Out of sight, out of mind, out of job: The reality of job protection while on maternity or parental leave

If you think your job is safe while you are on maternity or parental leave, think again.

In good economic times, when companies were hiring people right, left and centre, it may not have been easy for them to let go of someone who was pregnant or who was on maternity leave without it being considered discriminatory. But now that we are in an economic crisis and companies are letting people go anyways, it may be easiest to let go of the person that hasn't been around much. I mean, if John put together a great PowerPoint presentation for you last week and Jane hasn't been in the office for 10 months and you have to let one of them go, who is it going to be? Out of sight, out of mind, out of job.

The Canadian Situation

Here in Canada, most industries are regulated by provincial labour laws and human rights codes.  In the case of Ontario, here is what the Employment Standards Act of 2000 says (emphasis is mine):

The Right to Reinstatement

In most cases, an employee who takes a pregnancy or parental leave is entitled to:

• the same job the employee had before the leave began; or


• a comparable job, if the employee's old job no longer exists.

In either case, the employee must be paid at least as much as he or she was earning before the leave. Also, if the wages for the job went up while the employee was on leave, or would have gone up if he or she hadn't been on leave, the employer must pay the higher wage when the employee returns from leave.

If an employer has dismissed an employee for legitimate reasons that are totally unrelated to the fact that the employee took a leave, the employer does not have to reinstate the employee.

Ah yes, reasons that are totally unrelated. Like an economic downturn for example. This is what we are starting to see more and more frequently in Canada. As the CBC reported, maternity leave firings are becoming more common. According to the CBC:

Toronto employment lawyer Daniel Lublin said he used to get a few inquiries every month about women being laid off while on maternity leave. Now, he said, claims have quadrupled...Many of the calls Lublin fields are from mothers just getting ready to return to work. Most of them just take the packages they're offered.

The economic downturn has been hard on a lot of people. A lot of people have lost their jobs. So what makes these mat leave firings different? Most people that are let go are entitled to Employment Insurance benefits. However, when you've been on parental leave, you generally do not have enough hours of work accumulated to qualify for Employment Insurance benefits. That means that you go from the not so fabulous parental leave benefits (maximum of 55% of your salary, but in reality much less than that for a lot of people) to nothing at all. Just when you were expecting your earnings to ramp up again, expecting to pay off some debt, you are suddenly left with nothing.

On The National, the CBC reported that some union leaders (like Laurel Ritchie from the Canadian Auto Workers Union) and some Members of Parliament (like the New Democratic Party's Irene Mathyssen), are lobbying to have the rules related to Employment Insurance changed so that people returning from parental leave only to be fired from their job would have access to Employment Insurance benefits, but there has been no commitment and no movement on the issue so far by Stephen Harper's Conservative Party.

Is it different in the United States?

Most people know full well that maternity and parental leave in the United States is not as generous as in Canada. Some industries may have up to 12 weeks of leave, but others may not have much if any and people may be scrambling to cobble together vacation,  sick leave and disability benefits in order to take some time off.

However, for the short duration of the leave, it appears as though there may be stronger job protection. For example, the Pregnancy Discrimination Act says that "employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave".  For those industries covered by the Family and Medical Leave Act:

IN GENERAL.--Except as provided in subsection (b), any eligible employee who takes leave under section 102 for the intended purpose of the leave shall be entitled, on return from such leave--

• to be restored by the employer to the position of employment held by the employee when the leave commenced; or


• to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Held open, restored...but for how long? Can someone be fired, for example, in their first week back? I think regardless of the system, if employers are intent on letting someone go, they will find a way.

How do these maternity and parental leave lay-offs affect real people?

I contacted a few people who had been put in the precarious situation of losing their job while pregnant or on parental leave and heard a wide variety of stories:

• Amanda from Family Nature (also @familynature on twitter) was laid off from her job in the software industry in Toronto as part of a series of lay-offs. She said that there were three people in the same position and two of them were laid off. She wrote: "I was on maternity leave, one was pregnant with twins and the other was a young woman, not married or pregnant. They were keeping one person, can you guess which person they kept? Yes, the pregnant woman and I were laid off." The woman that they retained was the most junior of the three. Amanda also said that a number of pregnant women were targeted specifically and openly for lay-offs.

• One woman, who asked to be anonymous, was laid off when she was 5 months pregnant as part of restructuring and was told by lawyers that the company could do whatever they wanted and that pregnancy had nothing to do with it. She said: "I cried for a long while. I didn't look for another job because I would be giving birth in a couple of months. I was pretty stuck. Who would hire someone with a big pregnant belly?...I felt rejected, worthless, and stressed with sudden uncertainty right before having a baby."

• While she didn't lose her job right away, Sarah from Mothers of Innovation (also @moixx on twitter) who lives in the UK found that decisions were made about her position in her absence that perhaps she could have influenced if she had been there. She wasn't able to return to the position she thought she was going to return to and seh was eventually laid off after being back for a year.

• The Toronto Star reported about two outrageous cases. One where an employer sent an e-mail saying "Sorry, but with your little bundle, I don't think we'll be able to (re)hire you." In another reported case, a woman was given a $300 gift card and told not to come back to work just hours after announcing that she was pregnant.

• It isn't only women that are affected. One father that I interviewed decided to take some parental leave after his son was born prematurely and had a life threatening infection. He said his employer offered him one week off and when he requested four weeks of parental leave he was let go and no reason was given. He says: "I was fired because I put my family before my career. An employee needing extended time off is a required part of any business plan. The food service industry has been taking advantage of its employees for years. I averaged about 12 hours a day of work including some weekends and holidays, yet when I needed time for my family I was fired".

Some people were able to recover from the loss of their job, either quickly or with time:

• The woman quoted above who was fired when she was 5 months pregnant also said: "I am very happy now and was lucky that it all happened the way it did..."

• Jessica from Four Square Schoolhouse is an American and was laid off while on maternity leave from her bank job due to a take-over of her company by another that involved a series of lay-offs. She said: "Honestly, I was so wrapped up in the new stage of my life I didn't consider it a loss of any kind. Sure, the monetary loss of income has had a huge impact on our lives, but my overall attitude towards life has improved immensely...I absolutely love being a stay-at-home mom. I miss my former co-workers sometimes but not the job."

But not everyone is happy and a lot of people will struggle financially and emotionally for a long time from being treated unfairly.

What is next?

I think certainly that the calls for changes to Employment Insurance benefits is a start. This will help ensure that people that go on parental leave and then don't have a job to return to can still get benefits. Or even better, maternity/parental leave benefits could be administered under a separate program altogether (like they are in Quebec), in order to ensure that Employment Insurance is used in cases of someone losing their job and a separate class of benefits are established for the purpose of parental leave.

One person that I interviewed suggested making it mandatory for the person on leave to return to a job at the same level for a minimum amount of time after returning. She said "I've heard of may moms get laid off within the first week of returning. Why waste money for back to work clothes, commuting, frantically searching for a spot in day care, and get laid off within the first week of returning? Daycare deposits cannot be refunded, work clothes are already work so can't be returned and commuting costs (i.e. monthly passes) probably can't be refunded either".

But beyond that, what we really need is an attitude shift. One where employers don't see peoples' family lives as a burden. One where people are treated with respect and treated equally. One where work-life balance is valued and not penalized. What I heard from the many people that I talked to is that it is a matter of companies acting in a manner that is ethical, and respectful, not just a manner that is convenient.

Comments

[Sam]

Sad but true, isn't it? When oh when will value be placed upon the bearing and raising of the next generation? It really saddens me.

[Amber]

I think we still have it better in Canada, overall. Many workers don't qualify for FMLA in the US because they work for small companies, are self-employed, work part-time, etc. People who don't qualify for FMLA may have no job protection at all, and can be fired or demoted for taking leave. Even if you don't qualify for EI in Canada your rights during leave are still protected under human rights and labour law.

That said, I'm on mat leave right now and it doesn't feel totally comfortable. As you said, if they're looking for someone to lay off why wouldn't they choose the person who cleaned out her desk in July? I have no reason to believe my job isn't secure, but it's not the best feeling to hear poor economic news while I'm chilling on the mommy track.

[Allie]

Another fantastic post.

Amber you are right, I worked for a small school in Seattle and because of the number of employees I wasn't eligible for FMLA. I knew that going in but I don't think many women know the particulars and or have any real choice .

[Jessica]

Wonderful article! Something I was thinking about as I read each person's account of how their layoff effected their income--and life...

Although I consider being laid off during my leave a sort of "happy accident," because it forced me into being a stay-at-home ...it took a huge toll on our spending habits. Some things are good--we've cut out almost every single unneccessary expense, but there are things like family vacations, college savings, buying a new car that have been put on the back burner and really, there is no relief in sight. That's tough.

Another interesting topic--which I forget to mention when I spoke with PhD in Parenting--do you (the readers) believe when a woman goes out on maternity leave, the general consensus is that the office "writes her off." Everyone sort of takes side bets on whether she will return or if so, how long she'll stay. I think this happens a lot to schoolteachers, too. Not only are women quietly expected to plan their end of pregnancies/births during the summer vacation, but once teachers become child-bearing, I know a lot of "I wonder if she'll want to stay home now?" talk starts up in the faculty room.

I'm rambling...these are just some more thoughts...

[Paige]

I've been told that my office is taking bets on if I'll come back to work. I was lucky to be covered by FMLA and my workplace is generally family friendly (I work for the US Government) place. My husband on the other hand had a hard time with paternity leave. Luckily he was also covered by FMLA but it seemed like they had never heard of a man using it! He got a lot of static and, although he is back to work, he is constantly getting asked if he is going to quit.

Another aspect of workplace discrimination is breastfeeding mothers. How much more valuable is the employee taking 3-4 pumping "breaks"? Once again, I'm fortunate that the government requires a clean quiet (non bathroom) place for me to pump but that doesn't guarantee the attitudes of coworkers.

[Kayris]

I consider myself quite lucky. I had only been at my job 5 months when I became pregnant. Because of the physical nature of my job, there were some things I could not do during my pregnancy, but no one ever complained about having to pick up the slack and I tried to make up for it in other areas. I had to go out on maternity leave a month earlier than planned, due to some severe back pain, then didn't go back to work until my baby was 8 weeks old. And when I did go back, it was with hours that had been tailored to when I said I was available.

With baby number 2, I worked until a week before she was born, and came back when she was 9 weeks old.

Both times, I pumped when I needed to.

I'm still at the same job, not making a ton of money, but have found my employer to be understanding when it comes to family and family issues. Some of the quotes in your article make me cringe!

[zchamu]

While there are unscrupulous employers out there who do discriminate and fire/lay off women simply due to their pregnancy, there are plenty of employers who treat pregnant women or new mothers exactly the same way as they would treat any other employee - which is exactly what they should do.

Part of the problem is women's perception of maternity/parental leave. Many women believe their job is absolutely safe for as long as they are gone, and that they can simply walk back in to the workplace as if nothing changed. This is unfortunately untrue, and can be dangerously naive. It is *perfectly legal* to fire someone for performance or to eliminate someone's position while they are on leave. In the case of firing someone for performance, the performance issues would have had to have been documented well before the person's leave took place. If they had not been, the employee would have a case to take to the human rights tribunal.
In the case of a woman getting laid off before/during/after mat leave, it's a stickier situation. If the position is being eliminated, it's perfectly legal. And let's face it: in this economic climate, if you're out of the office and your job has been absorbed by the rest of the team, it's kind of a no-brainer for the company to say, we don't need this headcount. If, however, someone else (cheaper, non-mother) has been hired to do that job, then again, the employee has a valid case at the human rights commission, since their job is obviously not redundant and is needed.

If someone has been laid off after returning from parental leave and therefore they have no EI benefits, they should speak to a lawyer and pursue the company for more severance. The bottom line is by waiting until they returned from leave, the company is putting the employee under undue hardship since they cannot obtain EI benefits, and the employee can pursue a higher level of severance.

However, the bottom line is that it is dangerous to believe that after being out of the office for a year, especially in a time of economic upheaval, that nothing has changed. Companies are cost-cutting. People are cut-throat and jockeying for position. And if you're out of the office on mat leave, you unfortunately are getting the short end of the stick.

The responsiblity falls on us, as women, to determine whether or not we can professionally and personally afford to take a full year of maternity leave in this economic climate. While I agree that being able to stay home with your child for the first year of their life brings innumerable benefits, it cannot be at the expense of everything else. It may be that it's the best decision for your family to return to work earlier than a year in order to preserve your job. It may be that you should keep in regular contact with your employer and be aware of what's happening at your office in order to remain relevant.

Fully aware that my opinion will be unpopular here. However the reality of the situation is, the job climate right now is incredibly competitive and if women don't take care of themselves professionally, nobody else will.

[phdinparenting]

@zchamu

Your opinion is not unpopular with me.

Many of the points you make are the exact reason I chose to wrote this. I think many women are naive about the safety of their job and I wanted to highlight here that it is not as safe as they think it is. I also wanted to highlight the fact that there are employers out there that do discriminate and some of them will hide that discrimination under a veil of "oh, we were just letting people off anyways". When the lay-offs disproportionately end up affecting those that do want to seek out work-life balance, then it is inappropriate.

With regards to women deciding whether or not we can professionally and personally afford to take a full year of maternity, I agree that the responsibility falls with us. But I also think that a great many employers and government policies could be made more "family friendly" to make that decision easier for women and to allow us to invest in our families while also trying to survive the economic climate

For my family, the best option was for me to take a shorter leave (3 months with my son, 6 months with my daughter) and for my husband to stay at home.
For me, the answer was starting my own company so that I could decide when to push harder at work and when to take time for my family without having to worry about what my boss thought of it. I live up to my commitments to my clients, otherwise they wouldn't hire me back, but I have the flexibility to decide which projects to take on and which ones to turn down and to work in partnership with my clients to set a reasonable time table for achieving results.

[Jessica - This is Worthwhile]

With FMLA it's unpaid leave, rendering that option obsolete for many families. It does protect your job, but certainly not your income during the absence. I had many friends who just took their 8 weeks, got notes written from their OBs to extend their leave for a couple of weeks (considered sick leave by the office) and then finally came back.

It's an interesting issue and one that the US is certainly lagging behind. I just read an interesting http://www.psychologytoday.com/articles/pto-19971101-000028.html" rel="nofollow">article in Psych Today about the politics of putting family first (it's not about mat leave, per se, but if you're going to support the family and its function, I believe mat leave is certainly a critical component of that).

I am just now beginning a journey to fight for better parental rights here in the States, particularly surrounding pregnancy and birth. Women shouldn't be in this vulnerable position of having to choose between a roof over her head and caring for her infant. I don't think they are mutually exclusive.

I thought Canada had the right idea...

And the truth is that any employee who takes advantage of corporate or federal sponsored programs that take them away from the office are discriminated against to some degree. The guy who slaves away in the office with no sign of stopping will usually get the promotion or the job saved. And I deliberately said "guy," because it's usually women that stay home with sick kids, take care of ailing relatives, etc. It's all a big mess and that's why I want to find out what I can do to change things, to help women (and men) who want to provide the absolute best for their kids through financial stability and loving parenting.

Great post. It's helping to straighten out my http://thisisworthwhile.blogspot.com/2009/04/sweaty-hamster.html" rel="nofollow">thoughts on this some more....

[Annette]

Thanks for this post. I am the mother of 2 daughters as well as a senior human resources professional in Canada. While there are certainly many unscrupulous employers out there, I am beginning to see a rise in forward thinking employers who see the true value and importance of having a diverse workforce. With good talent being hard to find and retain, an employer who wants to remain competitive needs to have policies in place to keep good employees happy and loyal. For example, most of the country's “top” employers have some form of paid parental leave program, whereby an employee's government benefits are toped-up by the employer so that the employee receives close to 100% of their salary while on leave. Public sector employer have had such policies in place for many years now and the private sector – even some small businesses - is catching up. We need to see more of this.

Replacing an employee is *extremely* costly. Smart employers know this. I have had employers in the private sector offer positions to mothers on maternity leave because they were the best person for the job. I have also experienced companies offering jobs to someone who is pregnant. It does happen.

I do agree with much of what zchaumu has said. Indeed, a woman on maternity leave often does get the short end of the stick. This is most certainly true in a times such as these when an employer can play the “economic crisis” card. One small piece of advice that I give to people taking parental leave is to remain on the employer's radar for the entire time that you are away on leave. Bring your baby in to meet your colleagues; attend important departmental meetings; go the office holiday party. A year can be a very long time to be away...

[Alina]

I live in the USA and was almost laid off during my maternity leave. When I returned to work, I discovered my job was completely changed -- I was transfered to a different department, new manager, new job, new everything except the same pay. This was all a huge shock to me. Looking back, I am lucky I was not laid off upon my return -- if I had given birth six months later, that might have been the case (if I had returned during this current economy).

In a tight economy where there are plenty of people out of work or underemployed, there is little or no incentive for employers to bend over backwards to support working mothers. Why hire a woman of two kids age 2 and under vs. a younger woman with no husband or children? In an interview you can tell by the ring if someone is married and many times, people volunteer personal information during an interview. Or, after three months on a new job, when the mom has to stay home with sick kids who can't go to daycare, why should the employer be supportive of her?

I find myself working EXTRA hard in my job. I strive to over-exceed the goals set for me. I try to get all of my work done as fast as possible. This is because I know that my two kids often become sick and must stay home from daycare. Plus, I was pumping 3x per day. Therefore, I push myself above and beyond while I'm at the office in order to "prove" that I'm just as good.

I'm not sure what the solution really is. If I was a manager I might not want to hire me, either. Maybe the real solution is to design families and lifestyles around a single income... to really analyze your budget and needs before giving birth. If I had to go back and give myself and my husband pre-child advice it would have been to clean up our personal balance sheet and trim down our cash flow.

[Janeen]

You know, reading these has me wondering if anything has really been accomplished by the feminist movement. Women STILL have to basically choose between career and home, they cannot get it all. There's still a lot of societal expectation of women to have children but at the same time, there's a lot of expectation for women to "do her part". It makes for a VERY confused situation. And worse, those who end up bearing the brunt of the problems are families and innocent children.

Sorry to say, but not ALL care outside the mom being at home is the best for the child. There are MANY situations where children have been harmed or even killed while under someone else's care (and yes, there are many that have the same happen under the parental care as well). I think we're looking at a HUGE fundamental shift in thinking here. Yeah, right now, we're in a time where two incomes are needed. The problem is, is that there just are not enough jobs for two incomes. So, that means that families have to cut things out, become more self-sufficient. Maybe it means learning to grow our own food again or learning basics like sewing and cooking. Have you noticed that it is those who have carried on old-fashioned values and skills that are doing pretty well? I think we have come to depend on too many things and have taken many other things for granted. We have finally reached a breaking point because of this and now, we need to step back, analyze what is REALLY important, and go back to that.

For too long, we have focused on material possessions and consumer goods and how much stuff we can have/own/buy at one time. Credit cards have definitely not helped that. These are just not values that can be supported for very long periods of time. It just doesn't work. Things are going to have to change and things WILL change eventually and I think once that happens, the economy will start to improve. Until then, it is going to be a huge struggle for all of us.

[phdinparenting]

@Janeen: I would agree that most families probably don't need two incomes and could find ways to be creative and do with one. But I don't think that always needs to mean that the man works and the woman stays home. My husband is a stay at home dad. We know other families where the parents both have flexible schedules or are self-employed and can share in both work and home tasks.

[Janeen]

Oh, I definitely agree with that. There are times I feel that I should be the one to go back to work while my husband stays at home with our daughter because I think he would make the better stay at home parent. He's also better at many of the domestic tasks than I am, he just can't breastfeed. ;-)

And it is not individual families at all that has caused the situation we're in but society in general that has brought about this, the idea that we (general we here) need all of these various things for as cheap as possible made of the cheapest stuff as possible has really affected a lot of things and now, we're starting to see the effects of it.

What would be nice to see is people getting together and helping each other out instead of isolating each other. The isolation is not doing anyone any favors. I think it does take a village to raise a child and we all could use some help. One of the BIG ways is when a baby is born people helping the mom out. SO many moms get overwhelmed right after having a baby and it's not always possible for the father to take time off to help. I know for my husband, he ended up being fired RIGHT AFTER he turned in his FMLA paperwork. They say it was due to something else and it very well could have but the timing was HIGHLY suspect. He was only going to take two weeks off but the supervisor was having issues of her own too and I'm sure that didn't help. He was fired less than a week before I was due with our daughter. He ended up losing his second job less than a month after that and I'm sure part of that was due to him not being all there that week after our daughter was born but he couldn't afford to take the time off then. I now wish he had, maybe he wouldn't have lost that job. He never was told why he was fired from the second one either.

[Sean]

Heck, if companies started behaving like that, we might not have any economic crises in the first place!

[Amanda]

Thank you for this article. I was one of those unlucky people who was fired while on my maternity leave. I was 3 weeks shy of my 1 yr mark to receive FMLA and yet my boss led me to believe I was receiving it(had me fill out paperwork and never told me it didn't go through) After working until the day before my son was due(and born on his due date) I gave her a doctors note putting me on maternity leave. 2 days before I was to return to work I received a letter from the corporation stating I was fired for being absent from work 3 or more consecutive days. I have since taken up my case with the Civil Rights Commission and won and am now pursuing this in a federal court. This all sounds crazy that in 2009 it happens but it does. I am so happy to see that my son and I could do this and come out ahead. I'd never trade him for the world. I will say too it happens in ALL industries. I worked as a teacher in a childcare center and it happened there..so even in the most "mother friendly" places it happens.

[Denise]

My sister-in-law is currently going through some problems with her work ever since she has become pregnant. She did IVF and missed a lot of work due to that. They did not give her a raise at Christmas because of it, even though they gave almost everyone else one, and they changed her from salary to hourly, which I am told is perfectly legal. Then she had a really rough pregnancy, her doctor told her her at 6m pregnant she couldn't be on her feet and that she needed a desk job. The company promised to find her other work, but did not come through. Her doctor ended up putting her on modified bed rest because of this. She ended up having to go on disability and leave work earlier. The only positive that has come from this story is that now that she is on EI her maternity leave doesn't kick in until the day her baby is born, and she does not plan on returning to that job, though she won't tell them that,
I know there are a lot of great companies out there that value their workers, but there are also a lot of skeezy ones that Skirt the law.