I Want to Fire My Employee, but She’s Pregnant

by Evil HR Lady on May 7, 2018

The HR director told me that I cannot fire my assistant, who is not performing until she gets back from maternity leave. Here are the details:

•     After 3-6 months of her being in the position, it became apparent that she was unfit for this position. There are parts of the job description that she simply cannot and will not do.
•    She informed me (supervisor) she was pregnant around Dec.
•    I approached HR in Jan and they told me to place her on a 3-month enhancement plan – which is ongoing and ends shortly.

    •    She informed HR the same week she was pregnant.
•    Since we were getting ready to terminate the HR director was notified and he said we could not do that until she returns from maternity.
•    Not to mention she has developed a terrible attitude towards me (slamming doors; rudeness).

She will fail her last enhancement plan but nothing will happen. What am I to do? Is there anything I can provide to the HR Director to help her reconsider? 

To read my answer, click here: I want to fire my employee, but she’s pregnant

Leave your own answer in the comments!

{ 18 comments… read them below or add one }

Parker May 7, 2018 at 3:38 pm

Yep, typical liberal answer. Give the slacker unemployment. Take the easy (and illegal) way out. Believe or not, in the USA employers pay for unemployment claim experience. Despite a number of tender hearted lawyers advising this, it is a bad, bad, bad management practice and a clear indication that you are failing to do your job properly. Very bad advice.

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Miller May 7, 2018 at 7:51 pm

What is illegal about paying unemployment? Ultimately it’s the agency that decides, not the employer.

Suzanne gave practical advice.

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Just me May 7, 2018 at 8:40 pm

I worked for a company that would fight every unemployment claim made, even if it was justified.

You are right, companies do end up paying when an unemployment claim is filed. They do not pay the actual claimant, but their unemployment tax rate goes up so, in effect, they do pay.

However, in most cases fighting an unemployment claim isn’t worth the time and effort it takes to do it. Besides that, I think it is petty. Consider it the cost of making a poor hiring decision and move on.

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Maria Rose May 7, 2018 at 4:03 pm

Everyone is so worried about PC correct wording of documentation that the reason for making a corrective action is not addressed. From this article, I got the impression that this worker was not a good performer at job from the get-go, and apparently she was put into a special track to improve her performance. I also gather that she has failed repeatedly, which means that she can be fired for not adjusting performance to level expected. She may try to use the “I am pregnant “card but the company has the right to terminate her based solely on her performance at job. There was no prejudice in expecting correct job performance, because if she “needed “ special consideration for the job because of the pregnancy, she would have brought it up already ( doctor’s note). Bringing up her condition as a reason for job performance has no place in discussion as performance was occurring prior already. The company has done the steps to address the poor performance by having the training program. Failure to achieve after that program does qualify for termination with due clause. Unfortunately for the company, they will have to agree to the unemployment benefits. They could inform her of decision immediately. Waiting until she comes back from maternity leave, will only result in an unnecessary delay to the dilemma.

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Jill May 7, 2018 at 4:04 pm

Parker, I’m not sure what’s illegal about Suzanne’s response… And sure, her suggestion was not to oppose unemployment even though the employee is being fired for poor performance. But don’t forget – how a company treats an outgoing employee also affects the morale of the remaining employees. Not opposing the unemployment tells everyone else that remains with this company that they don’t work for tyrants. That even if they fire you or have to let you go, they won’t be heartless a-holes about it.

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Maureen May 7, 2018 at 4:16 pm

Right. Also, the unemployment agency will probably look at it as “did the job to the best of their ability” and award the unemployment anyway. This situation, based on the info presented, isn’t worth the man hours spent on fighting and appealing the unemployment award.

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BethRA May 8, 2018 at 3:22 pm

Ignore Parker, I think he has a crush on the EHRL, and these posts of his are the online equivalent of trying to put a frog down her dress on the playground.

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BethRA May 7, 2018 at 4:11 pm

In the USA, employers also pay legal fees and occasionally large settlements when they get sued.

I’m betting the HR director is hoping that this person goes out on maternity leave and decides not to return on her own. Not a risk I’d want to take.

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Dorothy May 7, 2018 at 4:23 pm

Terminate her when she fails her final review. Oppose any unemployment’s benefit she seeks.

Unemployment customs and rules vary from state to state. In some states the employee virtually always receives the benefit in others, the company is more likely to fight it successfully.

In future, do your job, monitor employee performance more closely, and document their performance. Bad employees never wake up one morning and start behaving well. It’s up to you to be the professional and deal with bad employees. That will go further to foster the good morale Jill mentions. Letting bad employees slide is disrespectful to good employees.

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Becky Mcintyre May 7, 2018 at 4:25 pm

Spot on advice. If I were the HR person, I would have put her on a performance Improvement plan immediately and terminated her according to the schedule if she didn’t meet expectations. (I would also follow up with the supervisor very regularly to make sure performance was documented and meetings were held. No “putting it off because it is uncomfortable.”) In California, she’d be eligible for unemployment unless she was dismissed for gross misconduct.

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Mr Cynical May 7, 2018 at 4:29 pm

This just reinforces my decision to never be a manager, just an “individual contributor.” As my favorite director once said: being a front-line manager is the hardest job in the corporate world.

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Terri May 7, 2018 at 7:55 pm

I have to defend Suzanne Lucas on the recommendation to allow the unemployment claim.

Here’s a copy & paste from a article I saved years ago. We also no not deny unemployment claims.

I’m also a diehard Republican (in reference to the liberal comment).
*****************************************
Why employees sue

At the conclusion of a day-long plaintiff’s deposition in an FMLA and disability discrimination lawsuit, it was clear to me that my client had not only not violated any laws, but bent over backwards to do everything possible to accommodate the plaintiff. The company had treated this employee so well, I asked a question that I had never asked in another deposition—why are you suing?

It seems to me that they treated you fairly. They gave you an initial medical leave of more than 12 weeks, they provided you every accommodation you requested for your medical conditions, they provided you a second medical leave of more than 12 weeks, and you received several raises during your employment. Why are you suing this company?

The answer she gave floored me—not because it was damaging to my case, but because something that seemed so trifling caused the lawsuit. Her answer: “They started fighting my unemployment.”

Employees sue when they feel disrespected or when they perceive unfair treatment. It is not simply enough for an employer to treat employees well during their tenure. Employers should also strive to treat employees well in conjunction with their terminations and even thereafter. Sure, there are exceptions. I would never suggest that a serial harasser deserves a pass, or that the employee who stole from you should receive unemployment or a good job reference. If you don’t want to be sued, though, don’t make a terminated employee feel like a common criminal by having security escort them to the door (unless you legitimately and reasonably perceive a safety risk). It’s okay not to give a glowing recommendation to a marginal ex-employee, but resist the urge to trash him or her to a prospective employer. Don’t fight unemployment except in the most clear-cut cases. These little things could go a long way to an ex-employee reaching the decision to let bygones be bygones and not see you in court.

Written by Jon Hyman

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Evil HR Lady May 8, 2018 at 6:35 am

Jon Hyman is the best!

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Jon Hyman May 8, 2018 at 12:32 pm

I agree (and thanks to the O.C. — it’s one of my favorite posts ever)

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Arrow May 9, 2018 at 10:51 pm

I read about a similar concept in Malcolm Gladwell’s book, Blink. In that case it was about medical lawsuits. A patient wants to sue the doctor that was dismissive or mean, even if it was the nice doctor that dropped the ball. People won’t sue nice people unless they have to.

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c andrew May 7, 2018 at 8:36 pm

A friend of mine was managing a fast food restaurant. Two of his employees – a husband and wife – had been caught stealing money from the business. He put them on a payback plan, but kept them employed.

They stole another $2000.00. He fired them and turned them into the police, who refused to pursue an investigation. They filed for unemployment.

The Labor Board granted their unemployment saying that because he hadn’t fired them the first time they stole from the business, he had set up an expectation in their minds that they would not be fired for that behavior.

He didn’t have the money to appeal the Board’s decision so he just took his lumps and the increased unemployment insurance rate that came with it.

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Just me May 7, 2018 at 8:44 pm

A great example of what I said above. Had he fired them after the first offense, they would likely have been denied unemployment for cause. In this case, the employer paid the increased insurance as a result of his poor decision to keep them employed.

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Noemie May 8, 2018 at 11:30 am

This is a very good example of why it’s so important to closely monitor both the performance and attitude of new employees.

Some people are slow learners and will need longer to understand how to do certain tasks but attitude issues are usually visible early on. Someone who is rude to her manager and slams doors probably gave hints of her bad attitude from day 1.

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