Pregnant employee wants to be laid off. Can I do that?

I have an employee who is pregnant and wishes to be laid off from our firm due to personal marital issues and due to not being able to perform her duties as an employee at this time. She has had numerous absences and unable to focus or keep up with her work. She feels that she cannot perform her functions as an employee and wants to be laid off so that she can claim unemployment. She indicated that she will not file a claim against us due to the termination. If the firm requests that she states it in writing and signed by both supervisor and her, does she have any legal claims later?

Posted 10-18-2011

Ann Kiernan replies:

I think there is a way to terminate her employment and enable her to get benefits, but not through unemployment. Based on the information you have provided, this would not be a layoff, since there is no lack of work for her to do. It would violate the law in your state, California, if you were to give a false reason for her termination or fail to provide the correct information if she falsely claimed that she was laid off. Also, since she is unable to focus and perform on the job, she would not be considered able and available to work, which is essential to her ability to collect benefits.

Since California is one of the states that provides temporary disability benefits, you could terminate her and she could file for TDI, assuming that her doctor would certify that she is unable to work. After the baby comes, she can collect up to six weeks of additional benefits under California’s family leave insurance program.

If you want her to agree in writing that she will not sue your company because of her termination, you will have to provide something of value in exchange for her agreement. This is called “consideration”, and is standard contract law: Each side has to give something to the other. Typically in these matters, the employer agrees to give some severance pay, or to continue to pay for health benefits for a period of time, or to provide outplacement assistance, or to let the employee keep a cell phone or other company equipment.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:41+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.