I’ve been counseling employers for almost 14 years. One thing that’s become clear over that time is that no one wants to have to call their employment lawyer! But the truth is many companies would be better off if they called more often. It’s usually much cheaper to find out the law and best approach to an employment situation before it leads to litigation or other disputes. This is definitely true when you’re dealing with a complex scenario involving a pregnant employee, for example.
So, what does a call with an employment lawyer sound like?
My actual conversations with clients are confidential, of course. But I can summarize the tone from 1000s I’ve had over the years by way of example. The facts and circumstances of this scenario involving a pregnant employee are purely hypothetical and should not be followed as guidance for any actual situation. Most likely, I would have more background information about the employer before taking this call. Local and state laws also vary and could alter any legal considerations.
“We Have This Employee. . . .”
Client: “Hi, Scott.”
Lawyer: “Hi. How are you? Oh, I know, you’d be better off if you weren’t calling me.”
Client: “Well, nothing personal.”
Lawyer: “No, I get it. None of my clients ever want to be speaking to me about work. It’s the nature of my business. Anyway, how can I help?
Client: “We have this employee. She’s not really working out. She’d had performance issues for a while, and we’d like to move on . . . . But . . . .”
Lawyer: “Yeah, there’s always a ‘But’!”
“She’s Pregnant”
Client: “Afraid so, or I wouldn’t be calling. Before we had a chance to do anything about her performance issues, she told us last week she’s pregnant.”
Lawyer: “I see, well congratulations to her, but you’re worried about trying to let a pregnant employee go?”
Client: “Yes, but, that’s not everything. She had also filed a harassment claim against a co-worker a few months back. And she’s still angry that we didn’t fire the guy she filed it against.”
Lawyer: “Alright. Let’s try to work through this. First, how long has she been working there?”
Client: “Only nine months. She’s our receptionist and also does some of our social media.”
Lawyer: “So, she’s not FMLA eligible yet, but might be eligible for New York Paid Family Leave. Is she full-time?
Client: “Yeah, she works 40 hours. At least, she’s supposed to be working. She spends most of her time on Facebook.”
Lawyer: “You mean doing personal things, not managing the company’s social media.”
Client: “Right. But that’s not the real problem. We should do a better job of policing that and re-directing her. But the bigger problem is that she also answers phones and greets people who come into the office. But her personality is hit or miss. She’s not rude, exactly, but not always friendly either. Plus, she gets messages wrong, forgets to pass them along, etc. We’ve had a few complaints since she started.”
Lawyer: “Has she said when the baby is due?”
Client: “About 3 months from now.”
Lawyer: “So, at that point, she might be eligible for FMLA leave too. Did she get the paperwork on that?”
Client: “Not yet, but that’s one thing we needed direction on. As you know, we have over 50 employees, so we do have people eligible for FMLA. But since she hasn’t been here a year yet, we didn’t know how to handle it.”
Lawyer: “If the leave will begin after she has been there for a year and she meets the other requirements–so if she will have worked 1,250 hours over the past year when her leave starts–then she would qualify for FMLA leave. So you should probably at least give her the FMLA paperwork at this point to avoid a technical violation there.”
Client: “Does that mean we have to keep her on until after her 12 weeks expires?”
Lawyer: “Not necessarily. Even if she becomes eligible for FMLA leave, you don’t have to retain her if you have other legitimate grounds to end her employment. But, of course, it can’t be because of her pregnancy or leave. And even if it isn’t, she could claim it is discriminatory to let her go.”
Client: “So, are we better of waiting until she has the baby and then fire her after she comes back?”
Lawyer: “Not necessarily. That could still be discriminatory or retaliatory.”
“What Should We Do?”
Client: “Okay, you’re the expert. What should we do with her?”
Lawyer: “I know you don’t want to hear it, but like so many of these situations, it depends on various factors and considerations. But it comes down to why you’ve kept her on this long and now want to let her go. If it’s at all related to the pregnancy, then you probably shouldn’t do it. Maybe she’ll take the leave and then not come back, but if she wants to come back, you’d need to let her.”
Client: “We don’t have a problem with her being pregnant. If she were doing her job, we’d be happy to let her take the leave.”
Lawyer: “Then you have to be able to explain why you’re considering letting her go now. Did anything happen recently that’s of particular concern?”
Client: “Remember I mentioned she filed a harassment complaint against a co-worker?”
Lawyer: “Yes. We needed to get back around to that too.”
Client: “Yeah. She claimed a guy who has worked here for 20 years was hitting on her whenever he walked in the building. Now, he’s a salesman who works remotely, so he’s only in a few times a month. She didn’t make any extreme allegations, just that he was too flirty. We investigated it and directed him to stop, and he has.”
Lawyer: “Okay. But has become relevant again?”
Client: “Yes. We need to promote this guy to a director of sales position where he will be in the office full-time. So he’d walk past her every day. Probably multiple times every day. But he refuses to work in the building as long as she’s the receptionist.”
Lawyer: “Is that why you want to let her go now?”
Client: “That’s not the only reason. We know we can’t fire her because the guy she complained about doesn’t want to work in the same building with her. It’s just that we have had these performance issues and they’re not getting better. Eventually, we’d have to let her go. But between the pregnancy and trying to promote the sales guy, we don’t know what the best approach is.”
Lawyer: “Right. I see you’re trying to do the right thing, but there seems like landmines in every direction.”
Client: “Pretty much. So that’s why we called you.”
“Any Alternatives?”
Lawyer: “I understand. Glad you did. Now, let’s see. . . . Just by chance, are there any other open jobs that she might be able to do without the same performance issues?”
Client: “We could try to make her an administrative assistant.”
Lawyer: “But it sounds like she’s already had problems with messages and communication. Would that be a factor in those jobs?”
Client: “Yes. It would just move her from the front desk and maybe solve the problem with the sales guy.”
Lawyer: “I don’t really want you to create new problems in trying to solve this one. If we figured out the right approach, would you consider offering her a severance package?”
Client: “We might be able to pay her a month’s pay and continue her health insurance. I guess that would become an issue for her with the baby and all.”
Lawyer: “Good point. So she’s taking the company’s insurance?”
Client: “Yes. She is. She is married, but they have family coverage through us. He might have it available at work too. I don’t know. Maybe ours is a better deal.”
Lawyer: “Sure. That could be an issue. If he has coverage, then losing yours might not be as bad. But she’s looking at some disability and PFL benefits coming up when she has the baby too if she were still employed. And if he doesn’t have insurance available, they might have to go on COBRA coverage. She would probably get unemployment.”
Client: “Yeah. We wouldn’t contest the unemployment.”
Lawyer: “Okay, how bad has her performance been? Has it gotten any worse lately?”
Client: “It’s just ongoing mistakes. No single recent incident.”
“Severance Package?”
Lawyer: “Alright, overall, I’d say there is some risk of some kind of pregnancy or even retaliation–for the harassment complaint–claim if you fire her now. But that doesn’t necessarily diminish as time goes on. Maybe it would get easier if she does something really bad, but you don’t want that either for operational reasons. Some options include putting her on a formal performance improvement plan and seeing how that plays out or just having a conversation with her now pointing out the performance problems and noting that you have to let her go but will offer a severance package. There’s no perfect solution. If she says no to the severance and you fire her, then she might make a claim.”
Client: “But if she agrees to the severance, then we’d get a release and she couldn’t sue us?”
Lawyer: “Yes, we’d make the severance contingent on her signing a release.”
Client: “Okay, I got it for now. I’ll go back and speak to the managers involved. I’ll probably be giving you another call once we decide how to handle this.”
Lawyer: “Sounds good. I’ll be here. Hopefully, there’s a way to make this work out okay for everyone.”
Client: “Hope so. Thanks.”
Some of these calls lead to a straightforward solution. Others, like this hypothetical one, involve balancing risky alternatives. But understanding the risks better allows better decisionmaking and helps avoid obvious missteps.
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