The confusing state of family-leave policies.

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Aug. 17 2010 10:03 AM

Yes, You Can Get Fired After Taking Maternity Leave

The confusing state of family-leave policies.

Illustration by Robert Neubecker.

Sandy Stephens got pregnant when she was working in housekeeping for a company known as Global NAPs Inc. in Massachusetts. Her supervisor at the small telecommunications firm had told her that she could take unpaid maternity leave longer than eight weeks if she gave birth by cesarean section. Stephens did wind up having a C-section, and so she stayed home for 11 weeks. Yet, when she returned to her job, she found she had been fired.

It's the kind of "misunderstanding" that takes place all the time. The postpartum deal is struck, the baby comes, and then—whoops!—human resources has no record of the agreement. The story often ends up with a confused, angry, and suddenly unemployed new mother quietly accepting her fate. In this case, though, Stephens decided to sue; and last week the Massachusetts Supreme Judicial Court handed her a decision that is a depressing, if not surprising, reminder of the sorry state of parental-leave policy in this country.

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According to the decision written by Judge Francis X. Spina, the Massachusetts Maternity Leave Law does not protect a worker's right to a leave of more than eight weeks. The state law, which has been on the books since 1972, requires private-sector companies with at least six employees to grant eight weeks of job protection to women who give birth to or adopt a child. But if an employee takes more than eight weeks—even if the employer verbally approved the leave—the maternity leave law no longer applies, according to the decision. Her only legal hope would be if she had gotten the promise in writing, in which case she could sue for breach of contract.

Even before this case, the question of how much time a worker is entitled to after having a baby is confusing and governed by technicalities. In theory, the law of the land is the Family and Medical Leave Act, which grants 12 weeks to workers, whether male or female, after the birth or adoption of a child. But FMLA does not apply to companies with fewer than 50 employees, or to employees who have worked fewer than 1,250 hours in the past year or have been employed for less than a year. Some states have passed their own "FMLA-fix" laws—six states and Washington, D.C., have lowered the number of employees a company has to have in order to be covered by the law—but the FMLA still applies to little more than half the workforce.

Most everyone else is out of luck, including, apparently, those who do not officially file for FMLA leave in writing. This may explain why Stephens chose to sue under the Massachusetts law, which doesn't require any specific filings, rather than the federal law, which usually trumps state law—and would have guaranteed Stephens 12 weeks of job protection. The written-filing requirement means that new parents in other states who don't remember to request FMLA leave in writing could also be fired for taking leave. In that case, they may have no legal recourse, since, unlike Massachusetts, most states don't have separate laws providing job-protected leave. (According to the National Partnership for Women and Families, only 16 states, including Massachusetts, have separate leave laws. With its eight weeks of unpaid maternity, though not paternity, leave for private-sector workers and up to a year for state employees, Massachusetts earned a C+ grade from the partnership, putting it in the top half of the class of states. Nineteen states got Fs.)

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