Critics have slammed some companies for laying off American workers on parental leave in recent months. But staff on protected leave are not immune to mass layoffs, labor lawyers told Insider. This can be discriminatory, but only if companies target employees because of their furlough status. Something is loading.
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Tech companies such as Meta, Google, Amazon, Salesforce and Microsoft have laid off tens of thousands of workers in the United States in recent months as they adjust to what they see as an uncertain economic outlook, with a potential recession looming.
However, some of the stories that have drawn the most attention and outrage on sites such as LinkedIn are of workers whose companies fired them while they were pregnant or on parental leave.
A former Google employee who at the time was 34 weeks pregnant told Insider she was troubled by his decision to fire “a woman in her last pregnancy” and said it was “almost impossible for me to look for a job.” Another was made redundant hours before giving birth, while a married couple with a 4-month-old baby – including a mother on maternity leave – were made redundant.
“I’ve seen too many expectant mothers and furloughed mothers being fired and it’s just not right,” one person commented on LinkedIn, while another said she thought he 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 United States.
Does the FMLA protect workers against mass layoffs?
Under the Family and Medical Leave Act, or FMLA, workers in companies with 50 or more employees are entitled to 12 weeks of unpaid, job-protected leave for specified family and medical reasons.
This could include parental, foster and adoption leave, people with a “serious medical condition” and those with caring responsibilities. When returning to work after an FMLA leave, the Department of Labor says employees must return to the same or nearly identical job.
But their jobs are not protected in the event of mass layoffs. It comes down to whether a company is targeting an employee because of their furlough 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, employment law attorney at Levine & Blit, told Insider. “You just can’t fire them because they’re on maternity leave.” So if your whole team is laid off and you’re on furlough, there might not be much you can do.
The FMLA is an “attempt to ensure that you are not disadvantaged because you needed to take time off for a protected reason,” said Joe Brennan, a law professor at Vermont Law and Graduate School.
“But Department of Labor regulations state that an employee who is on furlough is no more entitled to benefits or employment than another,” Brennan said. “The purpose of the law is to treat someone who is on leave the same way they would treat someone who is not on leave.”
What protections do pregnant workers enjoy?
Workers have certain protections if they believe they were fired because they were pregnant.
Under Title VII of the Civil Rights Act of 1964, female workers cannot be fired for being pregnant.
Meanwhile, under the Americans with Disabilities Act, employers cannot discriminate against workers because of a disability, including pregnancy-related, that requires reasonable accommodation at work. A pregnant employee may have the right to alter her role in some way to accommodate her pregnancy, such as moving from a more physical job to one with lighter duties.
But the FMLA does not protect workers from mass termination if the reason “has nothing to do with their pregnancy,” Megan Carannante, labor attorney at Pullman & Comley, told Insider.
Proving you were fired because you’re pregnant or under FMLA is ‘incredibly difficult,’ but not impossible
Heather Hammond, labor and human resources lawyer at Gravel & Shea, said that when companies make mass layoffs, managers typically use what they consider to be objective criteria, such as seniority, attendance and performance ranking of employees to decide who to cut.
Brennan said that, for example, if the company decided to lay off the most recent hires or close an entire department, which included staff on FMLA, it likely wouldn’t be discrimination because the decision to let those staff was unrelated to their leave.
But companies need to look for unintended bias, Hammond said. Brennan said firing people based on the number of hours worked in the previous month, for example, would unfairly target those on furlough.
To prevail in a lawsuit, the pregnant or parental leave worker would have to prove that her status was a factor in the company’s decision to fire her, Navruz Avloni, labor and civil rights lawyer at Avloni, told Insider. Law. . “It’s incredibly difficult to meet that standard of proof in the context of a mass layoff,” she said. “However, it was done.”