Law Offices of Mitchell Schley, LLC

New York and New Jersey Labor and Employment Lawyer

197 Route 18 South
South Tower – Suite 3000
East Brunswick, NJ 08816
Phone: (732) 325-0318
Fax: (732) 325-0317

245 Park Avenue, 39th Floor,
New York, NY 10167
Phone: (212) 672-1848
Fax: (212) 372-8798

mschley@schleylaw.com

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About Mitchell Schley, ESQ

Pregnancy Discrimination

Today’s topic concerns pregnancy discrimination which is illegal is every state. Pregnancy discrimination occurs when a woman expecting a baby is fired, laid-off, not hired or otherwise denied employment benefits due to her pregnancy or intention to become pregnant. Common examples of pregnancy discrimination include not being hired because of a visible pregnancy, being let go after informing the employer of a pregnancy, being fired after a maternity leave, or receiving a pay reduction after a maternity leave. It is important to note that companies are required to provide the same amount of time-off and the same pay and benefits during a leave for pregnancy as it provides to employees for any other types of disability or medical condition. Any company health insurance plan must cover pregnancy in the same way that it covers other medical conditions.

Another type of pregnancy discrimination occurs when the company tells a pregnant woman that she cannot continue to work. A pregnant employee is entitled to work if she wishes to do so as long as she can perform her job. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, the company cannot require her to remain on leave until the baby’s birth. The company is also required to offer a pregnant woman a reasonable accommodation which she requests so that she can continue to work. For example, the company would be required to temporarily offer a pregnant employee a job assignment that requires less lifting.

Some employers discriminate against pregnant women because they are afraid the employee will need time off or the employer is concerned that after the employee returns from maternity leave, she will need time off occasionally to take care of the baby.

A pregnant employee must be aware of the following: An employer may want to fire a pregnant employee but may be worried that if they do the employee will get a lawyer and sue the company. So instead of terminating the employee alone, the company tries to hide the illegal discrimination by including the pregnant employee in a large group layoff. An employer usually believes that an employee is less likely to question the termination because she thinks she just is unlucky to be part of a large layoff because of the bad economy. But the employee needs to examine her layoff carefully. Of course the company has the right to lay off employees if it needs to save money. But remember that the company is not laying off everyone. It puts only certain employees on the layoff list. The important question is why did the company choose the employees on the list and not other employees. Therefore, any pregnant employee who is laid-off must ask herself whether or not it makes sense that she was selected to be on the list instead of another worker. Does she have more seniority than other employees in her department who were not laid off? Is she a better worker than other employees in her department who were not laid off? Therefore, the pregnant employee, or the employee who has recently returned from maternity leave, needs to make sure that the company is not attempting to hide their illegal discrimination by wrongfully including her in a group layoff.

The Family and Medical Leave Act (FMLA) is a federal law that requires most employers to allow an employee to take a leave of absence of up to 12 weeks before or after a baby is born. An employee who takes this leave is entitled to the same job and pay when they return to work. The federal law does not require the company to pay the employee during this leave but a New Jersey law does provide for some pay during a leave for the birth or care of a baby. An employer is not permitted to retaliate against an employee who requests time-off under the FMLA. For example, an employer may not discharge, demote or reduce the pay of an employee who uses FMLA leave. Employees can use the up to 12 weeks of leave at any time during the duration of the pregnancy and for one year after the birth of the child.

Many people believe that the FMLA only permits female employees’ time off in connection with a pregnancy. This is not true. The father is entitled to take FMLA leave from work to care for a newborn baby, and a husband is entitled to FMLA leave if needed to care for his pregnant spouse for medical reasons before the birth or after the birth.

If you believe you may have been discriminated against because of your pregnancy or denied rights under the Family and Medical Leave Act, you can contact the Equal Employment Opportunity Commission, the Department of Labor, or speak to a lawyer who specializes in employment law matters.

Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. Feel free to contact him if you have a question about this article or any other labor law issue. He can be reached at (732) 325-0318 or at www.schleylaw.com.

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Law Offices of Mitchell Schley, LLC
197 Route 18 South, South Tower – Suite 3000, East Brunswick, NJ 08816 • Phone: (732) 325-0318 • Fax: (732) 325-0317
245 Park Avenue, 39th Floor, New York, NY 10167 • Phone: (212) 672-1848 • Fax: (212) 372-8798
mschley@schleylaw.com
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