Losing a job is already one of life’s most difficult events, but losing it while on parental leave creates an added level of stress for new and expecting parents during what is meant to be a joyous transition.
“Firing someone while they are on parental leave is both risky for business and morally loathsome,” said Amy Beacom, the founder and CEO of the Center for Parental Leave Leadership. “A simple gut check lets most anyone know it’s just not right. Any arguments to rationalize it are just that — rationalizations.”
Beacom said laying off employees on parental leave puts a damper on morale and creates lasting brand damage, citing cuts at Twitter as one recent example.
“The time frame after the birth of a baby is one of the most vulnerable times of an employee’s life,” said Daphne Delvaux, a California-based workplace rights attorney. “They also need, like truly need, money and health care. Being postpartum without money and health care is actually quite dangerous.”
Beyond that, laying off employees on parental leave is “emotional robbery of a beautiful bonding experience,” Delvaux added.
“The employee now has to spend their time job searching and begging family for money, instead of bonding and healing. I had a client who went to a job interview four days postpartum, still bleeding from birth,” she said.
And yet so many employers are continuing to lay off people on parental leave, as the latest rounds of mass layoffs have shown this month.
“Right now there’s certainly a really big wave,” Delvaux said. “All day I have emails coming in from mainly women who were laid off on parental leave.”
But there are ways to fight back. If you are a new or expecting parent and you were informed a layoff is happening or suspect one is imminent, here’s what parental leave experts want you to know.
It matters whether you were replaced or your job was eliminated.
Advocating for yourself begins with understanding the existing protections in support of employees. People commonly make the mistake of believing it is illegal to lay someone off while on parental leave, because there are federal laws that ban discrimination on the basis of pregnancy, childbirth or related medical conditions.
“It’s unlawful to dismiss people because they are on leave, but it is not unlawful to dismiss people because their functions are not needed or because ‘there are too many jobs and we have to make budget cuts,’” Delvaux said. “It is only illegal to intentionally select them for a layoff because they are on parental leave.”
The Family and Medical Leave Act entitles eligible employees to take unpaid, job-protected leave following the birth of a child. Note that this only protects their specific role, not their general employment at the company.
“You can be laid off while on parental leave, even if you qualify for Family and Medical Leave,” said Florida-based employment attorney Donna Ballman. “But your employer can’t choose you for layoff because of your pregnancy or FMLA leave.”
If you take FMLA, your employer has an obligation to make sure you return with the same position or an “equivalent” role to the one you held prior to going on leave –– as long as the job still exists. That’s one key question to ask yourself when determining if you got unfairly singled out, Delvaux said: Did your job get eliminated or did you get replaced?
If your role was eliminated, you likely have little legal recourse. But if you were replaced, there are ways to fight back.
Being replaced does not mean your team spreads out your duties after you lose your job; it means that your exact job is performed by someone else. It could be that the person who is intended to be a temporary leave replacement takes over your job while you get pushed out, Delvaux said, or maybe you see someone with your old job title on LinkedIn a week after you got laid off.
Unfortunately, it can be hard to prove you were terminated for taking leave.
To determine if you were specifically targeted because of your leave, Ballman recommended asking yourself: “Did your boss make comments about your pregnancy or family responsibilities? Were you pressured to return early? Does your job description require a B.A. that you have, but the person retained does not?” These could all be indications of discrimination or FMLA violations, she said.
Delvaux said the only way to determine if the layoff was illegal is to compare how your employer treated you with how it treated your colleagues who are not on leave.
“As an attorney, the questions I ask here are: How many people were laid off?How many people in your department were laid off? How many people who were laid off were on leave? Who is performing your job duties right now? Are they also laid off? … Do any of your peers remain employed? Are you a better performer than them? Have you been there longer than them?” she said.
If the answers to these questions lead you to believe that you have been targeted, you can take your evidence to a lawyer. Lawyer fees may seem daunting, but the first session is often a free consultation, and you can also find a lawyer who will take your case on a contingency basis, meaning they are paid a portion of the awarded damages if you win against your employer in court.
However, Delvaux cautioned that the burden is on employees to prove that they were targeted only because they went on parental leave, and that’s hard to do.
“The reason why it’s hard is because unlike individual terminations, layoffs are usually decided by a group. They’re usually vetted by lawyers, usually approved by the board,” she said. “As an employee, you had to prove that all of those people, that entire organization, had a specific bias against you. The employer is able to say, ‘Well, we laid off people who were not on leave.’”
Due to this high burden of proof, Delvaux said these cases are stronger if there was already discriminatory behavior happening before the employee went on parental leave.
Winning a lawsuit is tough, but you can still leverage the threat of legal action.
Beyond actually winning a lawsuit, it’s possible to use what you know to get a better severance payout.
You can hire a lawyer to do this for you, but there will be fees. “I do charge a flat fee for reviewing the agreement with them and discussing in detail what leverage they have and what changes I suggest,” Ballman said of her clients.
The advantage of hiring a lawyer is that they can help maximize your severance package.
“When I negotiate a severance agreement on behalf of an employee on parental leave, I do three things,” Delvaux said. “First, I secure the benefits so the employee does not fall without income. Second, I demand more money. If they want them to release their rights, the price is high. Third, I insist on a mutual NDA [nondisclosure agreement] or a neutral evaluation clause. This will protect the reputation of my client. It essentially means that, if the company gets called for a reference, the employer is not allowed to disparage my client.”
You can also represent yourself and negotiate your own severance. But you should know that saying “I just had a baby” is unlikely to move the company to pay you more.
“What employers are scared of is being sued and being open to liability,” Delvaux said. “And they get sued when someone starts to really investigate what their rights are and what the evidence is in support of a violation.”
A severance agreement will typically have confidentiality and nondisparagement clauses. The company will want you to sign it, and you should make it clear that they will have to pay you a lot more for you to go away quietly.
Talk like a lawyer and say that you believe your layoff was discriminatory, mentioning that you plan to post publicly on social media about being fired while on parental leave, Delvaux suggested. You might say something like “this is not enough severance because I was selected intentionally because I was on leave, so I believe this to be unlawful discrimination,” she advised.
Obviously, that’s more aggressive than asking nicely for more severance money, but it will likely get your request escalated more quickly.
“Using strategically legal language, they cannot ignore that,” Delvaux said. “They have to do a little bit of an investigation, and that in and of itself is a headache. It’s time-consuming. … So often what will happen is: ‘OK, just increase the severance. Double the severance.’ That’s what will happen on the other side.”
Before going on leave, you can save important files and state your plans to return in writing.
Back up documents from your work computer onto your personal computer, because if you are laid off, you could immediately lose access. (But don’t take any information that’s confidential or proprietary.) If you have limited time, career experts recommend at least saving performance reviews, client testimonials and anything that could help your job search in the future.
Try to get ahead of potential disruptions in benefits if you can. Familiarize yourself with your state’s unemployment insurance and any disability benefits you might qualify for after losing a job.
“Are they cutting off your insurance that day, at the end of the month, or later? If you have an upcoming doctor’s appointment, delivery date or surgery, you need to know ahead of time whether or not you’ll be listed as covered,” Ballman said.
Typically, company health insurance coverage expires on the final day of the month in which you last worked, but you may be able to look this up in your specific benefits package.
And before you go on leave, make clear to your manager that you plan to return. Delvaux recommended expressing in writing that your job is important to you and that you are excited to return.
“The managers may be assuming that because you are already gone, it’s just easier for you to be let go,” Delvaux said. “They may even assume that you want to be let go so you could stay home with your baby. That would be unlawful discrimination, so you want to be able to prove that you never intended to be a stay-at-home parent.”
Even if you think you have a great working relationship with your manager, lawyers strongly urge employees to document conversations and online correspondence relating to your leave.
“If you end up not needing that, that’s great,” Delvaux said. “It’s better safe than sorry. Not documenting only protects the company.”