posted
I wish Dag still played around here but in any case I was probably going to have to do more than enough research on my own.
Put simply, my wife's employer is stating that while their policy indicates that employees can take 2-3 months unpaid leave after having a baby, in her circumstance they are not going to grant that. Rather, they want her to use up all her accrued paid time off, (She'll have saved up about a week by then) and maybe one week beyond that of unpaid leave and then come back.
I'm livid, but somewhat cautious at the same time. While I'd like to know what legal recourse I have in the state of Utah, I'm also mindful of the fact that even if I successfully tell them to stop bullying us and give my wife as much time as she needs to recover after having a baby, they could instead just fire her when she comes back for an "unrelated reason" and there wouldn't be much I could do about it.
I'm not sure what to do, I'm just in the option weighing phase. Tiffany is already considering finding employment elsewhere, but it might be hard for her to find a job if she is going to give birth in about 2-3 months, in addition, she won't have accrued any sort of paid leave in a new position.
Currently I'm looking into legal options, I think that's a pretty good place to start.
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posted
I'm no expert, but I do know that family leave laws depend upon the size of the company and the length of employment. Can you give us those details?
On a more personal note: TWO WEEKS OF MATERNITY LEAVE? As a mother, I am hereby outraged.
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posted
Ummm. I'm not a lawyer, and I obviously don't know your wife's company policies. However, my understanding is that there is no law mandating a company in Utah to provide any type of paid maternity leave at all. You can use FMLA, if you and your company meet certain requirements. A basic outline of these requirements are found here. If your wife is unionized and part of the union agreement is for a specific period of maternity leave, then she can file a grievance with her union if she is being denied that time off. The should be able to get her the time they negotiated for in the last union contract.
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posted
Are you sure its state based? Try checking to see if there are federal laws like so:
quote:Length of Regular Maternity Leave in Labour Legislation
The employment standards legislation of all Canadian jurisdictions provides for a minimum period of unpaid maternity leave for eligible pregnant employees. This period is 18 weeks in Alberta, British Columbia, Quebec and Saskatchewan and 17 weeks in all other jurisdictions.
This leave can usually be supplemented by adding a period of parental leave. In some jurisdictions, it is also possible to obtain an extended maternity leave, as will be discussed hereafter.
Two weeks is pretty ridiculous and the fact that they're forcing you(her) to use paid leave first definitely seems abusive.
Do you(her) get the equivalent of EI while on unpaid leave? (Also, there should be some laws to protect her when she gets back. At least they probably can't fire her for a month or two at the minimum without it looking super-obvious to a tribunal (or whatever the equivalent is))
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posted
This sounds like you also have overriding federal standards
quote:Many states have protections for pregnant women that go beyond the federal law. For example, they may mandate that pregnant women be allowed to get some paid time off through employee payroll taxes. Federal law allows for 12 weeks of unpaid leave.
It also says she's probably entitled to health benefits while on maternity leave so that might be another thing to consider.
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posted
I believe that companies can require their employees to use vacation and/or sick time. I'm questioning their ability to force her to come back after 2 weeks.
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quote:Employers are allowed to force an employee taking leave to use up sick time before paid or unpaid leave applies. However, employers cannot force an employee to use earned vacation time during an FMLA leave. You may want to use your vacation days to pay for some of your leave, especially if it's unpaid, but you're not required to do so.
An employee that is covered under the FMLA is entitle to keep her group health insurance through her employer, as long as the insurance was in place prior to the leave.
quote:Originally posted by Christine: I believe that companies can require their employees to use vacation and/or sick time. I'm questioning their ability to force her to come back after 2 weeks.
They can't force her to come back at all. The question is how long she can stay away and force them to take her back.
Posts: 1794 | Registered: Jul 2002
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posted
I don't know about variance by state, but I do know there is variance by the size of the company with regard to labor laws, including maternity leave. When I was pregnant with Mini, I worked for a company that was so small it was exempt from FMLA. The owner had me racking up "comp time" (saving my overtime hours to be applied towards my maternity leave rather than paying me time and a half when earned). I ended up coming back to work after 2 weeks because I couldn't afford to stay home. Many years later, another employee filed an EEOC claim for an unrelated charge, and in their investigation of the company discovered my comp time situation. She ended up having to pay me new overtime for all of those hours, even though she had already paid me at straight time while I was home with the baby, in effect giving me double and a half for that time.
Posts: 4515 | Registered: Jul 2004
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posted
I was over HR for CompUSA here in Las Vegas a few years ago before I started here at the payroll company I am currently with. Here is some information for you:
1) Has worked there for at least a year 2) Worked 1250 hours in the last year 3) Her company employs at least 50 people within a 75 mile radius.
There is a common misconception that FMLA is available to everyone regardless of employer. That isn't the case. Your employer could have 10,000 employees, however if your local office has only 20 people in it, it is at the employers discretion to allow you to go on FMLA.
Something you can look at though is the company's employee handbook. Essentially this is considered a legally binding document, and if something is written there, the employer must comply to it. If the handbook says 12 weeks are offered for maternity leave, they HAVE to give it to her.
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quote:Originally posted by Christine: I'm no expert, but I do know that family leave laws depend upon the size of the company and the length of employment. Can you give us those details?
On a more personal note: TWO WEEKS OF MATERNITY LEAVE? As a mother, I am hereby outraged.
Employees should be allowed to take all the FMLA unpaid leave they can when having a baby. But paid maternity leave? Two weeks seems perfectly reasonable to me. Why should companies pay people to be off beyond what their company gives for vacation and sick leave?
Posts: 3134 | Registered: Mar 2005
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posted
No. But no company should be forced to offer it. Its nice the federal government does. It also makes me question how important those positions are if they can afford to let the employees take 4 weeks paid leave.
The county I work in offers 2 weeks for new mothers and they can use any accrued leave before FMLA kicks in. Sounds very reasonable considering we get 10 days sick leave and 4 personal days each year, that can be carried over with no limit.
Would it have been nice to have two weeks paternal to share with my wife? Absolutely. But as a teacher not only would they have to pay the salary, but for a sub that entire time as well.
I used to work in a small office. Only two employees besides the owner of the insurance agency who was never there. I can't imagine what it would have been like if my co-worker had been out on paid maternity leave for a month. Either double my work load, or force the owner to pay a second temp salary.
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quote:Originally posted by Stephan: But no company should be forced to offer it. Its nice the federal government does.
That is in fact what happens in our case, the salary replacement is handled through the EI system, for all businesses, small or large. The business is just responsible for keeping the employee's job available when she and/or he returns and adhering to the non-discrimination guidelines regarding the pregnancy (and leave).
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quote:Originally posted by Stephan: But no company should be forced to offer it. Its nice the federal government does.
That is in fact what happens in our case, the salary replacement is handled through the EI system, for all businesses, small or large. The business is just responsible for keeping the employee's job available when she and/or he returns and adhering to the non-discrimination guidelines regarding the pregnancy (and leave).
What is your income tax rate?
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quote:Originally posted by Stephan: Its nice the federal government does.
What federal government does what?
Because if you're talking about the US federal government, they don't pay any maternity/paternity leave.
Posts: 409 | Registered: Apr 2002
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quote:Originally posted by Christine: I'm no expert, but I do know that family leave laws depend upon the size of the company and the length of employment. Can you give us those details?
On a more personal note: TWO WEEKS OF MATERNITY LEAVE? As a mother, I am hereby outraged.
Employees should be allowed to take all the FMLA unpaid leave they can when having a baby. But paid maternity leave? Two weeks seems perfectly reasonable to me. Why should companies pay people to be off beyond what their company gives for vacation and sick leave?
For the record, I was outraged at the company threatening to fire her if she took any longer than 2 weeks off with her new baby. My outrage had nothing to do with whether or not the leave was paid, although I will get onto that soap box in a minute. In this case, it is simply the idea, whether or not it is enforced by a federal law, that a woman should return to work so soon after having a new baby. Two weeks is not enough time for her body to heal, let alone for her to be emotionally ready. It is a bad decision for her and for the company because she will be emotionally drained. She will probably not be getting a lot of sleep at that point in a baby's life either. Her productivity will be very low. Not to mention that returning to work after 2 weeks puts a serious strain on a woman's ability to breastfeed, something that has been shown to save a company money (because mom doesn't have to take off as much time with sick baby). Both logically or emotionally, it is an a**hole thing to do.
As far as paying women for maternity leave: I think it's a great idea, though I think that in countries where women get real paid maternity leave (6 months to a year), the government steps in. I'm not sure, though. I only know that for all our talk of "family values" in this country we have absolutely no care for family. This manifests itself in a number of ways, including the feeble rules regarding largely unpaid maternity leave we have in this country. Most women have to return to work after 6 weeks and IMO, that's not good enough.
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posted
Thanks so much for the links so far guys, I felt somewhat bad posting our predicament and then heading off to work all day. I'm going through it all, as I prepare my lesson material for this evening.
Mucus: I'm not sure if she gets any sort of protection during those two weeks. They pretty much called her in and said, "Our policy is to offer you up to 3 months of unpaid time off, but if you take more than two weeks and don't use PTO, your position here is in serious jeopardy."
posted
that's a little ambiguous sounding, BB. Phrased that way, it sounds like she can take 3 months, but has no option but to use the accrued paid time off during the beginning of it. (Which is policy at my workplace. I question the accuracy of the link above that states otherwise.)
Since she only has a week of paid time off accrued, it sounds like she might not have worked there long enough to qualify for FMLA even if the company meets the requirements otherwise. If she doesn't qualify for FMLA there's probably nothing else that you can do legally.
ETA: not that you should take my word for it, by any means. I'm just this guy, you know?
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posted
scifibum: She has worked for them for over two years now. The way PTO works is that you can't carry any over from a previous year, you use it or lose it. She only gains PTO at the rate of two days a month. In recent months they have closed some offices, but I believe they still have several around the country with about 75 employees to each office.
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quote:Originally posted by BlackBlade: scifibum: She has worked for them for over two years now. The way PTO works is that you can't carry any over from a previous year, you use it or lose it. She only gains PTO at the rate of two days a month. In recent months they have closed some offices, but I believe they still have several around the country with about 75 employees to each office.
If she has worked there for two years and worked 1250 hours in the past year, and the company has 75 employees in that office alone (not including any additional workers they have nearby), then under the FMLA she is entitled to 6 weeks of unpaid leave if she files the appropriate paperwork. FMLA requires that the company accepts her back at the end of her unpaid leave in either the same position, or a position with the same salary. They cannot fire her for using it. However, if Utah is an At Will employment state, then after she gets back, they could potentially fire her for any reason, or no reason, and it would likely be quite hard to prove that it was because she took FMLA. It would be best if she started documenting issues right now. I might even ask for their statement in writing, so that if she does take FMLA and get fired soon after returning to work she has evidence that she was threatened with a loss of position prior to leaving work. I might also get copies of any reviews she has had documenting that she has been a good employee, and make sure that they are dated, in case such a situation were to occur and you decided to take legal action.
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quote:Originally posted by BlackBlade: I'm not sure if she gets any sort of protection during those two weeks. They pretty much called her in and said, "Our policy is to offer you up to 3 months of unpaid time off, but if you take more than two weeks and don't use PTO, your position here is in serious jeopardy."
What total jerks. Based on what you've said, they have violated FMLA by saying that. I would write them a letter explaining that they were violating the law by making this threat, that you will not report them or sue as long as they give your wife the 3 months paid time off, don't require that she use her paid leave and you are satisfied that they are in no way penalizing her for doing that which she is legally entitled to do. If you could find a lawyer friend to put it on legal stationary it would be even better. Get them walking on eggshells around her.
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posted
Maybe it's just me, but I would not want to give the impression that I think would be given by the husband talking to the wife's employer. If she needs an advocate, I'd suggest finding one within the company or a lawyer or someone with a government agency. Or help her craft the communication but make sure she delivers it.
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quote:Originally posted by scifibum: Maybe it's just me, but I would not want to give the impression that I think would be given by the husband talking to the wife's employer.
Agree with you 1000% percent.
Posts: 32919 | Registered: Mar 2003
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quote:Originally posted by andi330: If she has worked there for two years and worked 1250 hours in the past year, and the company has 75 employees in that office alone (not including any additional workers they have nearby), then under the FMLA she is entitled to 6 weeks of unpaid leave if she files the appropriate paperwork.
Where is 6 weeks from? My understanding is that FMLA gives you 12 weeks (not 6) of "protected" leave.
quote:Originally posted by scifibum: Maybe it's just me, but I would not want to give the impression that I think would be given by the husband talking to the wife's employer. If she needs an advocate, I'd suggest finding one within the company or a lawyer or someone with a government agency. Or help her craft the communication but make sure she delivers it.
I agree.
If the company has an EEO office/officer I'd have her talk to them. This helps create a paper trail and later action against her by the management can be challenged as retaliation for her reporting them.
Posts: 409 | Registered: Apr 2002
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posted
scifibum: I used to work for the company she now works for. I certainly wouldn't be the face of this effort. We have some friends who are attorneys, I'll be talking to him as well. I'll ask Tiffany is she'd be willing to talk to their EEO officer if they've got one.
I'm just terrified as it would be extremely hard to prove that they fired her for getting pregnant in court, when it's so easy for them to simply claim her work performance dropped when she came back to work, or that they simply could not afford to keep her on staff.
Posts: 14316 | Registered: Jul 2005
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quote:Originally posted by BlackBlade: I'm just terrified as it would be extremely hard to prove that they fired her for getting pregnant in court, when it's so easy for them to simply claim her work performance dropped when she came back to work, or that they simply could not afford to keep her on staff.
I can completely understand this fear, but getting documentation of the situation now makes those claims harder for them to defend and easier for you to argue/prove later.
2 weeks is just ridiculous. Daycare centers won't take anyone a baby younger than 6 weeks and 6 weeks is the typical recovery period for a natural birth (8 weeks for c-section usually IIRL). Trying to make her come back in less than 6 is just downright wrong.
Posts: 409 | Registered: Apr 2002
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quote:Originally posted by BlackBlade: scifibum: I used to work for the company she now works for. I certainly wouldn't be the face of this effort. We have some friends who are attorneys, I'll be talking to him as well. I'll ask Tiffany is she'd be willing to talk to their EEO officer if they've got one.
I'm just terrified as it would be extremely hard to prove that they fired her for getting pregnant in court, when it's so easy for them to simply claim her work performance dropped when she came back to work, or that they simply could not afford to keep her on staff.
The trick is to make them aware that she is aware they are not allowed to fire her for taking leave if she's entitled to it under FMLA, but keep it from getting adversarial enough that they want to fire her anyway. If they are resigned to having to hire her back, but don't, like, hate her, they won't be looking for reasons to fire her.
But they do need to be aware that they will be in for a headache if they try to fire her out of pettiness.
My gut feeling is that your wife should talk, non-adversarially, about the legal requirements and entitlements with someone in HR. Or, if there is no HR, with whoever takes care of those functions. And that it'll work out fine.
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