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Negative Performance Review based on STD leave for Pregnancy Virginia

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  • Negative Performance Review based on STD leave for Pregnancy Virginia

    Hello! I live/work in Virginia for a company based in CA. We have 9 employees that are all virtual from several different states. Our handbook clearly states that we have vacation time, sick time and STD benefits offered by the employer as needed. In October 2011 I gave birth to my daughter and took my 6 week STD leave which included 38 vacation hours, 12 sick hours and 5 weeks paid STD through our insurance carrier. There was no issue with being approved, nothing out of the ordinary, etc.

    A year later I am completing my performance review with my supervisor and find out that our Executive Director has suggested that my approval rating for Dependability be reduced negatively based on the fact that I took 5 weeks more leave than any of the other employees within the past year and that my "average" time not working is "worse" than the other employees.

    He clearly states that the only reason for this reduction in my rating would be because I took the additional 5 weeks off for my pregnancy. I have NEVER gotten a bad review or any indication that I would be rated negatively for any reason, including the rest of this current evaluation and from my own supervisor. This is coming straight from the ED and based solely on the "fact" (his words) that I took 5 week off (STD) more than everyone else.

    Given that his comments and suggestion is based solely on the fact that I took my employer offered STD benefit for a pregnancy leave, isn't this considered discrimination and illegal?

    I would like to have this documented in my file in the event of future issues, but can't find anything that states that this is clearly discrimination or illegal. Can anyone help me?

  • #2
    I'm afraid the fact that the employer is CA-based isn't relevant; law of where you work from controls.

    "We have 9 employees that are all virtual from several different states."

    I presume this isn't to say that your employer in total only has 9 workers (it would be weird for them to have the kind of benefits you outline if so).

    If your employer doesn't employ 50 folks within a 75-mile radius of you, worth noting that it doesn't have to worry about complying with FMLA (and as such is free to hold the absence against you).

    If the employer has 15 or more workers, you're free to complain to the EEOC and state equivalent about the apparent/arguable gender discrimination if you have reason to believe other workers who've been absent from work for a given length and not received negative reviews noting/based on the absence. That said, it isn't necessarily true that your pregnancy is anything more than a circumstance/that the absence itself isn't the issue as stated.

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    • #3
      Originally posted by Fallen View Post
      I'm afraid the fact that the employer is CA-based isn't relevant; law of where you work from controls.

      "We have 9 employees that are all virtual from several different states."

      I presume this isn't to say that your employer in total only has 9 workers (it would be weird for them to have the kind of benefits you outline if so).

      That said, it isn't necessarily true that your pregnancy is anything more than a circumstance/that the absence itself isn't the issue as stated.
      My organization actually only has 9 employees and we all work from a total of 7 different states and, yes, we do have full benefits as I stated above.

      You are right that FMLA does not apply, I took STD and I'm asking strictly about discrimination based on my absence because of pregnancy STD leave.

      And, yes, it is true that the pregnancy leave is the only reason for the issue because he states that exact thing in writing in my review. He states that my rating should be lowered because I took 5 weeks off for pregnancy. I'm had no other issues or bad reviews for any other reason from anyone in the company and, in fact, all of my reviews have been fantastic.

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      • #4
        Wow. Kinda strange that the employer offers that level of benefits for nine folks.

        "You are right that FMLA does not apply, I took STD and I'm asking strictly about discrimination based on my absence because of pregnancy STD leave."

        If there aren't at least 15 employees, I'm afraid discrimination laws don't apply in VA even if you COULD establish your employer was holding the absence against you merely because of gender/his thinking it's okay to do so just because you were pregnant and didn't on the other hand hold such an absence against, say, some male who went out with a bad back. (His being specific doesn't necessarily mean he has a problem with women being out 'cause they're giving birth vs. men.)

        But that doesn't mean that you can't effectively scare him by saying "Uhm, Joe, would you give a bad review about John if he was out recovering for a back problem?" I want you to remove that derog remark about my review." Not all employers understand the law.
        Last edited by Fallen; 10-02-2012, 01:50 PM.

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        • #5
          You also have to consider the possible outcomes and whether you'd be on this person's ess-list so to speak if you made a stink about this if there is no adverse impact on you otherwise, say, your pay is being lowered or you wouldn't earn what you'd otherwise earn.

          You're in a precarious position given that few workers, and you can be let go on a pretext/for no reason at all.

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          • #6
            That is what I was afraid of! I simply wanted it documented in case this becomes an issue in the future and, this is the rub, we are actually a non-profit that helps disability management professionals keep and bring their employees back to work after disability leaves, etc.

            He is strictly old school male and doesn't feel he did anything wrong, and I guess he is right according to the law, sigh.

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            • #7
              Even if he's able to do it under the law without repercussion, that doesn't mean it wouldn't be worthwhile to take a crack at pointing out to him that he mightn't think it fair to do the same to a guy who was birthing a hernia instead of a human being.

              Good luck.

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              • #8
                Originally posted by Fallen View Post
                Even if he's able to do it under the law without repercussion, that doesn't mean it wouldn't be worthwhile to take a crack at pointing out to him that he mightn't think it fair to do the same to a guy who was birthing a hernia instead of a human being.

                Good luck.
                I wish that were the truth. My supervisor tried to point that out to him several times during a heated, long argument, but he believes he is just stating fact, which I guess he is right. I problem I have is when he wants to fault me for it. Oh well, I guess there is nothing I can do at this point.

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                • #9
                  [QUOTE=Fallen;1181133]If there aren't at least 15 employees, I'm afraid discrimination laws don't apply in VA[/QUOTE

                  Discrimination Va. - Virginia's Human Rights Act covers employers not covered by Title VII - applies to employers with between 5 & 15 employees. However, the law is narrower than Title VII in that it only outlaws termination.
                  (just to clarify above)
                  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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                  • #10
                    STD isn't a safeguard, it is just income replacement. Fair or not, if there are only 9 employees, one of you being out for several weeks does impact the others significantly. It means there is a job not being done or others have to fill in. That is the reason very small employers are exempt from most discrimination laws. It may not seem fair to you, but it isn't illegal.
                    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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