Asked to resign when I give birth

I am 7 months pregnant and have been working at my current job for 3 months. Before becoming an employee, I worked here as a consultant for 1.5 years. HR is told me that I do not qualify for FMLA since I will not have been an "employee" for 12 months by the time I give birth. They are not counting my time as a consultant. They asked me to write a letter of resignation when I have the baby. I do not want to resign from my job and would like to return after taking leave. Do I have any rights?

2 answers  |  asked Jun 20, 2007 08:31 AM [EST]  |  applies to Pennsylvania

Answers (2)

Christopher Ezold
You may not be eligible for FMLA leave, but you may have a pregnancy discrimination claim.

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, you may not be eligible for FMLA leave, but you may have a pregnancy discrimination claim. The FMLA requires that you be an employee for a year prior to having any right to take FMLA leave. Although you were classified as a 'contractor,' you may have actually been an 'employee' for the purposes of the FMLA. I would need more information before I could make any determination on that issue.

Even if you do not qualify for FMLA leave, you have been told to resign due to pregnancy. That appears to be blatant pregnancy discrimination, which is illegal.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585

posted by Christopher Ezold  |  Jun 20, 2007 12:56 PM [EST]
Harold Goldner
FMLA definition of "Employee"

I cannot determine from your brief paragraph what the difference is between being a 'consultant' and being an 'employee' to your employer.

The Family and Medical Leave Act (FMLA) does not necessarily define 'employee' the way your employer does. Qualified 'employees' are eligible for up to 12 weeks unpaid leave for childbirth with a complete restoration to the position they held prior to childbirth if the employer is a qualified employer (more than 50 employees within a 75 mile radius).

If your employer does not have 50 employees, then it will not make a difference, because the FMLA does not apply. Note that this is under Pennsylvania law; some states have pregnancy leave statutes.

Your best bet, since I cannot give you real 'legal advice' via a web site, is to contact an employment lawyer and find out what your rights are.


posted by Harold Goldner  |  Jun 20, 2007 09:36 AM [EST]

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