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October 2015 Moms
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Can my employer do this legally?

cgummiecgummie member
in October 2015 Moms
I'm not sure where to start looking for answers on this predicament. My husband thinks it's illegal, I'm fairly certain that it's just unethical.

My maternity leave was supposed to start on September 19th. This is a small business (less than 50 employees) so FMLA is out the window. They unofficially offered me 10 weeks (one of the managers said in passing "so you'll be back by Christmas, right?") and I would have to cover my shifts with the hope of whoever is covering them to give them back or I would be employed as a fill-in only. I did not plan on going back for many reasons.
I was hospitalized on August 13th and obviously wouldn't be able to work. I notified the manager on duty. My son was born August 15th and I technically could go back to work next weekend. This is where my problem arises. They've already covered my shifts and I've been told that I no longer work for them. I would like to work for a few weeks while he's in the NICU because we know the bills are going to be higher than we had originally thought.

Can they essentially "fire" me while I was in the hospital? Or is this basically them starting my maternity leave early?
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Re: Can my employer do this legally?

  • stephneejunestephneejune member
    I do not believe they can terminate your job like that, but you need to check your local laws. Also, read up on equal opportunity employer if that applies and the companies employee rights. You may need to go straight to the top and inform them what happened and they may have a stern talk with your boss. So sorry for your troubles. What a mess!
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  • cgummiecgummie member
    I know that pregnant women who develop GD or pre-e (which is the case for me) are covered under the Americans with Disabilities Act, but I can't find any specific info on being fired. The state labor law website sends me back to the ADA and EEOC federal pages.

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  • mommav83mommav83 member
    Call an employment lawyer and ask or check your human rights act, each state is different but in IL where I'm from childbirth due to pregnancy and any complications from that are protected.
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  • ameares721ameares721 member
    I'm not sure what state you live in, but in NC we have "disability rights NC" and you can call them to tell them your situation. If they think something illegal has occurred, the open a case for you and research it. Maybe your state has a similar agency?
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  • BlueTopazBrideBlueTopazBride member
    Even when you don't have the protections of FMLA, generally you should have the same protections as other employees who get sick or are hospitalized. For example your employer would not terminate someone who got gall stones and would be hospitalized/recovering for two weeks, then they cannot terminate you for being out of the office for two weeks to have your child. That would be discrimination.

    State and local laws vary with what additional protections they provide to pregnant and new moms. An employment lawyer will be able tell you if you have enough for a case and generally the first consultation will be free. They should be able to give you an idea of what you can expect from the process of you pursue legal action and what your best case outcome will look like.

    Good luck with everything.
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  • bucher1sbucher1s member
    What state are you in? No I don't think they can fire you.
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  • jts2015jts2015 member
    I was terminated from my job because I was pregnant and I had filed for unemployment which of course he fought but I won in the end. Since he fired you I would think you are entitled to it
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  • nianicho777nianicho777 member
    cgummie said:

    I'm not sure where to start looking for answers on this predicament. My husband thinks it's illegal, I'm fairly certain that it's just unethical.

    My maternity leave was supposed to start on September 19th. This is a small business (less than 50 employees) so FMLA is out the window. They unofficially offered me 10 weeks (one of the managers said in passing "so you'll be back by Christmas, right?") and I would have to cover my shifts with the hope of whoever is covering them to give them back or I would be employed as a fill-in only. I did not plan on going back for many reasons.
    I was hospitalized on August 13th and obviously wouldn't be able to work. I notified the manager on duty. My son was born August 15th and I technically could go back to work next weekend. This is where my problem arises. They've already covered my shifts and I've been told that I no longer work for them. I would like to work for a few weeks while he's in the NICU because we know the bills are going to be higher than we had originally thought.

    Can they essentially "fire" me while I was in the hospital? Or is this basically them starting my maternity leave early?
    No, they can not fire you for being out of work due to a pregnancy related disability, which sounds like Your situation. This is illegal under the pregnancy discrimination act.
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  • mommav83mommav83 member
    @jts2015 you can take them to court on top of it for lost benefits. I'm prepping to do the same with mine bc unfortunately I've been told that my position will not be held for me and I'm not quitting. It's so stupid. Companies shouldn't be allowed to do that.
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  • rue:Drue:D member
    This sounds to me like they fired you because you left work before you were planning to (Which could be legal if you're in a right-to-work state). However the fact that you left work was due to pregnancy-related issues, which you cannot be fired for, which screams discrimination and is illegal. They aren't required to hold your position for you (that's the one perk of having FMLA even if you don't get any paid time), but they can't fire you for pregnancy-related issues. I'd find an attorney specializing in employment law and see what s/he says. You likely at least have a case to receive lost benefits and unemployment.
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  • christina4436christina4436 member
    I believe you would have had to report the sickness or leave from the day or within 2 days of when you were out in order for your employer to have to hold your position temporarily due to illness/disability. Think that is the case is any event like that or emergency (unless you told them you would use your vaca time or something). So I believe at this point they don't havee to give you any hours etc. but it is pretty crappy if they said they would after maternity leave and now you're in this predicament. Have you tried talking to them and just picking up shifts until after maternity leave when they should put you back on schedule? Unfortunately it's obv no guarantee if you don't have FMLA but worth a shot. Again this is just my understanding.
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  • jenspeakejenspeake member
    Regulations vary by state for small employers. Need to know the state.
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  • Rikki_5Rikki_5 member
    edited August 2015
    I would definitely consult with an attorney because frankly--since you are not working for a FMLA company they can technically fire you.  I'd file for unemployment as well.   I'm pretty sure you would get unemployment benefits, which could possibly be better in the long run because you can stay home with your baby longer whom I sure will need you being born so early.  Good luck!!
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  • intheversaintheversa member
    I'm pretty sure she's in Missouri because she referenced the 4 days hospital stay option for Missouri in the Flame Free Birth Thread questions, and being a St. Louis girl myself, this stood out to me. Looking up the rules. I thought when pregnant for small companies they don't have to offer you your job back, but a job. But I'm trying to find that. 
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  • intheversaintheversa member
    If you are in Missouri like I think you are https://www.legalmomentum.org/content/missouri-laws-relating-pregnancy

    It states: It is an unlawful employment practice to discriminate based on pregnancy. Where the termination of a temporarily disabled employee is caused by a policy with insufficient or no leave is available, this termination is discriminatory if it has a disparate impact on one sex.


    Pregnancy is also classified as a temporary disability under Missouri law. In Missouri, if you are terminated as a temporarily disabled employee without being provided a sufficient leave of absence, then this termination violates the MHRA because it has a disparate impact on women. Only if the business demonstrates that its actions were justified as a business necessity may you legally be discharged for failing to perform your duties.

    But agreeing with the ladies here, you may need to consult an attorney. 
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  • cgummiecgummie member
    edited August 2015
    Thanks girls. I am in Missouri @intheversa

    I'm now waiting for the owner to come back from vacation on Friday (his second one this month, so I call BS that the company isn't doing well enough to offer any benefits... but I digress.) to see what he has to say about this. According to the two managers, I no longer have a position. Period. End of story. All because I "left them hanging" with no one to cover my shift the day after I was hospitalized. So looks like this is going to be a fight.

    So how do I go about filing for unemployment? I've never been without a job before.

    Edited to add: The ADA covers small businesses of over 15 people, so they can't weasel out of it on the number of employees. The ADA specifically covers pregnancy complications as a disability.  
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  • intheversaintheversa member
    I don't know the exact details of it, but I know my friend went through this site to get set up. https://labor.mo.gov/DES/Claims

    There's a video on the site that walks you through how to file a claim. 

    Also fight like hell. Based on the ADA post I'm assuming your company is over 15 people?
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  • cgummiecgummie member
    @intheversa Yes, its over 15 but under 50. Thanks again for your help!
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  • intheversaintheversa member
    Np probem!
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  • BlueTopazBrideBlueTopazBride member
    You go get 'em girl. Put up a good fight!!
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  • leighann1leighann1 member
    cgummie said:
    Thanks girls. I am in Missouri @intheversa

    I'm now waiting for the owner to come back from vacation on Friday (his second one this month, so I call BS that the company isn't doing well enough to offer any benefits... but I digress.) to see what he has to say about this. According to the two managers, I no longer have a position. Period. End of story. All because I "left them hanging" with no one to cover my shift the day after I was hospitalized. So looks like this is going to be a fight.

    So how do I go about filing for unemployment? I've never been without a job before.

    Edited to add: The ADA covers small businesses of over 15 people, so they can't weasel out of it on the number of employees. The ADA specifically covers pregnancy complications as a disability.  
    That is ludicrous. That's like saying you're fired because you got in a terrible car accident last night and couldn't call around to get your shift covered because you were being operated on in the middle of the night. That is stupid. While I have no idea of the legal issues, I'd say you have a damn good basis for a fight, and I hope karma treats those two managers appropriately. 
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  • margies2010margies2010 member
    Please insert the appropriate amount of sarcasm in following statement...

    "How DARE you have a complicated pregnancy and force yourself to have your baby early, regardless of how unsafe it was for the baby, just to screw us over!"

    They sound like a bunch of assholes. Fight the good fight, momma!
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  • Wigglesx2Wigglesx2 member
    I can't offer help but I'm rooting for you. What an asshole company!! I'm sorry you have to go through this.
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