By Jack Tuckner, Esq.

Was Your Maternity Leave Denied Under the FMLA? Watch Your Employer’s Lies.

If your company indicates that you’re not eligible for maternity leave because you don’t quality under the Family & Medical Leave Act of 1993 (FMLA), they’re not telling you the truth about your leave rights, a trendy employer deception used increasingly by companies to trick women into resigning their employment.

The following is a true composite scenario based on several recent pregnancy discrimination cases handled by our women’s rights in the workplace law firm.

Carole and her husband were thrilled to learn that she was expecting their first child, and their timing couldn’t have been better, as she’d recently started a great job at a prestigious company and they just moved into a spacious apartment that would accommodate their growing family. Everything felt pretty upbeat and secure.

She waited out the first trimester before telling anyone at work, and during her 14th week Carole met with Celine the director of human resources on the same morning she felt the first awesome kick of the baby growing inside of her. She intended to notify Celine of the wonderful news, schedule her approximate maternity leave, and learn what benefits the company provides to expectant employees.

Boy, Celine the HR rep couldn’t have been more enthusiastically congratulatory, as they exchanged pleasantries and chit chatted about trending boys and girls baby names, and what were Carole’s plans for the baby shower, and will she know her baby’s gender before it’s born?

Everything was going along nicely until Celine asked Carole for the baby’s due date, and after looking it up on her desktop, all Celine could say was, “uh oh.” Really, uh oh? What’s the matter, said a suddenly serious Carole. What do you mean, uh oh?

Still staring hard at her computer screen Celine said, “well, you say your baby’s due on September 15, but if that’s so, you will only have worked here for 11 months at the time your baby is born, and that’s one month shy of the 12 months needed to qualify for maternity leave under the Family & Medical Leave Act.”

Carole started to feel a bit queasy but was sure this nausea had nothing to do with morning sickness; it was pure panic starting its fluttery rise from the pit of her expanding stomach. What does that exactly mean?

“It means,” chirped Celine in that chipper this-may-be-bad-news-but-at-least-it’s-not-happening-to-me sort of way that HR people are trained to use when firing employees, that because you won’t have worked here for 12 months before your baby is born, you are not eligible to take a family or medical leave under the FMLA.”

“It’s not our fault. Google it—you’ll see—the FMLA requires that employees work full-time for an entire year for a company that has at least 50 employees. We have way more than 50, and you’re definitely full time, but unfortunately, you don’t have 12 months under your belt. It sucks, I know, but that’s something for Congress to change, not us, we have to follow the law, I’m sorry. Maybe write to your Senator?”

Shocked into monosyllables, Carole could only manage a faint “what? “ Other options? What could she be saying? “Well, let’s see what other leave time you may have available,” continued Celine, and like a waitress scanning the menu for an acceptable substitute for a much desired entrée the restaurant ran out of right before you ordered, she returned to her PC screen and said, “well, you have 5 days of vacation and 2 days of sick leave. You don’t think you’ll be able to have the baby and come back to work after 7 days, do you,” asked Celine without even a hint of irony,

Rendered speechless for fear of weeping if she opened her mouth, Carole just sat and waited, as if stillness alone might coax her out of this sudden nightmare. She felt dizzy and her legs felt like wet noodles, so she didn’t trust herself to make it to the women’s room where she’d be able to cry openly, and vomit if necessary.

Finally, Celine broke the silence by asking Carole if she had any questions about what happens next. Yes, Carole heard herself say—does this mean I’m fired? No, of course not, blathered the still smiling and emotionally tone-deaf Celine—“we wouldn’t fire you, we love you. No, no, you just don’t have 2 or 3 months of vacation or sick time in the bank to use when your baby’s born, and as we’ve established, you’re just not FMLA eligible. So when your baby is delivered, unless you’re back here after the 7 days of paid time off, you’ll be AWOL, that’s absent without leave.

So, basically,” she rationalized, “you’ll be leaving us, see, we won’t be leaving you, and as soon as you’re ready to come back to work in a few months, you’ll give us a quick ringy dingy, and boom, we’d love, love, love, to have you back, if there’s a position available at that time. But our hands are tied by the law, what can you do?”

What you can do is hold your company accountable for telling you the whole truth, not the partial truth designed to mislead and trick you into walking away from your job. Here’s what so slick about what Celine and other HR Departments are doing to their pregnant employees in these difficult economic times. Celine is telling the truth–at least a partial truth as it pertains to the FMLA—as FMLA does not cover Carole for the reason stated. Carole hadn’t worked there for a year so she was not entitled to 12 weeks of unpaid leave for the birth of her baby.

But Carole was entitled to maternity leave regardless of the FMLA’s applicability. Celine failed to tell Carole that the Civil Rights Act of 1964 (known as Title VII), as expanded by the Pregnancy Discrimination Act of 1978, protect her and require the employer to provide a reasonable period of time for Carole to recover from her baby’s birth, as the laws states that an employer cannot treat a woman differently on the basis of her sex, which Carole’s company did, as this same employer must provide disability leaves of absences for its other employees who become injured or ill, or else the company would regularly be accused of disability discrimination. Get it? It’s a sex and pregnancy thing.

How are they permitted to tell Carole they will not accommodate her need for leave when she has a sex-based post-partum disability (i.e., the aftermath of giving birth)? They are not permitted—it’s illegal–and the PDA explicitly requires that employers “treat women affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes, as other persons not so affected but similar in their ability or inability to work.”

If your employer has at least 15 employees, regardless of how long you’ve worked for the company, you’re entitled to time off to have your baby or your employer is discriminating against you based on your sex (and your temporary disability).

And if your employer has less than 15 employees, it’s likely that your state or city has its own employment discrimination laws that require less employees before there’s pregnancy discrimination coverage. For example, New York State and New York City both have their own “Human Rights Laws” that cover workplace discrimination for pregnant women, and a NY company need only employ 4 people before there is coverage under those laws, so be sure to research the employment discrimination laws in your state and city before you allow your employer to get away with some version of this FMLA trick on you or someone you love.

It’s bad enough that companies are deceiving women into quitting their jobs by using the very law enacted by Congress to protect women from dismissal after the birth of their babies, but then in addition to losing their jobs, these women then become ineligible for unemployment benefits because they were not actually terminated, they’ve “abandoned” their jobs, so don’t blindly accept whatever your employer tells you about your maternity leave rights. Get empowered, know your rights, and most importantly, don’t quit! You’ll lose all your legal leverage if you do.