What to know if you are made redundant while on parental leave

Losing a job is already one of life’s most difficult events, but losing it during parental leave creates an added level of stress for new parents and parents-to-be during what is meant to be a joyous transition.

“Firing someone while they’re on parental leave is both business risky and morally repugnant,” said Amy Beacom, founder and CEO of the Center for Parental Leave Leadership. “A simple bowel check lets almost anyone know it’s just not right. All the arguments for rationalizing it are just that – rationalizations.

Beacom said laying off employees on parental leave hurts morale and creates lasting brand damage, citing cuts on Twitter as a recent example.

“The time after the birth of a baby is one of the most vulnerable times in an employee’s life,” said Daphne Delvaux., a California-based labor rights attorney. “They also need, like really needmoney and health care. Being postpartum without money or health care is actually quite dangerous.

Beyond that, firing employees on parental leave is “an emotional robbery of a great bonding experience,” Delvaux added.

“The employee now has to spend their time looking for a job and begging for money with their family, instead of bonding and healing. I had a client who went to an interview for hired four days after giving birth, still bleeding from birth,” she said.

And yet, many employers continue to fire people on parental leave, while last series of mass layoffs showed this month.

“Right now there is definitely a really big wave,” Delvaux said. “All day I get emails mostly from women who have been made redundant on parental leave.”

But there are ways to defend yourself. If you’re a new or expecting parent and have been told a layoff is in the works or suspect a layoff is imminent, here’s what the parental leave experts want you to know .

Defending your interests starts with understanding the protections that exist to support employees. People often make the mistake of believing that it is illegal to fire someone while on parental leave because there are federal laws that prohibit discrimination based on pregnancy, childbirth, or related medical conditions.

“It is illegal to fire people because they are on leave, but it is not illegal to fire people because their duties are not necessary or because there are too many jobs and we have to do budget cuts,” said Delvaux. “It’s only illegal to intentionally select them for layoff because they are on parental leave.

The Family and Medical Leave Act allows eligible employees to take unpaid, job-protected leave after the birth of a child. Note that this only protects their specific role, not their general employment with the company.

“You can be fired while on parental leave, even though you are entitled to family and medical leave,” said Donna Ballman, a Florida-based employment attorney. “But your employer can’t choose you for termination because of your pregnancy or your FMLA leave.”

If you take FMLA, your employer has an obligation to make sure you return with the same position or an “equivalent” role that you held before you went on leave – as long as the job still exists. It’s a key question to ask yourself to determine if you’ve been singled out unfairly, Delvaux said: was your job cut or were you replaced?

If your role has been eliminated, you probably have little legal recourse. But if you were replaced, there are ways to fight back.

Being replaced does not mean that your team distributes your tasks after the loss of your job; it means that your exact work is done by someone else. It could be that the person who’s meant to replace a temporary furlough takes your job while you’re being fired, Delvaux said, or maybe you see someone with your old job title on LinkedIn a week after your layoff. .

To determine if you were specifically targeted because of your leave, Ballman recommended asking yourself, “Has your boss made any comments about your pregnancy or family responsibilities? Were you forced to come back earlier? Does your job description require a BA that you have, but the successful candidate does not? All of these could be indications of discrimination or violations of the FMLA, she said.

Delvaux said the only way to determine whether the dismissal was unlawful is to compare how your employer treated you with how they treated your colleagues who are not on leave.

“As a lawyer, the questions I’m asking here are: How many people have been laid off? How many people in your department have been laid off? How many people who were laid off were on furlough? Who is performing your duties right now? Are they also laid off?…Are any of your peers still employed?Are you more successful than them?You’ve been there longer than them?

If the answers to these questions lead you to believe that you have been targeted, you can bring your evidence to a lawyer. Attorney fees can seem daunting, but the first session is often a free consultation, and you can also find an attorney to take your case on a rush, meaning they get a portion of the damages awarded if you win. against your employer seek.

However, Delvaux warned that the onus is on employees to prove they were targeted solely because they took parental leave, and that is hard to do.

“The reason it’s difficult is that, unlike individual layoffs, layoffs are usually decided by a group. They are usually vetted by lawyers, usually board-approved,” she said. “As an employee, you had to prove that all of these people, this whole organization, had a specific bias against you. The employer is able to say, “Well, we fired people who weren’t on leave.”

Because of this heavy burden of proof, Delvaux said these cases are stronger if there was already discriminatory behavior before the employee went on parental leave.

In addition to winning a lawsuit, it’s possible to use what you know to get better severance pay.

You can hire a lawyer to do this for you, but there will be a fee. “I charge a fixed fee to review the deal with them and discuss their leverage and any changes I suggest in detail,” Ballman said of his clients.

The benefit of hiring a lawyer is that they can help you maximize your severance package.

“When I negotiate a severance agreement on behalf of an employee on parental leave, I do three things,” Delvaux said. “First, I secure the benefits so that the employee does not fall without income. Second, I’m asking for more money. If they want them to release their rights, the price is high. Third, I insist on a mutual NDA [nondisclosure agreement] or a neutral evaluation clause. This will protect my client’s reputation. This basically means that if the company is called for a referral, the employer is not allowed to disparage my client. »

You can also represent yourself and negotiate your own severance package. But you should know that saying “I just had a baby” is unlikely to cause the company to pay you more.

“What employers are afraid of is being sued and being held accountable,” Delvaux said. “And they get sued when someone starts to really investigate their rights and the evidence supporting a violation.”

A breakup agreement usually includes confidentiality and non-disparagement clauses. The company will want you to sign it and you have to make it clear to them that they will have to pay you a lot more to get you off the hook.

Speak like a lawyer and say you think your firing was discriminatory, mentioning that you plan to publicly post on social media about your firing while on parental leave, Delvaux suggested. You might say something like “that’s not enough severance because I was intentionally chosen because I was on leave, so I think that’s illegal discrimination,” a she advised.

Obviously, this is more aggressive than nicely asking for more severance, but it will likely escalate your request faster.

“Using strategic legal language, they can’t ignore that,” Delvaux said. “They have to do a little investigation, and that in itself is a headache. That takes time. … Very often what happens is, ‘OK, just increase the severance package. Double the allowance. This is what will happen on the other side.

Back up documents from your work computer to your home computer, because if you’re fired, you could immediately lose access. (But don’t take any confidential or proprietary information.) If you’re short on time, career experts recommend at least saving performance reviews, client testimonials, and anything else that might help you in your job search in the future.

Try to anticipate potential service disruptions if you can. Get familiar with yourself with state unemployment insurance and any disability benefits you may be entitled to after losing your job.

“Do they cut your insurance that day, at the end of the month or later? If you have a doctor’s appointment, due date or surgery coming up, you need to know ahead of time whether or not you will be listed as covered,” Ballman said.

Typically, company health insurance coverage expires on the last day of the month in which you last worked, but you may be able to find this in your specific benefits package.

And before you go on leave, make it clear to your manager that you plan to return. Delvaux recommended expressing in writing that your work is important to you and that you are eager to return.

“Managers may assume that because you’re already gone, it’s just easier for you to be let go,” Delvaux said. “They may even assume that you want to let go so you can stay home with your baby. This would be illegal discrimination, so you want to be able to prove that you never intended to be a stay-at-home parent.

Even if you think you have a great working relationship with your manager, attorneys urge employees to document online conversations and correspondence relating to your leave.

“If you end up not needing that, that’s fine,” Delvaux said. ” Prevention is better than cure. Not documenting only protects the business.