“Diapers to Desk” Employment Law Q&A with Casey Denson

PELA Lawyer Casey Denson was featured on the website of Diapers to Desk, a fascinating company with the mission of changing the culture and educating employers on how to support and engage working parents. In this Employment Law Q & A, Casey answers questions related to announcing a pregnancy at work, worker protections, and negotiating paid time off. Scroll down to read her insights. You can also check out the post on Diapers to Desk’s website by clicking here.

As a long term contractor of a company, can I get fired when announcing I’m pregnant?

Great question. Many people have heard that Louisiana is an “at will” state, which means that you can be fired for any reason. However, that’s only partially true. You can only be fired for a reason that is not illegal. So, the question becomes, are there any laws which prevent your employer from engaging in pregnancy discrimination? And, are you covered by those laws?

Title VII, a federal law which prohibits gender discrimination, including pregnancy discrimination, only protects “employees” from pregnancy discrimination. You note that you are a contractor, as a result, it is possible that this law does not protect you. However, the way you, and even your employer define “contractor” may not be the same as the Title VII’s definition of “contractor.” As a result, you may actually be an employee who is covered under the law despite having the title of contractor. Because of that, you would want to consult with an attorney to help assess whether you are entitled to the protections of Title VII. Some considerations a court might use to decide whether you are a contractor, or an employee, are: where your work is employed, who furnishes the tools and materials, the level of skill required to perform the work, whether you are paid per job or per hour/week, whether you have benefits, and many other factors as well. 

If you are an “employee,” as defined by Title VII, you are only protected if your employer falls under Title VII. For example, your employer must employ 15 or more employees.  State law also protects employees from gender discrimination, although the employer must have at least 25 employees. Some other employers are exempt from Title VII as well.

Now, even if you are protected by Title VII or state law, you can still get fired when you announce you are pregnant, but you cannot be fired because you are pregnant. Certainly, firing you when you made the announcement would look highly discriminatory, especially if you were performing well and then suddenly were terminated following the announcement.

One important suggestion I have for people in this situation would be to follow up any verbal announcement with an email. That way, if you are terminated, or face other unwarranted discipline, your employer will not be able to argue that they did not know you were pregnant. Like anything that is not in writing, memories fade, and later, your employer has an incentive to forget or misremember facts, once faced with a legal action. 

If you employer takes an action against you after the announcement, you’ll want to talk to an attorney about your rights. The laws are too complicated for a google search to guide you through these issues.

Is it up to employers, or up to the state laws, for whether I’m required to exhaust my PTO and sick time before using my short-term disability? Is there any negotiating this?

I really like this question because it raises the idea of negotiating your maternity leave. Like any job benefit (salary, paid time off, etc.), maternity leave, and maternity pay, can be negotiated. 

State and federal law set a floor for what must be provided to employees, and then companies get to decide what they want to provide to employees above that mandated floor. 

In America, the floor is set very, very low. According to federal law, under the Family Medical Leave Act (“FMLA”), some employees, at some companies, are entitled to 12 weeks of unpaid leave. If your company is too small, or you have not worked at the company for long enough, this federal law will not apply. While on leave, the FMLA allows an employer to require an employee to use accrued paid time off, it also allows an employee to elect to use paid time off while on leave. 

Under state law, you may still qualify for leave (six weeks of unpaid leave) if your employer has over 25 employees, and your employer also must provide you with the same disability leave and benefits as it provides to other temporarily disabled employees. 

As always, its best to obtain legal advice on what laws apply to you, and your employer, from an attorney who focuses on employment law.  

In addition to providing the minimum unpaid leave required by state or federal law, employers can decide to provide additional unpaid leave, paid leave, short term disability insurance, or a combination of all of these. You can also purchase your own short-term disability insurance. The amount of pay you receive under the short-term disability insurance depends on the policy, sometimes its 100% of your salary, sometimes it’s less. You will want to check with your employer and the insurer to see what kind of benefits you are entitled to.

While you are on leave, some employers require you to exhaust all the paid time off available to you (or just some), and then have you take the remainder of your leave without pay. Other employers allow you to retain your previously accrued paid time off and choose to remain unpaid for the entirety of your leave. This gives some employees the option of prolonging their leave, by taking paid time off after their unpaid job protected leave runs out. And of course, generous employers may give you paid maternity leave without requiring you to use previously accrued paid time off.

Importantly, if you are covered under the FMLA, and are entitled to disability benefits while on FMLA leave, in most instances, your employer cannot require you to use paid time off during the time you are eligible to receive disability benefits. 

If you are not covered by the FMLA, your employer can decide whether you are required to exhaust any paid time off prior to receiving short term disability benefits. Any paid leave you receive will likely decrease the short-term benefits you receive. This is because, typically, your insurer will not pay you benefits that would result in you earning more than 100% of your typical income. You should discuss with your insurer what you anticipate being paid, and ask how that will affect your benefits. Also, the insurer will likely require that your disability benefits commence when you become disabled, and you will probably not be able to delay the start date of benefits. Therefore, it’s unlikely you can work with the insurer to start your disability insurance after your paid leave or paid time off ends.

The best general advice is to check with the insurer to understand your benefits, research your employer’s policies, discuss your rights with an attorney who focuses on employment issues, and then craft a negotiating position to bring to your employer. 

Issues related to pregnancy and parenting in the context of the workplace are fact specific and complicated. If you need advice on addressing pregnancy discrimination or just want to understand your rights, contact a PELA lawyer today.

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