the later afternoon. Mid-day is a complete wash for me.
Rachel [5:39 PM]
I’ve never heard that term before. I like it!
Ted [5:40 PM]
But that’s the exact opposite of a standard work day, so a usual 8-6 schedule is a waste of time for me.
Rachel [5:40 PM]
That’s when self-employed works.
Ted [5:40 PM]
I can do between 7-9 and 3-6 what most people accomplish between 8-6. But I have to sit in the office and field phone calls…
Rachel [5:41 PM]
I used to be 100% self employed and id work 5am-9am, then check in at 2-3pm and done.Bah that sucks you gotta still be in the office.
Melissa [5:41 PM]
Yeah, I can work early evening and morning
Ted [5:42 PM]
I’m trying to get into a routine of going to work out at lunch. It’s what my dad used to do.
Melissa [5:42 PM]
I like afternoons for meetings because people compromise easier.
Ted [5:44 PM]
I saw a study where people were most agreeable right after lunch. They tracked judges’ sentencing, and they got worse the further from a meal the judges got.
Rachel [5:46 PM]
So…bring food to court? Everyone wins?
Ted [5:46 PM]
pretty much
Hangry is a thing
Rachel [5:47 PM]
Oh yes it is, i get very hangry.
I’m like an angry toddler
lol.
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