- Critics have slammed some companies for laying off US workers on parental leave in recent months.
- However, staff on protected leave are not immune from mass layoffs, labor attorneys told Insider.
- It can be discriminatory, but only if companies target workers because of their licensing status.
Tech companies including Meta, Google, Amazon, Salesforce and Microsoft have laid off tens of thousands of workers in the US in recent months as they adjust to what they say is an uncertain economic outlook, with a possible recession.
Some of the stories that have drawn the most attention and outrage on sites like LinkedIn, however, are those of workers whose companies fired them while they were pregnant or on parental leave.
One former Google employee, who was 34 weeks pregnant at the time, told Insider she was troubled by the decision to fire “a woman in the final stages of her pregnancy” and said it was “almost impossible to look for a job .” Another was fired hours before giving birth, while a married couple with a 4-month-old baby – including a mum on maternity leave – were both let go.
“I’ve seen too many pregnant women and mothers on leave get fired and it’s just not right,” one person commented on LinkedIn, while another said he thought it was “unethical and unprofessional” to fire someone who was about to have a baby.
But labor lawyers told Insider that people who are pregnant or on paid parental or medical leave are not automatically protected from mass layoffs, including those currently sweeping the US.
Does FMLA protect workers from mass layoffs?
Under the Family and Medical Leave Act, or FMLA, employees at companies with at least 50 employees are entitled to 12 weeks of unpaid, work-protected leave for certain family and medical reasons.
This could include parental leave, fostering and adoption leave, people with a ‘serious health condition’ and people with caring responsibilities. When returning to work after FMLA leave, the Department of Labor says workers must return to the same or nearly identical job.
But their jobs are not protected in the event of mass layoffs. What it boils down to is whether a company is targeting an employee because of their leave status, or whether the company would have let them go regardless.
“There’s no law that says you can’t fire someone on maternity leave,” Matthew Blit, an employment attorney at Levine & Blit, told Insider. “You just can’t fire them because they’re on maternity leave.” So if your entire team is let go and you happen to be on leave, there may be little you can do.
The FMLA is an “attempt to make sure you’re not disadvantaged because you had to take time off for a protected reason,” said Joe Brennan, a law professor at the Vermont School of Law and Graduate School.
“But the regulations from the Department of Labor state that an employee who is on leave has no greater right to benefits or employment than someone who is not,” Brennan said. “The intent of the statute is to treat someone on leave the same way you would treat someone who is not on leave.”
What protection do pregnant workers have?
Employees have some protection if they believe they were fired because they were pregnant.
Under Title VII of the Civil Rights Act of 1964, employees cannot be fired because they are pregnant.
Meanwhile, under the Americans with Disabilities Act, employers cannot discriminate against employees based on a disability, including a pregnancy-related disability, that requires a reasonable accommodation on the job. A pregnant worker may be entitled to change her role in some way to account for her pregnancy, such as switching from a more physical job to one with lighter duties.
But the FMLA doesn’t protect workers from mass layoffs if the reason “has nothing to do with their pregnancy,” Megan Caranante, an employment attorney at Pullman & Comley, told Insider.
Proving you were fired because you’re pregnant or on FMLA is ‘incredibly difficult’, but not impossible
Heather Hammond, an employment and human resources attorney at Gravel & Shea, said that when companies make mass layoffs, managers typically use what they consider to be objective criteria, such as tenure, participation and employee performance rankings, to make their decisions. who will Tomi.
Brennan said that, for example, if the company decided to lay off the latest hires or close an entire department, which included some staff on FMLA, that likely wouldn’t be discrimination because the decision to let those staff members go to leave had nothing to do with their leave.
But companies should look for unintended bias, Hammond said. Brennan said firing people based on how many hours they had worked in the past month, for example, would unfairly target people who were on leave.
To prevail in a lawsuit, the employee who was pregnant or on parental leave would have to prove that her condition was a driving factor in the company’s decision to terminate them, Navruz Avloni, an employment and civil rights attorney at Avloni, told Insider Law. . “Meeting that standard of proof is incredibly difficult to do in a mass layoff,” he said. “However, it has been done.”