Maternity Leave Discrimination?

Quabbly · January 2014

Hi, this is my first time posting on the boards! I'm due with my first on June 24 and feeling good.

I'm not feeling good about my employer. I work at a small law firm in MA-- less than 50 employees so FMLA doesn't apply, but MA law says companies are required to give employees who've been at the company more than a year (I have) 8 weeks unpaid with job security to return after their leave.

I informed my boss that I was pregnant about a month ago (when I was 13 weeks), and asked him to give me more details on the maternity policy-- which was not given to me when I tried to casually ask about it months ago before we started trying. He hemmed and hawed, said he knew they did 3 weeks paid paternity leave but wasn't sure about maternity leave since they hadn't had many women have babies while working there. I asked him to get back to me as soon as possible.

I then went to speak with the two women at the firm who have given birth while working there and both said they'd been given 3 weeks paid leave and an additional 9 weeks unpaid- 12 weeks total. One of these women is a junior partner in the firm and has had two children during her time here. She indicated to me that I would have the same leave.

So today, a month later, my boss came to me and informed me that the leave policy is 3 weeks paid and then the unpaid leave is decided on a case by case basis. I was stunned. I could barely manage to tell him what both women had told me about their leaves, that I most certainly would not be returning after 3 weeks, and that if indeed it is a case by case situation, he should know my health insurance is through my husband and so they've never paid a cent for my medical expenses.

The more I think about it though, I wonder if doing a case by case maternity policy is discriminatory. Of the other women, one is a junior partner in the firm and the other is an associate- I'm a legal assistant. I started working at the firm before the associate, so length of employment should have no bearing. Both of us are covered by our husbands' health insurance rather than the firm's.

What are your thoughts on this? Has anyone encountered such a policy? I will certainly research this further, but I don't even know where to start. Thank you for any input!

Quabbly · January 2014

Thanks. Our one and only bookkeeper/HR person was hit by a car two months ago and the firm has been winging it ever since... it's kind of a mess.

naturaloaklandmama · January 2014

I am a practicing attorney but I practice environmental law in California so by no means an expert on your situation. But I can assure you that if the state of MA entitles you to 8 weeks unpaid, than you are absolutely entitled to 8 weeks irrespective of whatever your employer feels like giving you. If they will not give you 8 weeks then you should file a claim with the Equal Employment agency. Its a cut and dry case in your favor. And you are absolutely right, they can't have a case-by-case basis for their maternity leave policy. I agree though, you need to speak with someone else in teh office. If these two women are attorneys -- I would go speak to them. They have more pull and should be more than sympathetic given that they are working moms as well. And avoid going to the EEOC until you have gone through all of the channels at work. Its ridiculous but you want to ensure you do everything you can internally before you make claims that might jeopardize your relationship with your superiors.

Finally, can I just say that I am disgusted by the maternity laws in the US. The fact that you have to FIGHT to get 8 weeks is absolutely abhorrent. But I digress to a larger public policy issue. Good luck!

AJC&Maggie · January 2014

There is a very specific MA law that states all employees must be granted the same maternity leave time. It must be equal amongst employees. I happened to see it when I googled
Massachusetts commission against discrimination
When I was searching my own leave info

Luna C · January 2014

I don't know the law in MA, but in PA I have heard of many companies that handle it differently for different employees. Fair or not, a company is going to do more to keep a hard-to-replace partner vs. a not-that-hard-to-replace assistant. (I don't mean that as an insult, but the numbers are what they are and it's a lot easier and cheaper to find a new assistant.)

It may not be fair, but it's likely not discrimination.

Given that it's a law firm, I'm sure they are well versed in what they can get away with.

naturaloaklandmama · January 2014

Irrespective of whether they want to keep an attorney vs. an assistant, they have to give you the minimum the state allows, which is 8 weeks. So, actually yes, it is discrimination if they are saying they will only give you 3 weeks when you are entitled to 8 weeks. Now whether you will be paid is another matter -- that is up to the employer. But your job is protected no matter what. This is precisely why maternity laws exist so that employers can't screw you over like that.

veetveet · January 2014

8 weeks... that is crazy. Makes me very thankful for Canadian maternity/parental benefits.

jmknox · January 2014

Just curious @veetveet - how much leave is standard in Canada?

veetveet · January 2014

jmknox said:
Just curious @veetveet - how much leave is standard in Canada?

In my province of Ontario they offer a full year (you can choose how long you want to be off you don't have to take the full year or you can split with the baby's father) - paid by the government to a maxImum based on your income. Max payment is about $428 weekly (taxes to be deducted) Some companies offer a top up as well. My company just implemented 75 % top up for 15 weeks. I did not have that last time.

Luna C · January 2014

naturaloaklandmama said: Irrespective of whether they want to keep an attorney vs. an assistant, they have to give you the minimum the state allows, which is 8 weeks. So, actually yes, it is discrimination if they are saying they will only give you 3 weeks when you are entitled to 8 weeks. Now whether you will be paid is another matter -- that is up to the employer. But your job is protected no matter what. This is precisely why maternity laws exist so that employers can't screw you over like that. *** From the OP: "my boss came to me and informed me that the leave policy is 3 weeks paid and then the unpaid leave is decided on a case by case basis."

I think the boss is saying they're case-by-case after the legally mandated 8 weeks. The other women got more than 8 weeks, which is what the OP (understandably) wants. They aren't required to give it to her though.

Edited because The Bump hates to do quote formatting correctly.

mysticl · January 2014

Luna C said:

naturaloaklandmama said:

Irrespective of whether they want to keep an attorney vs. an assistant, they have to give you the minimum the state allows, which is 8 weeks. So, actually yes, it is discrimination if they are saying they will only give you 3 weeks when you are entitled to 8 weeks. Now whether you will be paid is another matter -- that is up to the employer. But your job is protected no matter what. This is precisely why maternity laws exist so that employers can't screw you over like that.

***

From the OP: "my boss came to me and informed me that the leave policy is 3 weeks paid and then the unpaid leave is decided on a case by case basis."

I think the boss is saying they're case-by-case after the legally mandated 8 weeks. The other women got more than 8 weeks, which is what the OP (understandably) wants. They aren't required to give it to her though.

Edited because The Bump hates to do quote formatting correctly.

That's not what it sounds like though. It sounds like she gets 3 weeks off paid and then after that any unpaid is on a case by case basis. If it is was over the legally required 8 weeks he would have (should have said) that she gets 3 weeks paid, 5 weeks unpaid, and any additional time is on a case by case basis.

FemShep · January 2014

OP, figure out what you want. I'd go in asking for 3 weeks paid, at least 5 additional weeks unpaid, and then any additional unpaid time you want. Put a proposal down on paper, cite the precedent set with the other pregnant women, summarize the previous conversation with your boss, and state directly what you're asking for. Schedule time with your boss to discuss, and then provide copies to his boss and the senior partner in the firm. Don't get too worked up about it until you ask for something specific and you've been denied. Hopefully,if your ask is reasonable and you cite the precedents, they'll give you what you want. Good luck!

Luna C · January 2014

mysticl said:

That's not what it sounds like though. It sounds like she gets 3 weeks off paid and then after that any unpaid is on a case by case basis. If it is was over the legally required 8 weeks he would have (should have said) that she gets 3 weeks paid, 5 weeks unpaid, and any additional time is on a case by case basis.

Well, if you assume her casually written post on a forum is a word-for-word transcript of the conversation, sure, I guess you could assume that's what the boss is saying. But that would be kind of silly and ignore several basic facts.

Lawyers are not in the habit of telling you they are planning to break the law. So since he actually referenced unpaid leave, and the law requires unpaid leave, I'm working on the assumption that the "case-by-case" refers to how much unpaid leave she'll get. Especially since they are currently missing an HR person who would be more familiar with this and he may simply need to reread the law and their policy to see how it's been handled in the past.

LittleMissSteph · January 2014

veetveet said:

Just curious @veetveet - how much leave is standard in Canada?
In my province of Ontario they offer a full year (you can choose how long you want to be off you don't have to take the full year or you can split with the baby's father) - paid by the government to a maxImum based on your income. Max payment is about $428 weekly (taxes to be deducted) Some companies offer a top up as well. My company just implemented 75 % top up for 15 weeks. I did not have that last time.

I'm also in Ontario. You can take up to one year which is paid by the government (to a point) and then a second unpaid year if you choose, as long as they are continuous. Eight weeks seems so short!

Jodash24 · January 2014

Uk is 9 months paid, with an optional extra 3 months off unpaid, just having a few weeks is crazy !

softservecity · January 2014

I'm alway jealous and envious of you ladies living in Canada or UK. Wish the government would step it up here...

Quabbly · January 2014

Thanks for everyone's input. I'm not sure whether my boss has researched the Mass laws on this-- it's entirely possible that he hasn't and is just bluffing to see how much he can get away with.

I know my rights, which include 8 weeks unpaid leave. Having already been informed by my boss that their policy is 3 weeks of paid leave, I'm expecting 3 weeks paid and 5 weeks unpaid at the least. But since the other two women have been given 3 weeks paid and 9 weeks unpaid, I would like the same-- and I plan to put that in writing. Mass law also allows women to take any accrued paid vacation in addition to (and not in place of) unpaid leave, so I may do that if it comes to it.

AJC&Maggie-- if you're able to find that MCAD website specifically stating that maternity leave must be offered equally amongst employees, I'd be very grateful! That's precisely the thing I'm looking for, but I have yet to find it.

Thanks again, everyone!

veetveet · January 2014

HaleyBaby209 said:

LittleMissSteph said:

veetveet said:

jmknox said:
Just curious @veetveet - how much leave is standard in Canada?
In my province of Ontario they offer a full year (you can choose how long you want to be off you don't have to take the full year or you can split with the baby's father) - paid by the government to a maxImum based on your income. Max payment is about $428 weekly (taxes to be deducted) Some companies offer a top up as well. My company just implemented 75 % top up for 15 weeks. I did not have that last time.

I'm also in Ontario. You can take up to one year which is paid by the government (to a point) and then a second unpaid year if you choose, as long as they are continuous. Eight weeks seems so short!

I just had to comment on this and say holy shit really?! That is the best thing ever. I wish it was like that here.

I'm lucky to be able to be a stay at home mom with a little work here and there with my MIL but other then that I just get to be on baby duty.

This program is only offered to people that work- you have to qualify by working a certain amount of hours (I can't remember how many) and we also contribute to employment insurance - which is basically a mandatory tax. If you're self employed if you have not contributed you do not qualify.

I am very thankful to have the opportunity to be home for a year. It's a bit of a financial strain- but totally worth it!

jmknox · January 2014

Dang... I will be lucky to get my 6 weeks

mysticl · January 2014

Luna C said:

mysticl said:

That's not what it sounds like though. It sounds like she gets 3 weeks off paid and then after that any unpaid is on a case by case basis. If it is was over the legally required 8 weeks he would have (should have said) that she gets 3 weeks paid, 5 weeks unpaid, and any additional time is on a case by case basis.

Well, if you assume her casually written post on a forum is a word-for-word transcript of the conversation, sure, I guess you could assume that's what the boss is saying. But that would be kind of silly and ignore several basic facts.

Lawyers are not in the habit of telling you they are planning to break the law. So since he actually referenced unpaid leave, and the law requires unpaid leave, I'm working on the assumption that the "case-by-case" refers to how much unpaid leave she'll get. Especially since they are currently missing an HR person who would be more familiar with this and he may simply need to reread the law and their policy to see how it's been handled in the past.

What she posted is all we have to go on. Making assumptions about facts that haven't been stated could also be considered kind of silly. Lawyers may not be in the habit of telling you they plan to break the law but they also know how to get around it without getting sued. In addition I don't recall her saying her boss was a lawyer. It's possible she reports to an office manager who looked up the HR policy and never spoke with a lawyer about it. Also, the OP stated that she told her boss that she would not be returning to work after three weeks and did not state that he then clarified that she would get a minimum of 5 weeks unpaid after that. So from there it is a reasonable conclusion that his understanding of the policy is that any and all unpaid leave is on a case by case basis.

sarah_beth2005 · January 2014

I'm a lawyer in a different state, and my firm ( a very large lawfirm) has a different maternity leave policy for attorneys than it does for paralegals, assistants, and other non-attorneys. Your firm could very well be the same way, but you'd have to see the written policy to know for certain. If you aren't able to get a copy of the policy from your boss, ask one of the two women you've spoken with (who recently had babies) if they received a copy from HR and can forward it to you. I would also print out a copy of Massachusetts' required 8 week leave law, and include that in your request for leave (in case your boss isn't familiar with the state requirements). Good luck!

mcgeeva · January 2014

Would love an update on this if she has actually talked to anyone in hr yet? I'm guessing she talked to someone ill informed and jumped the gun without looking up the policy in their employee handbook. An employee handbook with the policy should be available to her especially considering she works at a law firm. I work from a large firm and was able to find this information before reaching out to hr. If it's not posted contact someone who can answer those questions. I agree with the above poster our attorneys have different leave. That's usually the norm.

enjaye316 · January 2014

I am going through something similar. In July, my brand was sold to another company. At the time, there was no HR in place, and to this day, there is no employee handbook. When we all got moved to the new company, I inquired about the maternity policy and got a vague, "We don't know yet, but don't worry, we'll make you happy." A couple of months later, I followed up again, and was told that because we are fewer than 50 employees, FMLA doesn't apply and they don't have to hold my job at all. I fought this for about two weeks, and finally received confirmation that a job will be held for me for 12 weeks.

As far as pay goes: the company we were bought FROM paid 75% of salary for 6-8 weeks. When I talked to the new people about it, I was told that as a smaller company, they might not be able to do 75%, but maybe they could swing 50%. I went in last week to announce my pregnancy, and was told that my leave would be entirely unpaid. Beyond the fact that I feel I was lied to, there was a woman who was pregnant when the company was bought, and SHE was given the full 75%, since she was already in the situation, and "it wouldn't be fair". (She also got 12 weeks, without having to fight for it.) To me, this feels like discrimination. Is this case-by-case thing really legal? We have no employee handbook, and our "HR department" consists of two women who we borrow from another company and are never on-site.

RedInLove · January 2014

Quabbly said:

Hi, this is my first time posting on the boards! I'm due with my first on June 24 and feeling good.

I'm not feeling good about my employer. I work at a small law firm in MA-- less than 50 employees so FMLA doesn't apply, but MA law says companies are required to give employees who've been at the company more than a year (I have) 8 weeks unpaid with job security to return after their leave.

Could this be what he meant by 'case by case?' That some people are covered by the law, but others (those with less than the year) might not be? I'm wondering if he's not fully aware of the policy, or possibly state labor law. I get you work at a law firm, but I'm sure there's different areas of law that lawyers specialize in so he might not be up to speed on this area.

Luna C · January 2014

enjaye316 said:

Beyond the fact that I feel I was lied to, there was a woman who was pregnant when the company was bought, and SHE was given the full 75%, since she was already in the situation, and "it wouldn't be fair". (She also got 12 weeks, without having to fight for it.) To me, this feels like discrimination. Is this case-by-case thing really legal? We have no employee handbook, and our "HR department" consists of two women who we borrow from another company and are never on-site.

People: Two different employees getting different perks/benefits is not automatically discrimination. In fact, it rarely is discrimination.

It may not be fair or nice, but it isn't discrimination unless, say, there is a pattern of white women getting paid leave and minority women get none. Or men get paternity leave paid, and women have to take maternity unpaid.

Esp. when the difference is clearly defined by job level/title it's not discrimination, it's just the perks of being more important to the bottom line.

iqwedding3 · January 2014

I don't see anything in the MA law that requires all women get the same maternity leave. I'm stuck in a similar situation, my company has been handing out leave on a case by case basis since inception.

Pepper6 · January 2014

It sounds like her direct boss was just guessing on the maternity leave policy, so I wouldn't take his word for it quite yet. Also, when he said '3 weeks paid + unpaid on case by case basis' may refer to what other women chose to take off. Some people may be able to afford the additional 9 weeks unpaid, but others may not and might choose to return to work sooner...so I wouldn't automatically jump to the conclusion that it's the company's policy to allow different time off for different employees. I would try to find info on the maternity policy in your employee handbook and wait until your HR person returns to discuss the actual policy with them, not your boss who is clearly just guessing.

Quabbly · January 2014

Update, since a few were wondering:

Employee handbook... haha... good one. Unfortunately, there is nothing of the sort at my firm. Yesterday morning I emailed the three senior partners (so as to have something in writing) to state what I would like for my leave (3 weeks paid, 9 weeks unpaid).

I also let them know I thought it would be more appropriate for me to discuss all these details with the HR staff person, but I wasn't sure who that would be since our bookkeeper/HR person is on disability leave and we have a part time temp. My boss told me he thought it was 'humorous' that I believed they had a dedicated HR specialist.

I've asked for the written policy- both a month ago when I informed my boss of my pregnancy and again yesterday in my email- and I suspect there simply is nothing. In the same conversation that my boss told me he found my HR expectations 'humorous,' he said he couldn't understand my urgency for wanting to know the policy, that it's not easy to get the three senior partners together, and I reminded him it had already been a month.

I suspect it'll be a while before I have any definitive answers on my leave, but I'll update here when that happens. Good luck to others in similar situations!

enjaye316 · January 2014

Good luck, Quabbly. I feel your pain.

Quabbly said:

Employee handbook... haha... good one.

Quabbly · January 2014

Update: I will get the 3 weeks paid, 9 weeks unpaid that I asked for! I'm glad that's resolved... I think one of the other senior partners talked some sense into the one I report mainly to. Good luck to you, enjaye314, and others!

mcgeeva · January 2014

Hey you now have it in writing which is definitely taking the right step! Good luck!

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