Pregnancy Discrimination Act question

KCHR

Another strange question. One of the staffing firms that I provide the HR for had a temporary to hire candidate lose her job the other day due to pregnancy complications. She was working at a non-profit group that supports adults with Mental Retardation/Developmental Disabilities as a Direct Support Technician. At the time of the offer, the client knew she was pregnant and had proposed giving her ample time off when she was due. Unfortunately, complications arose that caused her to be hospitalized weeks before expected. Now the client does not want her back. She had not yet converted to the client's payroll at the time of the hospitalization. Any feedback on this?

TN HR

I did not want her back because the project she was working on for us is over/funding went away/we simply do not have any work for her.

In other words, she's yours. Unless she can prove that a discriminatory, non-business related reasons exists then she has nothing.

LivindonSouth

You still have FMLA to contend with as well as PDA and a joint employer relationship. Consult an attorney. Employing temps is not the 'license to abuse' that we once thought it to be.



"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin

Judith

She would still have to meet the time requirements of one year to qualify for FMLA

LivindonSouth

Yes, but with the temp agency, not just this one worksite.



"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin

WT

Ask yourself, if it was a heart attack or any other illness, would the job have been lost. If the anwer to that is no, then the employer's position is dicey. Pregnancy is being singled out and that is what PDA was meant to remedy. If any illness requiring the employee to be absent would have caused the employer to get somebody else, consolidate, wrap the job up, or make other plans, then the position is better.

KCHR

I think that is the problem I am having with this. The employee was going temp to hire over a 90 day period, so the work definitely did not go away/end, as they intended to convert her to their payroll after that time frame. Would she then be subject to how they would have treated an employee they hired directly themselves that faced similar circumstances? If so, does the PDA provide specific job protection for someone who was just hired? A literal reading doesn't seem to give new employees much protection unless the company has some sort of short term disability policy that kicks in the moment you are hired.

Thanks to the other posters, but FMLA definitely does not apply in this case.

marc

I understand your problem, but reconsider the viewpoint offered by WT, and try to do it from the employers perspective.

You are in the "introductory period" and your new EE developes medical complications that prevents her from coming to work. When you add the temp agency in the mix, it gets more complex, but the employer just wants to get the work done.

Telling the ER that it has to hire a temp to replace a temp just seems crazy. Do you expect them to come to you and say - hey I need two temps to alternately do this one job. Can you accomodate me?

LivindonSouth

The employer is mistakenly assuming temps have no rights and they are laying it all off on the agency. Pregnancy discrimination is not precluded by the whispering of abbreviations and acronyms. The company is your business partner in this arrangement and is asking you to buy into an act, which reviewed in conclusion is illegally discriminatory. The temp agency, in its rush to ensure continuation of the relationship with the employer is about to put all ten fingers under an unguarded stamping press. Pray that the activator is not engaged!



"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin

WT

The PDA would apply to even short time employees. There is case law out there on PDA protection for potential employees being interviewed. The PDA prohibits discrimination by employers based on "pregnancy, childbirth or related medical condition". In Kerzer v. Kingly (WL 652334) the Second Circuit ruled that to establish a case of prima facie pregnancy discrimination, the plaintiff need show 1. she is a member of a protected class. 2. she satisfactorily performed her job duties. 3. she was discharged. 4. her position remained open and was ultimately filled by a nonpregnant employee.

Based on this, the behavior exhibited toward the pregnant employee does not seem neutral unless, again, any illness causing an employee to miss time would have terminated the position.