By now everyone should know there are both state and federal laws banning discrimination against certain classes of employees. For example, a tech firm was recently accused of posting a job notice seeking white candidates only. After an embarrassing backlash the posting was taken down. The firm later apologized and said the job was posted by a junior recruiter. The apology was later edited to say it was posted by an ex-recruiter. I don’t know whether the recruiter was an ex-recruiter before or after the discriminatory post. It could be either.
Applicants, employees and former employees are protected from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).
But what if an employee from a protected class is among those included in a major layoff? It could be a problem if the employer cannot demonstrate that a protected class was not targeted. This is an anecdote from National Public Radio (NPR):
Cat Fan was in bed last November, recovering from major abdominal surgery, when her phone started blowing up.
Facebook’s parent company, Meta, had just announced a first round of layoffs: 11,000 employees, about 13% of the company, would lose their jobs.
Fan, a mother of three, had been a recruiting manager for Meta for almost five years.
But in the midst of a medical leave, she suddenly found herself without a job. Her layoff notification came while she was still on pain medications, in and out of sleep.
Of the untold thousands of tech industry workers laid off in the last several months many were on medical leave, family, or maternity leave. Some assumed they were safe at least until they were able to go back to the office or that their severance would include the additional time they were scheduled to be on leave. It appears they were mistaken. Some laid-off former employees are trying to negotiate additional benefits to replace medical leave that was already approved. So far, they have been unsuccessful.
Google is indicating to ex-staffers, who got laid off while on maternity and medical leave, that they won’t get paid for all of their remaining time off, according to former employees and written correspondence shared with CNBC.
More than 100 former workers have organized a group they call “Laid off on Leave.” They’re asking executives to pay them for the weeks and months they were approved to take off before the job cuts were announced in January. Those who spoke with CNBC said they’ve been told they’ll only receive pay through their designated end date, along with standard severance.
It is legal to lay off people on medical leave, family leave, maternity leave (and on vacation) along with able-bodies workers who can hit the ground running.
“I was washing baby bottles while humming a damn Wiggles song stuck in my head … when I got the news,” McKenzie Gregory, an internal communications specialist at Salesforce, recently posted on LinkedIn. “I thought I was protected being on maternity leave … and obviously I was wrong.”
Indeed, there is nothing illegal about laying off an employee in the middle of a leave “provided there’s sufficient documentation that there’s a legitimate, non-retaliatory reason that’s based on the business,” says Arianna Mouré, a labor and employment attorney with Scarinci Hollenbeck.
Basically, you cannot lay off a pregnant woman or a man injured on the job claiming economic conditions required cutbacks if they were the only ones forced from their jobs. Similar, if you notice one person in the office taking a specialty drug and the scuttlebutt around the office is that they have an expensive chronic disease they better not be the only person laid off if all their performance reviews were exceptional up to that point. One way the tech companies are soothing the sting of layoffs is by providing up to six months of pay to those forced out of a job. That probably goes a long way to reducing hard feelings.