Episode 101: Can I Fire My New Employee (Did I Mention That She’s Pregnant)?

For the first episode of What the Hell Just Happened? Paul Edwards sits down with CEDR Solution Center Advisor Krystal Pruet-Lantz to discuss a common issue faced by employers – letting a new employee go. But there’s a twist! It turns out that this new employee is also pregnant, which means they’re in a protected class. This triggers a whole heap of additional considerations. Listen as Paul and Krystal analyze the risk associated with this particular predicament and hash out how to handle it in a safe and legally compliant way.
What The Hell Just Happened?
What The Hell Just Happened?
Episode 101: Can I Fire My New Employee (Did I Mention That She’s Pregnant)?
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Transcript
Paul: Hello. My name’s Paul Edwards, and welcome to the WTHJH podcast. You’re about to listen to an episode of “What the Hell Just Happened in HR?”. 

I’m an HR nerd who loves to talk about HR with just about anyone who will listen. So, during each podcast, we’re going to delve into the solutions for dealing with a real-life HR issue. Plus, occasionally, we’re going to share some big-company, HR-strategy ideas. 

Keep in mind that for every HR problem you solve, there are state, federal, and local laws that govern what we can and cannot do. And now, let’s get started.

Krystal: Hey, Paul, I have a quick…

Paul: Hey!

[Krystal laughs]

Krystal: I have a quick question for you.

Paul: Okay.

Krystal: So, I’ve got this new employee…

Paul: Okay.

Krystal: … alright? She’s still in her getting acquainted, period. Right. We have a 90 day getting acquainted, period. She’s been with us about a month. 

Paul: Okay. 

Krystal: She’s just not a good fit for our office culture. 

Paul: Right. 

Krystal: She just doesn’t really fit, right? 

Paul: Mm hmm. 

Krystal: And I think I just want to get rid of her. I think I just want to go ahead and separate now. I mean, can’t I just do that at will?

Paul: Well, okay. So, yeah. Yeah. So, pretty much because she’s early in. So I’m glad you called it a getting acquainted period and not a probationary period…

Krystal: Right.

Paul: …because “probationary” is a term of legal art, and it means something else. 

Krystal: Oh. Okay. 

Paul: And so if you don’t have a bunch of crazy disclaimers. And anyway.

[Krystal laughs]

So you want to stay away from the word probationary.

Krystal: Got it.

Paul: So she’s in her getting acquainted period. And she’s been there for how long?

Krystal: About a month.

Paul: So, less than a month. Okay, so there’s another principle.

Krystal: Mm hmm.

Paul: The longer someone works for you, the… the… what’s the word I’m looking for? The more liability that can be created. 

Krystal: Oh, okay. 

Paul: So, like, if you sue someone and they’ve been working, if someone suits you and you’ve had that employee working for you a year or two, the damages kind of reflect that.

Krystal: Oh, so it grows?

Paul: So, it kind of grows. 

Krystal: Yeah.

Paul: Now, that doesn’t mean that you can take a new employee and violate some obvious law and not worry about it and just say, “I’m an at-will employer and it doesn’t make a difference.” So that’s the thing with at-will is it’s really powerful. This is kind of a good place to use your at-will status.

Krystal: Oh, okay.

Paul: But the fact is you still want to look around to make sure that you’ve done everything right. And when I say you’ve done everything right, I mean, did you classify them properly? If you were, say, in New York, for example, did you give them their hiring letter? Because, you know, there’s like a fine per day up to $5,000 that caps for every employee that didn’t get their hiring letter.

Krystal: Oh. So there’s some considerations.

Paul: So there’s some considerations that you want to look at. And that’s one of the reasons why we exist, right? 

[Krystal laughs]

I mean, seriously.

Krystal: Right! That’s why I pay you. [laughs]

Paul: That’s why we get paid to do what we do because we know what those considerations are. 

Krystal: Right. 

Paul: So if you have an employee who’s only been with you a short amount of time, I understand they’re not a fit, and you kind of want to let them go. I think the sooner you do it, the better. And it is okay to tell someone that they’re not a fit.

Krystal: Okay. So let me ask you this, though. Like she’s pregnant. Would that play into this at all?

Paul: Well, yeah. Yeah. That’s like a really good curve. So she’s pregnant. I feel like I’m at Iron Chef right now for HR, and I don’t know what the ingredients are going to be. And then you’re like, well, the secret ingredient is…

Krystal: I just threw another one at you.

Paul: You just threw another one at me. Look, obviously, when an employee… you’ve thrown one of the most important protected statuses that someone can be in.

Krystal: Oh, really?

Paul: So, there are a lot of things that come into play when you tell me that. 

Krystal: Sure.

Paul: So it makes me back back up. And now I have a more clear picture of what’s going on with this employee. Look, I’m going to kind of run the gamut here.

Krystal: Okay.

Paul: I’m going to ask you a question. 

Krystal: Sure

Paul: Was she pregnant when I hired her? Did I know she was pregnant when I hired her?

Krystal: Well, she didn’t tell me, but I guess she told some other girl in the office, and then that girl told me.

Paul: And so I hired a pregnant woman.

Krystal: Yeah, I guess I did, didn’t I? Yeah.

Paul: Yeah, so if I hired a pregnant woman, I’m in a little bit better shape to let one go, because you can’t say I let her go because I found out she was pregnant. I knew she was pregnant before. So you remember, we want to be able to connect… we want to be able to disconnect.

Krystal: Oh, disconnect the dots.

Paul: We want to be able to disconnect the dots. 

Krystal: Okay.

Paul: The thing is, is she’s not a fit. But now let me ask you some more questions. 

Krystal: Yeah, go ahead. 

Paul: Okay, so you said that she’s not a fit. Why is she not a fit? Is it because she’s absent a lot? Is it because she takes a lot of breaks? What’s going on? How is she not a fit?

Krystal: Yeah. So, yeah, she has been absent a lot. I mean, not necessarily absent. She just comes in late.

Paul: She’s late all the time.

Krystal: She’s late all the time. And, you know, she constantly says she needs to have breaks, and I feel like she’s just not there.

Paul: Okay. So, look, objectively here, some of the things that you are describing could be related to this… what we’re going to call a temporary health condition. So now I got to back back up and I got to tell you, I don’t like your at-will status anymore. I don’t like it at all.

Krystal: Oh. Okay.

Paul: Because we have a complication here. I will tell you that, regardless of what her status or her protected status is. So we’re all in a protected status, but one of hers is lit up right now….

Krystal: Oh, okay. That’s a good way to put it.

Paul: Yeah. She’s… she’s preggers. 

[Krystal laughs]

So we can still hold someone in that protected status, and we should treat them the same as we would treat any other employee. Does that make sense?

Krystal: Okay. Yeah. So be consistent.

Paul: So you need to be consistent, but then there are these little areas in the law that say if someone is pregnant and they need more frequent breaks, if they need what we call an accommodation then we’ve got to jump in there and see if we can’t give them the accommodation. Which leads me to a whole nother podcast on the interactive process whereby we can show we did not fire her because she’s pregnant. We didn’t fire her because we couldn’t accommodate. We actually hired her when she was pregnant. We did accommodate every way we could. Here’s a record of our feedback…

Krystal: We went through a process.

Paul: We went through a process, and we can show that this is really related to job performance.

Krystal: Okay. Okay. So, you know, let me just back up. 

Paul: Mm hmm.

Krystal: I know you said you didn’t like my at-will status. Can you just tell me a little bit more about, like, what “at-will” means? Because I was thinking, right, “at-will” means I can go ahead and end this relationship, this employment relationship, for no reason. Am I a little off on my thinking?

Paul: Well, I mean, when we define at-will quickly we say that at-will means that you or the employee can end the relationship at any time for any reason, no reason, no cause, with or without notice. So that sounds like, “Wow, we can both get out of this.” The issue that we have here, though, is that there are exceptions to the at-will doctrine, and we’re talking about one of those exceptions. 

Krystal: Oh, okay.

Paul: There are many, many, many exceptions to the at-will doctrine. 

Krystal: Right.

Paul: And so if you come to me and tell me, “Hey, I don’t feel like I’m being paid overtime properly. I don’t think you’re calculating my hours right.” Well, you’re now in a protected status with me. And if I turn around and fire you shortly thereafter within proximity to that within a week or two, we don’t really know what it is, no one will tell us what it is.

Krystal: Optics though.

Paul: Yeah, but shortly thereafter, the argument can be made that I’m retaliating against you for letting me know that I wasn’t paying you properly And my at-will status right out the window at that point. 

Krystal: Okay. 

Paul: So, yeah, at-will is important. But it is not a bulletproof shield.

Krystal: It’s not a get out of jail free card, right?

Paul: Okay. Well… You said I didn’t have to give a reason. Who ever fired anyone for no reason at all? I mean, seriously.

Krystal: There’s always something.

Paul: How would you… if I put you on a stand somewhere, or I put… or an EEOC investigator, how would you answer me when I say, “What did you fire them for?” And you say, “No reason.” And I say, “Really? You fire people for no reason at all? What was the last not reason that you used?

[Krystal laughs]

Paul: But you know. 

Krystal: Right. 

Paul: It’s not… it’s not a great… it’s not a great defense. That’s why we like documentation, the interactive process, because then we can give a reason… 

Krystal: …and even show it. 

Paul: No one gets to make the reason up for me.

Krystal: Right.

Paul: So, I’d rather make the reason up and stick to it then to not give a reason and have you imagine what it is.

Krystal: Thanks. That clears some things up for me. I really appreciate it. 

Paul: We covered a lot of things there.

Krystal: We did!

Paul: We got into at-will employment. And we got into letting an employee go and her, you know, being in a protected status at the time. 

Krystal: Right. 

Paul: Yeah.

Krystal: Thank you.

Paul: Yeah, that was fun.

Krystal: Yeah, I thought so.

Voice Over: Thanks for joining us for this week’s episode of “What the Hell Just Happened?”. If you have an HR issue or a question you’d like us to discuss in this podcast, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join our private Facebook group, HR Base Camp, or visit HRBaseCamp.com.

Make sure to tune in next week. And remember, when you improve your workplace, you improve your life. 

This podcast is sponsored by CEDR HR Solutions. You’re a manager, not a lawyer. Don’t waste your valuable time researching employment laws and which HR policies are legal. Let CEDR HR Solutions take the burden off your shoulders. We believe that better workplaces make better lives, which means we strive to meet our members where they’re at and give them the tools and education they need to ensure their practices remain compliant and run as smoothly as possible.

We’ve got the expert knowledge you need whenever you need it, with a customized employee handbook made just for your office and unlimited support. 

Visit CEDRSolutions.com to learn more.

Jul 5, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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