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  • Hid pregancy during hiring process... California

    Well this is a new one for me; we just hired a new hostess and interviewed her twice by three people, and when she started today, the clothes she was wearing revealed a quite an obvious baby bump. None of us saw it before because she was wearing cleverly cut outfits, but today she is wearing a form fitting top and there's no mistaking.

    Our problem is that we needed a hostess who will be here through our busy season which is starting next month and continues on through April. There is no way she could work 7 months!

    Can we let her go? On what premise?
    Last edited by electricca; 10-13-2011, 07:45 AM.

  • #2
    I don't think she had any obligation to tell you she was pregnant, and every reason not to, based on the amount of pregnancy discrimination out there.

    For the future, you could have prevented it by asking a generic question specific to your needs - "We have our busy season coming up. We need someone who can handle working X hours a week continuously through April. Will you be able to do that? " Or something.

    Others who are more knowedgeable on this subject will pipe in, I'm sure.
    I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

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    • #3
      Hindsight 20/20 for sure.

      However, I guess I could ask her now if she has anything coming up that might disrupt her from working through the season, and let her go based on that?

      Or hopefully (never thought I'd say this!) she is not good at all...

      What a mess...

      Comment


      • #4
        Nope, can't ask her that now. AND you would have had to ask that of EVERY applicant, to be legal.
        I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

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        • #5
          However, I guess I could ask her now if she has anything coming up that might disrupt her from working through the season, and let her go based on that?

          Sure you could...as long as you don't mind being on the losing end of a discrimination lawsuit. It is absolutely illegal under Federal law and the laws of most states including yours, to terminate someone because of pregnancy. The ONLY way you could avoid losing the subsequent lawsuit would be if you could show, as Alice points out, that you had asked EVERY SINGLE APPLICANT if they would be available through the whole season. Otherwise, the only question would be how many zeros will be on the check you eventually write to her.

          She had absolutely no legal obligation to tell you about her pregnancy beforehand. You had the opportunity, before she was hired, to ask her and every other applicant if they would be available through the busy season. You didn't. Your bad. You're stuck with it. There's no going back now.

          Oh, and the state of California is really, really good at seeing through pretext violations. So if you have any idea of firing her based on performance reasons, you'd better have documented proof of poor performance AND be able to show that other employees who performed similarly were also fired.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6
            You cannot legally fire her because she is pregnant. Period! She should be extended the same rights to available medical leave as a man with similar tenure who needed to take leave. If she requires more leave than a male counterpart, then you can lawfully terminate her for not being able to work.

            Fortunately for your company, she does not apparently have any further rights under federal anti-discrimination law, the FMLA or any other federal statute. You will probably want to confer with your business attorney to make sure that California does not extend her any additional rights under state law in this regard.

            Finally, she may surprise you. Some women have worked throughout their pregnancy, given birth and returned to work, utilizing relatively few days of leave in the process. Of course, it remains to be seen whether this particular employee can successfully manage pregnancy, child birth and her job. Federal and state law, though, requires that your restaurant to give her a chance to do so.

            Comment


            • #7
              Pregnancy Disability Leave-(under Fair Employment & Housing Act) (Ca. pregnancy)
              An employer must provide up to four months disability leave for a woman who is **disabled** due to pregnancy, childbirth, or a related medical condition. (subject to med. cert.) However, if an employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.
              Eligibility for pregnancy leave-
              A woman who works for a covered employer is eligible for pregnancy disability leave regardless of the length of time she has worked for the employer. Further, an employee does not have to work full-time in order to be eligible.
              (This is unpd. job protected leave.) Applies to employers with 5 or more employees.

              The PDL is up to 4 mos. for a pregnancy which makes the employee *unable to work* (does NOT include bonding).

              I might mention that generally a doctor will medically certifiy for a normal pregnancy 4 weeks off prior to birth
              & 6 weeks off after birth for PDL. An employee who has paid into Ca. SDI, will get SDI pay while off on PDL.
              Last edited by Betty3; 10-12-2011, 09:23 PM. Reason: add info
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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              • #8
                You had no guarantee that if she wasn't pregnant she would work through April. She could quit on you at any time.

                When you are actually sure she is pregnant, speak with her about her plans. Then you can go about hiring a replacement for her when she goes out.

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                • #9
                  You hired her (didn't matter whether you knew she was pregnant or not) so you
                  can't fire her due to her pregnancy - sorry. If she would happen to quit, then
                  that is a different story. "Doubtful" though - she will "probably" work until she
                  needs her pregnancy leave.
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                  Comment


                  • #10
                    Thank you all for your replies, as I suspected we are now stuck with her. Lesson learned; one of my standard interview questions will from now on include "do you know of any reason why you would not be able to work continually for the next twelve months" and will document each applicant's answers. Not that it will really have any real meaning, but maybe someone with honest character will admit they have other plans!

                    We have plenty of employees who will have and have had babies and we take care of them and make sure they have all the information available for SDI and PFL etc., throw baby showers and all that. I'm just a little angry at the hiding the fact and then show up with 4 months bump in a snugly fitting top. She was definitely intentionally concealing it and we even specifically made sure she knew her position was not just one of the regular hostesses, but one that will be more of a supervisor and a leader and who will demonstrate to our regulars continuity and familiarity. Now I can't trust anything she says or does since the employment relationship started on a negative note.

                    But what's done is done and we'll move on...

                    Comment


                    • #11
                      Just because she didn't inform you of her pregnancy (remember she didn't have to) -
                      doesn't mean she will necessarily be a person you can't trust.
                      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                      Comment


                      • #12
                        I can understand that you feel betrayed but playing devil's advocate, look at it from her side. No one is excited to hire a pregnant employee or any employee who is going to need to take several weeks off work shortly after hire. Best case scenario, the employer is willing to overlook that fact and hire them anyway. There is a reason there are laws protecting pregnancy and this is it.

                        While you might be a decent employer who wouldn't select someone else over her because of her pregnancy if she was honest about it, she doesn't know you. All she knows of you is the little she has learned during her interviews. At no time during the interview did you make clear that there was any sort of expectation that she be able to work the busy season so she had no idea this would be problematic. If she had known, she might have stepped out of the running on her own.

                        Pregnancy is actually a pretty easy situation to deal with. The condition is limited by its very nature.
                        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                        • #13
                          I absolutely understand it from the employee's point of view too. The thing that just bugs me is the lying about it. If you consider hiding facts lying.

                          Anyway maybe she'll be the most wonderful employee we ever had and things will work out just peachy.

                          Thank you again for giving voices of reason and I will now consider my question answered.

                          Comment


                          • #14
                            You're welcome.
                            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                            Comment


                            • #15
                              The thing that just bugs me is the lying about it. If you consider hiding facts lying.

                              You didn't tell her that she was expected to be there continuously with no possibility of medical leave should it be needed. Did you lie to her?
                              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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