In this virtual session, Daphne Delvaux a.k.a The Mamattorney, shares insight into critical rights that affect working moms. Check out Daphne’s deep dive into pregnancy discrimination, maternity leave, accommodations and more in the video below.
Daphne Delvaux a.k.a "The Mamattorney" is a senior trial attorney in San Diego where she represents employees in cases against their employers. Throughout the years, she has achieved multiple successful jury verdicts as well as numerous settlements over seven figures. For an equal pay case she won, she was awarded the Outstanding Trial Lawyer Award. Daphne is the mother of a toddler and a baby on the way, and since becoming a mother she has focused her career on maternal rights cases, including pregnancy discrimination litigation, the enforcement of maternity leave regulations, and breastfeeding accommodations.
Transcription
- Pregnancy Discrimination
- Maternity Leave
- Accommodations
- Getting Your Job Back After Maternity Leave
- Covid-Specific Rights
- Communication Rules with Management
- Q&A
0:00 Colleen Curtis: Alright, welcome everyone. We are just getting set up here. The community team at The Mom Project welcomes you for another installment of Unity Hour, a series designed to keep us moving together while apart, and it seems like we are going to keep with this, so we are still apart. My name is Colleenn Curtis, Chief Community Officer at The Mom Project. My teammate Katie is womaning the YouTube chat. So if you are joining us live today, she will be in there if you have any questions about The Mom Project or the programs we're gonna mention. While we won't be able to take specific legal questions today for our “Mamattorney,” we encourage you to connect in the chat if you'd like.
So, Tiffany is also here as my co-host, and she's going to give us a quick update on some exciting new community programs in just a few minutes. As a reminder, the entire session will be recorded and can be accessed via the YouTube channel after the live session concludes. You'll also receive an email with a link and follow-up items if you RSVP’d to the session, so we've got you covered, we know things come up, dogs need to go out, kids need e-learning. So if you do have to jump off, don't worry, we'll make sure you get the replay.
Before we get into today's session I do wanna talk about our latest program at The Mom Project called RISE. RISE is a scholarship program committed to accelerating equity for moms and women of color by providing access to 100%-funded up-skilling certifications designed to help them break into tech.
So applications for our first certification cohort have just opened, so if you're interested in learning more and applying or know someone who might be, please visit work.themomproject.com/RISE. We will also drop that in the chat. Please do that ASAP. We are reviewing applications right now and are hoping to kick off our cohort November 1st. Don't worry if you're a little bit late. We are gonna kick off a cohort every month. So really looking forward to all the great things we can do with RISE. I'm gonna hand it off to Tiffany here as we've actually got quite a few things cooking in the community kitchen at The Mom Project we wanted to let you know about. and I will pass it over to her.
2:07 Tiffany Nieslanik: Hey everyone. So I am Tiffany Nieslanik, I'm part of the community team here at The Mom Project, and I have the distinct pleasure working on so many of our wonderful projects, including RALLY, which if you haven't heard of it, it's a peer-to-peer community-driven program where we help moms and mom-advocates connect one-on-one with each other to both give and get advice in your professional journey. We're also testing a really exciting expansion of Rally, that's called Rally Job Club.
Job Club is a group of people that are going to both give and get job search support and advice from one another, whether that means reviewing resumes, finding an accountability partner, interview best practices, or more of those kinds of things that you use while you're doing your job search. These are small curated groups of women that are helping each other pursue their meaningful work and cheering each other on along the way with the help of a professional coach who is acting as sort of a guide for the group, helping them maintain their accountability, and if they have any questions along the way, providing support for that. So it's our hope to launch this to the community at large in early 2021, so stay tuned for more information on that, and a big shout out to the people who are helping us do the beta test that's currently going on.
3:22 Tiffany Nieslanik: We also still have some spaces in our Unity program, which has been happening for many months since Covid hit us, so if you or someone you know is a job seeker that's been impacted by Covid-19 hardships, please feel free to apply to be matched with one of our coaches for a one-hour pro-bono coaching session. And all these things I'm talking about if there's links that appropriately we’ll be dropping them into the chat if they're not there, so you can find that there.
And then finally, we are working hard on a community space that is going to allow all of you to connect, to share experiences, support and knowledge on both career and family, so the first feature in that is called Lounges, and I know some of you are already beta testing it for us. So thanks again for being early birds in helping us shape the future of communication and support within our community. And if you are interested in joining, we can drop a link to the beta access request form in the chat, so just click it and you can apply that way. So, lots of announcements, lots of exciting things happening.
4:20 Tiffany Nieslanik: So I'm gonna move on to today's topic, which we've received so many questions in the past around mother's rights at work: How can I detect discrimination, how can I frame communication with management during a conflict, what kind of accommodations should I request before, during, after maternity leave? And recently, what are Covid-specific legal rights and protections? We may not be the experts in this area, but our guest this week is someone who is. So I am thrilled to introduce you to Daphne Delvaux a.k.a the “Mamattorney,” who is a senior trial attorney in San Diego, where she represents employees in cases against their employers.
Throughout the year, she has achieved multiple successful jury verdicts as well as numerous settlements over seven figures. For an equal pay case she won, she was awarded the Outstanding Trial Lawyer award. Daphne is the mother of a toddler and a baby on the way, and since becoming a mother, she has focused her career on maternal rights cases including pregnancy discrimination litigation, the enforcement of maternity leave regulations and breastfeeding accommodations. As a working mom herself, Daphne is no stranger to the challenges women face in the workplace. We received many questions from our community today, and legally Daphne can only answer questions generally as legal issues do vary from state to state, we'll try our best to get to some of your questions today. But if you RSVP’d, you'll be getting some extra resources from the session. I'll turn it over to you, Daphne.
5:42 Daphne Delvaux: Well, thank you so much, I'm so happy to be here, and thank you for all of you for making the time. I know you're busy, and this stuff is complicated. The law is complicated and it's confusing, and it's so important that we educate ourselves and each other 'cause no one else is going to do it. Unfortunately, we don't really get taught our rights, and our employers may not even really know our rights or they may not want us to know. So, often it falls on us to really understand what our rights are, and this takes a lot of emotional labor. When you're pregnant or postpartum and you're trying to figure out what you're entitled to and you're on these websites, and it's very confusing. It's not easy. And I just am very happy that you're here willing to educate yourself and also help educate each other. This is going to be a little bit of law school for moms. It's going to be a lot of information in a short period of time. We will be sending you slides with a summary of today's presentation, and if you need more detail, you can always go to my website. But you may feel like it's a lot and that's because it’s the law and your rights so it's a lot of information and it's very important.
6:48 Daphne Delvaux: A little disclaimer, I'm a lawyer, but I'm not your lawyer. So even though I'll be providing general legal education, if you need specific legal advice on a scenario that's happening at your workplace, you need to talk to a lawyer who's licensed in your specific state. I'm a California attorney, and I only represent people in California. So the structure of today's presentation will be first talking about rights during pregnancy, then right straight maternity leave, and then rights when you've returned from maternity leave, including accommodations. And then I'm also going to talk about Covid-specific rights - some recent rights about school closures as well as safety issues at work. So we'll first tackle pregnancy discrimination.
Pregnancy Discrimination
7:37 Daphne Delvaux: Pregnancy discrimination is something that generally everyone knows not to discriminate against pregnant women, however, it still happens all the time. What does pregnancy discrimination look like? You know that you're experiencing pregnancy discrimination if you're treated worse after you give notice of pregnancy than before you give notice of pregnancy. If you feel a stark difference in treatment of you: you're given less interesting work, you're suddenly put on a different work schedule, you're not included in important meetings that would be pertinent to your career advancement, you're receiving less bonus payout, you're not invited to be a speaker on things you used to be invited to, and those are all examples of discriminatory conduct. It has to be because of your pregnancy, however, employers will never tell you that.
8:34 Daphne Delvaux: And employers will never tell people anything about their true motivations. They're not gonna tell you, you know, we're gonna demote you to this administrative job because you're pregnant, so that's better for us. Instead, they're gonna come up with some excuses. Often it’s performance or a violation of a policy, and then you wanna look at, is this true? Am I really doing a worse job than everyone around me? What we see a lot with pregnant women is that they are treated differently and that they're subjected, for example, to a performance improvement plan or to write-ups, and everyone else is doing the same job and may even be performing worse.
And that's really the way that you can detect pregnancy discrimination. When you feel singled out and targeted and everyone around you is not pregnant and you're the only one held to a different standard. Another way you can detect pregnancy discrimination is if there's really suspect timing on certain events. So let's say that you announced your pregnancy last week, and then today you receive a reprimand on a project that wasn't completed in April. That makes no sense. The connection between those two is going to be your pregnancy, otherwise they would have done that in April.
9:53 Daphne Delvaux: So you wanna look at the timing. A lot of proving discrimination is in the circumstantial evidence, and really looking at what's happening to other people around you, and if they're treated better than you. You wanna keep in mind that pregnancy discrimination is not always about the baby. Generally managers don't dislike babies. It is about the fact that they fear you're going to be leaving the workplace, and therefore they're already preparing for your exit by giving you less opportunities. And there is this bias and assumption that mothers when they return from work are less committed, less available, and just less dedicated to the work, and that's where pregnancy discrimination comes from.
So try not to take it personally. And even though your manager may be congratulating you on your pregnancy, they are thinking, Oh no, what's going to happen to the organization? So how do we prevent pregnancy discrimination? I tell my clients to give early notice of their pregnancy. I know there's kind of this untold rule that you have to wait until 12 weeks, and this is a personal decision, but from an employment law perspective, once you give notice of your pregnancy, you are protected from discrimination. However, if you are late to work because of morning sickness and they don't know and you're terminated for being late, you are not protected under the law because they didn't know, so that's why it helps you to give notice of your pregnancy so that you're in that protective class as a pregnant woman.
11:35 Daphne Delvaux: Another thing you wanna do to prevent pregnancy discrimination is give a lot of commitment that you will return after your maternity leave, you wanna show that you're devoted to the job that you love your job, that you tend to be a working mother, that you will cooperate in the transition, that you will help train your replacement. All of these things to put your employer at ease that you will not leave the job.
Often pregnancy discrimination happens not with your first baby, but with your second or your third, because the employer then feels like, you know, we kind of worked with you that first time, but how many more babies are gonna happen? How many more times do we need to do this? And you just wanna work with them and say again, thank you so much, I'm going to be assisting during the transition of pregnancy, and it is you're right to remain employed throughout your maternity leave, so just keep in mind your employer is often worried you will not return, so anything you can do to appease that would be helpful for you not to be experiencing discrimination.
12:36 Daphne Delvaux: But when it happens, What do we do? When you feel like, Okay, I'm clearly treated differently since I gave my notice of pregnancy. Everything's been so much harder. Everyone's really standoffish, my boss is being kind of rude to me. And no one, you're not outright terminated, but everything's getting a little bit more difficult. What do you do? Well, the most important thing you do is document, document, document.
You wanna memorialize all conversations you have with upper management or with human resources. Often managers like to keep these conversations not in writing, so you really have to, after a conversation, email them like, Hey, this is what happened during this conversation, you wanna start preparing yourself and make copies of all the ways that you're doing a good job, because when you are fired, sometimes you're cut off from your email from your work email or from your records. And when you really feel like it amounts to discrimination, the most important thing to do is record it in writing. And this feels really scary. The thing with discrimination is that you have to call it like it is, if you're going to complain about feeling like... If you're going to complain about someone being rude to you, that is actually not a complaint of illegal common conduct, and you could be terminated.
14:04 Daphne Delvaux: But if you complain about discrimination or about someone being rude to you because of your pregnancy, that is a complaint about illegal conduct, and then you would be protected from retaliation. So, often, people don't wanna be so specific about what's happening to them, but by doing that they’re actually putting their job more at risk than by calling it like it is. So, it is scary, but not doing it may actually cost you your job. Well trained companies when they see a written complaint of illegal conduct like discrimination, they will take that seriously and they will be a little bit more cautious. This is not a guarantee, there's a lot of companies that don't follow these rules, but that's kind of the general guideline. Make sure to keep notes, you can email yourself so you have a timestamp. Every time something happens that feels out of the ordinary. Alright, so that's everything on pregnancy discrimination.
Maternity Leave
15:03 Daphne Delvaux: Now we're going to talk about maternity leave. Maternity leave is very location-specific, so it's hard for me to give you a specific amount of months that you can take time off. In California, which is a labor progressive state, women can take up to seven months under certain conditions and partners, most partners can take 12 weeks. That is not the case everywhere, so you wanna first make sure that you educate yourself on your state rights, and not only state rights, but cities will often supplement maternity leave. Such as San Francisco, they provide additional funding and time off for maternity and paternity leave.
15:42 Daphne Delvaux: So where you live will dictate how much time that you can take. But what I can give you is some general guidance on maternity leave. When you ask your employer about maternity leave policies, they will often give you the minimum, they will often not give you the full scope of your maternity leave rights. Why? Because it really is not in their best interest. So you often have to ask for your maximum entitlement under the law, and you have to use a specific legislation...the specific words of the loss, to request the maternity leave that you're entitled to...
So that is very complicated because when you look at your policy or the handbook, it may actually not give you the amount of time that you're entitled to under the law. Once you figure out how much time you're entitled to and you have set that plan, you may not be asked to work during your leave, that would be considered interference with your leave, this is a general rule. And leave may also not be denied even if it's a hardship on the employer. So if you are asking for your maternity leave and you're entitled to under the law to receive it, an employer may not say, You know, I can't give you 12 weeks, but I can give you eight. That's not up to them to decide.
17:05 Daphne Delvaux: The law gives you specific amounts of weeks off and you're entitled to receive all of those weeks and not a day less. Then, when you return to work, that's when usually a lot of issues with mothers will occur. Often during pregnancy, the employers are a little careful, but then when the mom returns to work, a lot of employers then will kind of start discriminating against the mothers... Sorry, I have to sometimes take a breath because I have heartburn, 'cause my friend there look...here he is!
📖 Read more: How to Plan for Your Maternity Leave
Accommodations
17:46 Daphne Delvaux: Anyway, accommodations. Let’s talk about accommodations. This is a question I get a lot and it’s super... It's a very grey area within the law. So, accommodations, for example, for morning sickness for high risk pregnancy, and then accommodations after you return to work, some women unfortunately develop postpartum depression and need some more time. Sometimes the baby doesn't take the bottle, there's a lot of things that can happen during that transition of motherhood that we don't anticipate, and then the question is, to what extent do to our employers need to work with us and help us stay employed, or can we just say, Oh no, you know, This is not...That's not gonna work for the organization.
18:30 Daphne Delvaux: So that's what the accommodation process is about. Accommodations, not everyone will have these rights, you would in labor progressive states like California and New York. On the federal level, there is a law pending right now, the Pregnancy Combination Fairness Act, it passed the House...the Senate hasn’t voted yet, we expect them to do so after the election. If you're not covered, you can still sometimes use the ADA, but you need to be disabled and the difference between the two is that pregnancy under federal law is not always considered a disability. So it needs to be a high-risk pregnancy or something like postpartum depression.
So again, you wanna look at your specific rules where you live. You can assume in California or New York that you would be receiving all of the rights. So, accommodations. What are examples of accommodations? Bedrest, remote work, working from home, additional breaks, the flexibility in your schedule, so the allowance to violate attendance policies or the permission to be late, a chair... those that are all examples of accommodations. And extended maternity leave, so let's say you need four more weeks, that's an example of an accommodation.
19:54 Daphne Delvaux: Unlike a maternity leave, where it has to be given to you when you're entitled to it, accommodations may at times be denied. And this accommodation process involves an interaction between the employer and the employee and the doctor on what would be reasonable under the situation. So it can give you specific answers as to, This is allowed, this is not allowed. However, the employer does have to look at, can we accommodate you, is this a significant burden on the organization, and can you continue to do your job with a modification to your job, and they really have to go out of their way and try it really hard.
The doctor gets involved because the doctor has to write what you're able to do. So you actually sometimes need to advocate with your doctor, 'cause your doctor may say like, Oh, I need to write you out of work completely, and then you're gonna lose your job. And then you have to tell your doctor, can’t we just do a four-week additional maternity leave, can we try there? So you have to work with your doctor to make sure that you save your job, this is a very difficult scenario and situation for a lot of my clients, it's very stressful, they're in a really vulnerable position, so it's super important that you seek support during that time, that you have allies and people advocating for you.
Other accommodations are part-time work, reduced work, job sharing, and then this year, tele-work was the most common accommodation, so someone who has a high-risk pregnancy or someone who has immunodeficiencies could request a tele-work combination, and especially if this was already done through the pandemic, an employer really can't say no to that recently, they may not like it, but if the work can be done from home, you should be allowed to work from home, again, this only works if you have a doctor confirming that that's what you need, you can’t decide this on your own, you need medical approval for an accommodation.
Pumping is kind of a separate accommodation, there's usually separate rules and rights about that. The rule with pumping is generally every time that you should be given reasonable pump breaks. In California the rules is every time you need to pump, which is up to you, you should be given a pump break. So it's again, going to be location-specific, but generally, everyone's going to have some pumping rights.
22:20 Daphne Delvaux: The pumping time needs to be protected, however, they don't have to pay you during the time, and unfortunately, they still can ask you to do your job, so even though you're pumping, it is not a reason not to continue doing your job. So you have to make sure that you continue doing your job, even though you're pumping, which may mean working at night a little bit more, but it is one of those things that actually cannot be denied. You also need to be provided a space that's safe, that's clean. It can’t be a bathroom. They can't send you to the bathroom. Very important that you know that. And there has to be access to a lock. So this cannot be a public space. This cannot be like the break room where everyone's in and out. You need to be given your own private space. If you have your own office, that would be enough. If it's like a supply closet, they don't have to make it fancy, but it does have to be a private space that can be locked.
Getting your job back after maternity leave
23:26 Daphne Delvaux: Let's talk now about the right that you have after maternity leave to receive your job back. There's a lot of confusion about this. When you return from a maternity leave that you're entitled to under the law, you are entitled to your job or a similar job. This is only true if you did not surpass the leave that you were entitled to. So if your leave entitlement was 12 weeks and you were out four months, they could technically deny you your job if you did not return by any time that your leave lapsed. So, same or a similar job, what does that mean? So your same job has to be returned to you or a similar job.
A similar job has to be virtually identical in terms of pay, responsibilities, location, and schedule, so if you are a day-type shifts worker, they cannot suddenly put you on a night-time shift. If you were working in your hometown, they cannot suddenly send you to the next town. If you were receiving full-time pay, they can't suddenly give you a part-time job. It has to be a virtually identical job. This is where a lot of issues occur, because often the employer is kind of secretly trying to replace the worker, the mom, sometimes they get used to the replacement, sometimes they realize the job is not needed, and they may tell women, we don't really need you back, your job is not needed.
25:01 Daphne Delvaux: And in that situation, you really wanna look into that and ask some questions. If your job is being done by someone else, that's illegal. You're being replaced, you need to be given your job back. So your job has to be returned from the temp, from the replacement, to you. If your job disappeared for reasons unrelated to your leave, so if your job disappeared as part of a department-wide restructuring or lay-off, that would probably be legal. So if you're one of many, then there's usually nothing you can do, but if you are the only one who's without a job, that would be extremely suspect, and a lot of employers try to get rid of moms while they are on leave because they don't wanna deal with the leave administration anymore, and they just kind of come up with some sort of excuse. So if you're terminated while on leave or furloughed even, you definitely wanna ask some questions.
COVID-specific rights
26:02 Daphne Delvaux: So now we're going to talk about Covid-specific rights that you have. So this, everything that I just discussed is general legal education, these are rights and rules that already existed and that continue to exist. So you didn't lose any rights this year, no employers were given any sort of exemptions to violate employment law. Everything that was in existence was already in existence and continues to be. Covid specific rights. There are some new rights you wanna be aware of. So the first one is the safety rules. So, can I stay home if I don't feel safe going to work? Generally, no. But you can complain and report that you feel unsafe, and then you have... You may not be retaliated against for making a safety complaint. But a lot of people call me and say, I just don't wanna go to work, I don't feel safe. And unfortunately, that's not a decision that we're allowed to make on our own.
However, if you do have the condition, a disability, then you can go through your doctor and go through that accommodation process. If you are a high risk for COVID and your doctor thinks that is best for you to stay home, then you can ask for an accommodation to stay home and work from home, and that's the accommodation process that we just discussed. There's no general right to stay home and work from home because you feel like that's safer for you. Let's now talk about the Families First Coronavirus Response Act.
27:45 Daphne Delvaux: This is a new law that was passed this year in March. And it was kind of my big mission this year to make sure everyone knows about it. We’re now almost at the end of the year. Unfortunately, it's lapsing soon. This law expires by the end of the year. This is a temporary law that gives people a partially-paid leave of absence for six reasons, including school closures. So when the school is closed or your child's care is unavailable due to the pandemic, you may be eligible to take a leave of absence. This is the Families First Coronavirus Response Act. I'm not going to go into it in much depth, but the materials you'll receive will have a lot of information on this law. You can take the leave if you have Coronavirus, if you're caring for someone with Coronavirus and if your children's school is closed. The school has to be closed for reasons caused by the pandemic. If you just didn't sign up on time, that is not a reason to take a leave, you can also take a leave if the school is only open virtually.
So if you have to help your children with homeschooling assignments, you can still take the leave even though they may be for hours at a time, they may be occupied by their lessons. The law still provides that you're expected to attend to their needs, and you do not need to work. The law expires again by the end of the year. You're entitled to 12 weeks, so if you request it now you can still take about two months of it, but not everyone is eligible, unfortunately.
29:23 Daphne Delvaux: Everyone working for a public entity will be eligible and then all employees of private corporations with 500 employees or less. So, largest corporations are unfortunately excluded from this law, which was some really savvy lobbying by the business lobby, but it's excluding a lot of parents and in those scenarios often parents have nothing, no other option other than to quit their jobs. But if you have kids at home and you're really struggling to do your job, you really wanna look into this law because if you're unable to do your job, you can still be terminated. However, if you are on a protected leave of absence, at least your job is secure. What's really important about this law, the FFCRA, is that it is not a maternity leave.
So, this is not a woman-specific law. A lot of the rights I discussed are only for women, 'cause it's related to either pregnancy, birth, pumping. This law is for all parents, all parents can use it. Your partner can use it, and you can actually, if you're both eligible, you can both use it in a way that you're both still working by both taking it part-time, which is an option if your employer agrees. So for example, mom works from 9-12, and then dad works 12 to 3, and then the rest of the time the kids are with the other parents, so you can really use this creatively to try to stay committed to your organization, 'cause sometimes taking a full leave of absence can be a little scary. So definitely look into this law if you're eligible, if you have kids at home, and make sure that you protect your identity and your job.
Communication rules with management
31:20 Daphne Delvaux: Alright. Now, I'm gonna go through a few general communication rules with management. So, when you're experiencing friction with management, because they may need you to be at a certain place and you're unable to do that due to a doctor's appointment or prenatal appointment or you're expected to speak at a certain event, but it’s during your maternity leave but it’s really counting on you, or you come back to work and suddenly your workload is double. So when you're experiencing some sort of friction with your employer, here is my advice for what to do. So the first thing that you wanna do is educate yourself, you can take comfort in knowing that the law is on your side. Sometimes when you feel alone against a large well-resourced organization, it can be really scary and you can feel really vulnerable. But the law often protects you as the employee and not the employer. So definitely make sure that you know your rights.
32:40 Daphne Delvaux: And what does that do? It gives you courage and it gives you a road map and lets you know, okay, these are my rights, this is what my employer has to provide, and this is what I can ask for. Secondly, you need to educate your employer. So again, you cannot assume that your employer is giving you correct information about the law. First of all, it's very complicated and it changes all the time, so even though someone like me... I'm always on top of the law, we can't really expect that of every business owner. So a lot of HR professionals really lack the knowledge they need to really implement employment law, and sometimes they're so overwhelmed to kinda keep up with all the new developments.
So then it's often up to you to go into a meeting armed with legal information, and that may involve bringing the actual law. So bringing a copy of the law. You can print out the FFCRA and you can highlight the portion of eligibility and show them that you are eligible for this law, and you would think that shouldn't be my job, but unfortunately, a lot of times it is. So when you're really educating your employer, you're kind of putting the employer in a position where they have to say yes.
33:53 Daphne Delvaux: But make sure you are framing your request. I generally tell my clients not to be too antagonistic and can say, Oh, I am entitled to this, you need to give me that, you need to give me this. You can say, I really enjoyed working here, I just learned about this new law... Maybe we can talk about it. I think it would really help the women in your workplace, it would promote retention. I don't think women will leave, maybe we can all have a meeting about it.
So try to be collaborative instead of just marching in and demanding things, which often doesn't turn out well, they may give it to you, but then it will cost animosity for the rest of your career there. And you wanna be proactive and say like, Hey, I've created this plan, here's all the benefits. What do you think? Should we try it? Let's give it a test run. Let's do it for a temporary period of time let’s do it for two weeks and then we can reassess. So you can kind of become like the leader in your organization on women's rights, and explain to the employer that being good to women really helps them, as a lot of the companies that I've filed actions against know it is really bad for their reputation when I get involved, and those are things that they need to be cognizant of in terms of their visibility and attracting the customers they want.
35:13 Daphne Delvaux: Make sure to seek allies. This can feel really scary. So it's always better when you have a collective request, when you can go in with a group and ask for something, as opposed to just being on your own. When you can go in with other women or other parents and ask for something collectively that is gonna be more likely to be granted. And then in case of a breakdown, talk to someone... So, if you get fired, God forbid, or you know something happens with your job...First of all, validate that this is an extremely stressful scenario. I've had clients who were fired a week before their due date or shortly after they have their babies, and this is when you need your employer’s support the most.
Often you rely on their healthcare plan and the income and then now you have to find another job with a new baby...So it's just so hard. So I think the first thing I urge you to do, is not even to reach out to a lawyer, but to reach out to a therapist or a counselor, definitely your community, your support group, because your bonding experience can really be tainted by a termination when it happens around the same time. A lot of my clients develop some sort of depression or anxiety, 'cause they feel like they're kind of mourning that experience that they thought would be joyful, and now they're on Indeed.com trying to find or trying to look for a new job, doing interviews five days postpartum.
36:39 Daphne Delvaux: So, just really validate that for yourself that this is an emotional robbery of a beautiful time. So if you feel really overwhelmed, it's not in your head, that's normal, that’s a normal reaction to you an abnormal thing happening to you. So find someone to support you and then when you do feel like, I wanna take legal action, here's my advice for looking for a lawyer... Again, I’m a California lawyer, you can reach out to me. I do have a network with other lawyers I know throughout the country who practice law like I do with the same values, with the same kind of compassion-oriented approach. And you wanna just make sure you find someone who's not gonna charge you a lot, because lawyers like me actually usually charge through a contingency system, which is an option we provide when someone can't afford a lawyer.
And you wanna look at their website and see if they actually have experience in these women's rights cases and see if they have done actual work for women, 'cause there's a lot of employment lawyers who will just kinda do contract law and then pretend to know discrimination, but this is a very niche category within employment law that you need years and years of training to do, and you need to know how to litigate and do these trials and prepare your case well. So make sure to do your research, don’t just accept any referral that you get from your neighbor, really look up and talk to a couple of people and make sure you find someone that you feel comfortable talking to, 'cause you'll be talking to that lawyer a lot.
38:11 Daphne Delvaux: I think that's it for the presentation. I know there are a couple of questions. If this was a lot, it was intended to be... My presentations are very packed, 'cause I want you to know all of this, and I want you to observe it and then spread it and then tell all of your friends, because my mission is to really coach women on their rights so that they can protect both their health, their sanity, and their time with their kids and their career. And it is possible, and the way we do that is by using the law as a tool. So thank you so much. Let me know what the questions are.
Q&A
38:44 Colleen Curtis: Hi, thank you so much, I am so impressed at your ability to speak that long with heartburn, and also I remember being at that stage of pregnancy and you don’t get enough oxygen down so it’s hard to try!
38:57 Colleen Curtis: So, thank you. We're so grateful for you being here and for all of your fortitude while being pregnant. So we did have a couple of questions come through, one was just to follow up to something that you were saying that I do think you'll be able to answer and so I just wanted to... Someone had asked, How long is your job guaranteed after you return from leave? Is that something you feel like you can answer?
39:20 Daphne Delvaux: Yeah, yeah, so there's no real like... I can't tell you one month, two month, definitely within the couple of weeks after you return to work. If you were terminated within a couple of weeks of returning to work, I would look into that. I would be asking for... I would be asking for your evidence, and I would be talking to you. If it's a year later, there's no way we can tie that. So I represent clients who are terminated because they took maternity leave, which is illegal, but the gap has to be kind of... Short. So usually, for my clients it’s within a three, four-month window. If they're terminated over six months later, the employer has so much more material to say, no, it was not their leave, it was this or this or that.
40:16 Daphne Delvaux: However, sometimes employers are savvy and they'll wait it out a little bit, and then they... They’ll serve you with a pink slip. And if the company is doing really well and you're doing your job well, and the company is expanding and growing, and you're the only ones terminated and you're the one who just took a leave in the last year, that's probably gonna be the reason... So that's again something I would look into. So it depends a lot on the factors of your specific job, but if you feel like it's fishy, it usually is. So if you feel like this is connected somehow, it usually is
40:54 Colleen Curtis: Got it. Okay, so this is sort of an opinion, but knowing that you work with a lot of women and in these exact circumstances, we know you had given the advice earlier on, you should tell your employer as early as possible because then you're protected from that point on that they've been made aware of your pregnancy, so this is an opinion question, but what do you recommend to expecting moms who are also in an active interview process, would you disclose after the offer or before accepting?
41:27 Daphne Delvaux: Yeah, I get this one a lot and it is tricky. I will not... I'll tell you that it's a tough one for everyone. Because here's the thing, employers may not legally deny you a job because of pregnancy. So they may not... Let's say you show up for an interview, you have your baby bump, and they're like, Oh, that doesn't work for us, that is illegal. However, then they're never gonna tell you that. They're gonna be polite and they're gonna interview for your job, and then they're gonna tell you that they went with the man because he had technical experience or whatever.
So, I actually tell a lot of women to wait until the onboarding process. But don't wait too long. Because let's say you announce and you've been there for a while and you announce months later and they know that you knew and didn't say that, that's also gonna cause friction, maybe not at that moment, but maybe a year later, they're gonna say, like you know, we really don’t think that was fair. But once you're onboarded and then you announce, your job is secure. And they know not to terminate you at that time. But I definitely wouldn't bring it up during the actual interviewing process.
42:42 Colleen Curtis: Got it.
42:43 Daphne Delvaux: I would then say during the onboarding, during the onboarding process I would say, Hey I just found out I’m pregnant.
42:49 Colleen Curtis: That's great. Okay. As someone who interviewed while pregnant... Very, very visibly pregnant. It is. It’s a very tough situation to navigate. So, that's really helpful to have that advice. I'm gonna hand it off to Tiffany, we've got a couple more questions.
43:04 Tiffany Nieslanik: Just really quickly piggy-backing, I think off of the one that you just answered, somebody had also asked if you do need accommodations post-maternity leave, when would be the best time to bring it up? It sounds like maybe…
43:16 Daphne Delvaux: As soon as possible. So, the accommodation process takes time. It often takes a couple of weeks, so as soon as you know of the condition and the accommodations you need, you wanna go to your doctor right away. The problem is. that often with these medical notes it takes a long time, and that's where there is frustration, on behalf of both the employee and the employer, 'cause they really need the doctor’s note to understand what the restrictions are under your health condition, and often there's... The employer will need more information. I know a lot of my clients feel like that’s kind of a violation of their privacy.
Unfortunately, you kind have to cooperate and give them the information they need to understand your restrictions, so that they know how to accommodate your job. So this is a bit of a situation where your employer will probably know more about you than you would like to. They are generally expected to keep that information private within management and not share that with other co-workers, but with accommodations, I would advise to give notice of that as soon as you can.
44:21 Tiffany Nieslanik: And then one more sort of in the same vain, can you talk a little bit about if a company did rescind an offer after you've disclosed you're pregnant during the interview process?
44:32 Daphne Delvaux: Um, so I would... Some information I would need is how many... So if it's rescinded immediately thereafter, that would be considered a failure to hire on the basis of pregnancy. And that's something you would wanna discuss with an attorney. However, if it's rescinded for another, let's say they were checking your credentials or they were doing a background check and you don't qualify for something...it's possible that that's the reason. Or it's possible, it's both. And unfortunately, we have to be able to prove that it's a pregnancy and not the other thing, we have to disprove the other thing... So this is gonna be also how many people were interviewed, how many people were retained, or were you really close and then you announce your pregnant and the next day you lose out on the job, that would be a very obvious situation for me...
45:33 Colleen Curtis: Cool, you want me to jump in? We’ve got some more that I think... I think you'll be okay to the answer, but if not, we can find some resources for folks as well. So we have someone in the chat asking, I'm at the other end of the spectrum, menopause is impacting my executive function, I've been told I'm not taking enough strategic action. Schools are closed, my mom's in the hospital, what do I do and sort of what are my legal protections?
45:58 Daphne Delvaux: So, in terms of menopause, again, that’s something you wanna go to your doctor first and see if you can get some sort of accommodations. If there's comments made about menopause, that can also be a gender discrimination issue, if your employer knows that and they're like, Oh... They're making kind of discriminatory, biased comments that can be a gender discrimination situation, if your mother is in the hospital and you have kids at home, so if your childcare is unavailable, you wanna look into that Family's First Coronavirus Response Act leave of absence. If you are... If you have a condition that can be accommodated from home again, work with your doctor to see if you can continue tele-working while the kids are working, while the kids are attending school and classes.
46:46 Colleen Curtis: Got it. Cool. Let's see, sorry, I'm trying to sift through these. Oh, sorry, Tiff go ahead.
46:53 Tiffany Nieslanik: I was just gonna say, we can hop back to sort of a Covid-related question as well, because one of the questions that came in was just being considered high risk for Covid. Are there any special accommodations that you're able to request from your workplace that they have to accommodate or would you be fired just for being high risk for Covid?
47:14 Daphne Delvaux: No, you cannot be fired for being high risk for Covid, that would be a disability-related discrimination. If you have Covid, they have to send you home until you get better, you can't be fired for having Covid or being high risk, that would be a disability discrimination situation. If you personally have concerns about being high risk, then you have to go through your doctor. Doctors right now are kind of all over the place, there's no consistency on what they're doing with workers, especially pregnant workers who wanna work from home. Some doctors are writing the notes easily, telling the employer that the worker needs to work from home. And a lot of doctors are saying we don't have enough evidence that you can't work at the workplace, So you maybe need to change doctors if that's the situation, but working with your doctor, when you wanna continue working from home is always the first thing you need to do.
48:15 Colleen Curtis: That's great. I wanna make sure we get one in before we wrap up, but we might have a couple more... So I know a lot of the questions we got prior to the session, and I know we were talking earlier about how you get DMs every day about really personal legal-specific situations, are there resources or what's your recommendation? If we have folks in the community who do wanna explore legal action against their current or former employer, what would you recommend?
48:45 Daphne Delvaux: Right. That's a good one. So you wanna really make sure that you're going to the right sources. Sometimes when you're Googling your rights, you're gonna land on the website by an employment defense firm or an HR consultancy firm, and that's gonna be advice geared to the employer that actually will protect them instead of helping you. So when you're finding resources, you wanna go to lawyers like me who protect and... and represent employees.
I have a whole blog with so much resources online, and I know a lot of other lawyers do too, and they explain it in a way that helps you as a worker and really explains what all of your rights are, a little bit of caution with going to government websites. Government websites are not always complete, unfortunately. So, they may provide snippets of your rights, not the full breadth, and you kinda need to go to these lawyers’ website that ties it all together.
49:48 Colleen Curtis: Fantastic, thank you. And we will share your website and blog as part of the recap when we do send that out to anyone that RSVP’d for this. We will send that out as well. Tiffany, did we have anything else ome in?
50:03 Tiffany Nieslanik: I am looking through them, I feel like most of the questions that came in have been addressed, and I do think we did have a general question that sort of... Can you give us a snapshot of your most frequently asked questions in case it's maybe somebody's not thinking of a question that is fairly common that we haven't covered yet?
50:24 Daphne Delvaux: The most frequent questions... When do I announce? And what do I do when I feel like it's... my job isn't fair anymore? And I’m being treated differently? And what do I also... This one I get a lot, I don't have evidence. A lot of women think they need... They need some sort of email for writing that says “Reason for Termination Pregnancy.” And this is because a lot of us watch, have watched these shows, these TV shows on trials, and we think we need a lot of evidence and proof beyond reasonable doubt, and that is actually not true in the civil justice system. So, in a criminal case, you have to prove beyond reasonable doubt that something happens. In a case like a civil case, which would be this one, you only have to prove by 51%, which we call preponderance of the evidence, and your testimony is also evidence...
51:33 Daphne Delvaux: Timing is evidence. So, for example, if your termination comes shortly after you return from leave, that timing in and of itself is evidence, even if they give you another reason. They often tell women that it's... The most common ones are performance and budget cuts, and then I look into the company's finances and I see that the companies are doing fine, or I look into the performance reviews, and the performance reviews are all fine, and there are no complaints at any time about the performance of the one who's terminated, so that is all evidence.
You don't need like a recording or an email where someone admits that they're discriminating against you or firing you... Because you went on leave. It really never happens. It's happened in extremely rare situations, usually smaller companies, people from sometimes other countries. But most of the cases we have, the evidence is the testimony, the story, timing of things, and often the lack of evidence on the employer side is our evidence. Like, Oh, if you're telling me that’s the reason of termination, but you have no evidence to support that, the conclusion is that the real reason was that maternity leave or the pregnancy. So that's something that I really want women to know 'cause they think they need so much evidence and it's just not true..
53:00 Colleen Curtis: Fantastic. Question here, we had one from the chat. Can you advise about resources for those that are 50+ and women, and so my follow onto that is, is that then considered a workplace discrimination against mothers? Or is it really about ageism? And I guess I would just love sort of your thoughts.
53:17 Daphne Delvaux: So that's a really good question, and I have a lot of age cases too. Age and gender are often two factors that are considered together in a discrimination case. Unfortunately, older women are subjected to a lot more discrimination than older men. And older mothers who are subjected to a lot of discrimination and then the... Sometimes minorities, it gets compounded, so there's a lot of cases that we do with mixed motives, so not just female but being older female or being African-American female, where you have all of these compounded factors and the law recognizes that, the law recognizes that you can be discriminated against as an older woman, even if it's a younger woman doing it. And I wanna be very clear about this.
A lot of my cases, the bad actors are women, and this is something that we need to be mindful of. An Equal Pay case I won was against a female owner paying women less than men. And unfortunately, this is this ingrained patriarchy that a lot of us had to de-tangle, but some of us, it's still there and it's more present than in others.
So being an older woman is definitely a protected class in and of itself. It’s called a mixed motive discrimination case. Or sometimes a Latina mother can be treated worse than a Caucasian mother, and again, that is also brand for discrimination, we also have Equal Pay cases where certain women or certain ethnicities are paid less than white women. And these are very difficult complexities and nuances within discrimination cases, 'cause there's kind of this assumption, it's kind of like white men against all women, and that's not necessarily true.
55:09 Daphne Delvaux: It's complicated, there's a lot of biases. There's a lot of rejection, a lot of presumption. And it goes, you know, it’s deep. And people don't like to admit that they're racist or sexist. Every time I accuse them, they always deny it, of course, but it's something that is often so subconscious, so when you feel like you're treated differently as an older woman, even though younger women are treated well, that could still be grant for termination for discrimination. The protected class for age is 40 up. So if you're treat...it’s not illegal to treat someone bad for being young. That's not a thing. Only when you're over 40 are you protected from discrimination.
55:51 Colleen Curtis: Okay, that’s so interesting. Okay, we have one last quick one, and then we'll do parting...parting thoughts. So, can an employer make you pay back your maternity leave time or benefits if you do not return to that workplace after you have the baby and take your leave?
56:09 Daphne Delvaux: So that is something you would... That I cannot really answer as a general... Because it depends on the plan.
56:14 Colleen Curtis: Okay.
56:15 Daphne Delvaux: Generally, employers don't pay for maternity leaves. It’s the benefits...the state benefits. So in California, it's called the EDD, so this is the government entity that pays your benefits. So definitely, if you receive your money from the government, they can't ask you to pay it back. If your employer funded your leave, you need to look at the plan because what that is...it is not a right to be paid during maternity leave by your employer, it is a privilege. And when something is a privilege, the employer can pretty much decide whatever rules to make around that.
And if they're gonna say, Hey, we're gonna pay you during your maternity leave, that is something that you would not be entitled to under the law, so you cannot take any legal action. However, you wanna look into the contract, maybe the contract protects you. So this is something that is so specific to this woman's personal job that I can answer that.
57:18 Colleen Curtis: Yep...totally makes sense, it's a really looking at the plan, really understanding the policies at the state level, kind of what that plan outlines...
57:26 Daphne Delvaux: Yeah..so the.money from the government, you're never gonna pay it back. If the money came from the employer, you have to look at the plan that the employer provided to you about these benefits.
57:36 Colleen Curtis: Okay, thank you. And so I know we've just got a couple of minutes, and so would love to just tell like have you speak to the audience directly on just what you hope they took away from this and sort of your thoughts about sort of fighting the good fight. And so, we're so grateful to have had you here, and so would love for you to just be able to speak freely for a minute.
57:56 Daphne Delvaux: Yeah, that’s awesome. Yeah, sometimes I get so intent about the law and I'm like, I wanna talk about the mission. So it's really important right now that we're paying attention and we've all seen the data and the research on how many women are... out of work, and it's alarming, if you look at that on a mass scale and how many organizations are without women, and my perception on that is that a lot of employers are using Covid and the pandemic as an excuse and a reason to systematically demote or exclude women and they can sometimes get away with it a little bit more because of budget cuts and restructuring.
So you wanna make sure that you're paying attention that your employer is not abusing Covid as a reason to exclude a lot of women. And that's what's happening right now. The law is an incredibly powerful tool. It's only in a court of law that my client as an employee is a complete equal to a well-researched large corporation. It is an equal fight, and that's what I love about the law. It is a great equalizer... So, you may feel like you don't have any bargaining power when you're going through your employment, but make sure that you know that the law is there for you, and that asserting your rights is something that we've kind of been discouraged to do.
59:30 Daphne Delvaux: A lot of women have been told, be quiet... And just move on. So a lot of women leave their jobs quietly, a lot of women's sign releases of their rights when they leave jobs, and then the problem continues perpetually, so my hope with the information I provide is to kind of empower women and let them know that it's okay, it's okay to use your rights. It's okay to assert your rights. They're there for you. The community decided they’re there for you. Companies do it all the time. When there's a company dispute, they're suing each other all over the place. They feel no shame around it. But there's been this incredible lobby to shame people to use their rights and assert their rights, but really what enforcing your rights is is like these are the boundaries set in place and you crossed them, and there's ramifications for that, and we have made a decision as a society to protect women at work.
And we have a responsibility to enforce those decisions that were made... And that's beautiful about this country, that those rights are in place. So, use them. That's not... the people who fought for these rights, we can't let them down, and it's really scary, but there's a lot of us behind you, there's a lot of us, there's this whole momentum of empowered moms and lawyers that are behind you, and no one I've never represented has regretted it.
1:00:56 Daphne Delvaux: It's not easy. But it is really the right thing to do. And often what happens is that women will go away quietly and then it happens to someone else, and then they feel so much shame because they could have prevented that, and then they call me and then they say, Oh my God, is there anything I can do? And then it's often too late. And the statute of limitations has expired and they never forget that, and they kinda never get over that and they still feel like they could have done more, and this is all about what are we showing to our daughters about what's the right way to deal with people who are violating our rights, 'cause that's what it is. And really using your rights, not being scared to assert them, not being scared to call a lawyer, ask for advice. It’s really important for all of us to remain productive and successful as women.
1:01:51 Colleen Curtis: That was so great. I was trying to go write the quotes for me so we could share them later, but I really love that sentiment and that we just have to to honor those that fought before us for a better workplace, and it's why we bring such incredible speakers and professionals like yourself to continue this fight. And I know we've got so much energy behind it, and so we're just so grateful to have had you here for the day, for the hour, and so we will follow up with everybody, that RSVP’d to the session, and then we would love to reconnect with you also Daphne, we... This has been so great. Tiffany, I don't know if you have anything else before we go.
1:02:32 Daphne Delvaux: Thank you.
1:02:33 Tiffany Nieslanik: No, I just want to say thank you and yes, just basically echoing everything that Colleen threw out there just now.
1:02:42 Daphne Delvaux: Thank you. And everyone, thank you so much if you... I know you're so busy and I really appreciate you being here and make sure to follow me on Instagram, @TheMamattorney, 'cause I provide a lot of legal information, it's a very content-based account. And if you need specific help, I may not. I may know someone where you live, so just reach out and ask me and I'll do my best to connect you to someone who can help you.
1:03:08 Colleen Curtis: Thank you so much, Daphne.
📖 Read More: Determining When to Disclose Your Pregnancy at Work
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