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layoff of pregnant employee
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layoff of pregnant employee
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I have a previous posting under "PDL and absences" for a bit more info. We need to reduce our workforce. We have done so in other departments and now must do so in our call center. We have 3 EEs who a
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Forums » Topic Forums » Legal Forum » layoff of pregnant employee
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layoff of pregnant employee
posted at 3/17/2011 12:52 PM EDT
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Posts: 94
First: 2/7/2008 Last: 3/21/2011 |
I have a previous posting under "PDL and absences" for a bit more info. We need to reduce our workforce. We have done so in other departments and now must do so in our call center. We have 3 EEs who are still in their 6 month introductory period in the call center who were hired as we were closing an overseas call center. The last hired is actually doing an exceptional job. She had more phone experience than the EE hired before her (who is pregnant) and I would grant that all the absences and partial absences that the pregnant EE has incurred might have had an effect on her picking up procedures. All 3 of these EEs are bilingual. 2 have had issues with attendance (this includes the pregnant EE) but one who is not pregnant has been given warnings and improved. We addressed this with the pregnant EE at which point we were informed that she just found out she was pregnant which accounted for her absences prior to that and now many subsequent absences. Although we have received information that she is pregnant from an NP, we have not received certification that she is disabled because of it. She has attributed her absences and numerous incidents of tardiness to morning sickness, but she no longer has healthcare and is only going to a Planned Parenthood clinic so has not produced documentation stating a disability. We are counting her time off towards her unpaid Pregnancy Disability Leave.
We have been reducing hours in the department and rotating it among agents but now must actually lay someone off. The manager would like to lay off the pregnant EE because her performance is not as good as others in the department and we never know when she is going to call in sick or come in hours late. Are we setting ourselves up for a discrimination suit? If I'm correct, I don't believe she has any more rights than someone who is not pregnant but just because we've laid off in other departments won't necessarily protect us. Our handbook does state "In determining which employees will be subject to layoff, the Company will take into account, among other things, operation and requirements, the skill, productivity, ability and past performance of those involved and also, where feasible, the employee's length of service." Any advice? |
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layoff of pregnant employee
posted at 3/17/2011 3:33 PM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
You cannot prevent her from filing a discrimination suit. You can only do your best to make sure that she doesn't win it and that means lots of documentation that clearly shows she's not as good as other employees. I'm not sure I'd use the absences due to morning sickness as one of the criteria.
My advice would be to proceed but only with the blessing of your attorney. |
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layoff of pregnant employee
posted at 3/18/2011 4:44 AM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
Regardless of what you do, if you only layoff one person and the one person is pregnant you are guilty until proven innocent.
Just think about how this will sound in front of a judge. I am sure she is not the only tardy/late/sick employee. Do you have detailed records on everyone else or just her??? Just sayin'....... Did you ever give her any formal feedback? Do any writeups and if yes, only her?? Just sayin...... And yes she does have a few more rights than a non pregnant employee. That is why the law was written. |
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layoff of pregnant employee
posted at 3/21/2011 12:27 PM EDT
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Posts: 94
First: 2/7/2008 Last: 3/21/2011 |
Thank you all for your input. We have had several layoffs but this is the only one in the department this year. I have told the manager that he will have to start documenting performance violations and pull reports to show that she is not doing as well as others. I believe he has some metrics set up and can see what the call volume is and how many calls the agents take, so if it is the case that she is not doing as well as the others, we will have support. By the way, we do track the absences and tardiness closely for all. However, the manager has let a lot of it slide especially when we were having agents leave early... |
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layoff of pregnant employee
posted at 3/21/2011 1:20 PM EDT
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Posts: 94
First: 2/7/2008 Last: 3/21/2011 |
We have not spoken with our lawyer yet. Unfortunately, after reading through all these posts, we don't think we will have a case. We have not documented anyhing regarding this employee so far because she is still in her introductory period and we are coaching as we go. Now that we need to reduce staff, she has come up as the one who is doing the worst in the department, but it wouldn't be at a critical stage were it not for the fact that we have to lay off someone. We would continue to work with her to help her improve and if she didn't, we would consider writing her up.
At this point, we are shifting our interest to the one person who is in final written warning status for attendance. He has improved (and hasn't had the pregnancy to excuse his absences) but we have to let someone go. Eventually if things don't pick up, we may have to let someone else go unless it is time for the pregnant EE to go on PDL full-time. Whether her job is available for her to come back to is another question but we'll cross that bridge when we get to it... |
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layoff of pregnant employee
posted at 3/22/2011 6:10 AM EDT
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Posts: 544
First: 9/27/2004 Last: 9/13/2011 |
HRpro, you make an excellent point, a lot of times when an organization has high turnover or a seasonal need to reduce the workforce, they allow that to become their performance management system because it is easier to put off that difficult conversation and wait for the next cycle to take care of it. |
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layoff of pregnant employee
posted at 3/22/2011 7:39 AM EDT
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Posts: 45
First: 1/13/2011 Last: 4/14/2011 |
deltac I am convinced that this is the situation with ptvhr's organization. I am far from comfortable, based upon what has been explained so far, and see this organization prepping itself for a major set back as a result of this. |
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