Human Resource Blog

Small Business rights in hiring and firing in New Jersey

Just to follow up on the previous question: a 2 month pregnant employee went on disability on september 7 09 and handed us a note from her treating physician confirming the need for her to leave as a small employer less tha 10 emloyee we had to scramble and ask a previous employee who left due to change in career to fill in the gap and accepted untill end of december.Recently after not hearing from the pregnant emloyee for the past two months she text message the manager and asked her hours to be reinstated as of 12/2/09 at 40 hours a week knowing that in the last 3 months she only worked 36 hours a week . we initially did not mind to give her back 22 hours as the office has become crowded and promised to give her back her hours by january first when the fill in temp will leave.Suprisingly we received a threatening letter from her lawyer stating we are violating the federal pregnancy discrimination act and the New Jersey state law and that we should reinstate her full hours by december 2nd .obviously she is not wanted. what is our rights as a small business employer thank you in advance for your help

In general, when an employee has a lawyer, you also need a lawyer — partly because we do not give legal advice.

Part of the problem here is that the terms of the employees separation were not made clear. If she quit, you should have required that she put this in writing. If you terminated her for absenteeism, you should have sent her a registered letter stating that. So part of the current mess is due to a lack of HR procedures. Apparently by not addressing the issue directly, you left the employee with the impression that she had a job to return to, when she was physically able to do so.

The New Jersey Family Leave law covers only employers with 50 or more employees — so the employee was not entitled to leave under either New Jersey or federal law. As such, you could have and should have terminated this employee when she exceeded your standard for absenteeism — perhaps after 2 or 3 weeks.

New Jersey has one of the toughest anti-discrimination laws in the nation — and it does cover small employers. Under the New Jersey law, you must treat an employee on pregnancy disability just as you would treat an employee with any other medical problem, such as cancer, a stroke or a heart attack. If you have permitted an employee with a medical condition to return to work after an absence of several months, then you must permit this employee to do so now. Doing otherwise would be illegal discrimination based on sex and pregnancy.

Many small employers do not offer any unpaid medical leave or short term disability leave. An employee with a heart attack, cancer or stroke (or any other medical condition) who missed more than two or three weeks of work would be terminated. If this is your policy, and you enforce it uniformly, you would be justified in not returning the employee to the job. Explain to the employee that since you do not offer unpaid medical leave, she was terminated. You are willing to hire her as a new employee, but the only position you currently have is part time, at 22 hours per week. If the employee agrees, treat her like a new employee — have her fill out an I-9, W-4, etc.

If you return this employee to work, you have created a de facto unpaid medical leave policy. Unless you formally change this policy in writing, in the future, you must extend these same benefits to any employee with a medical problem, or face discrimination charges. (If you have already returned the employee to work, that creates a big problem.)

This employee is bluffing. Your best tactic would be to inform her that she was terminated more than 2 months ago, and that she is welcome to apply for any opens that you may have. 

Note that you cannot retaliate against an employee for making a  good-faith complaint of discrimination, even if that complaint is later found to have no merit. So you cannot take any negative action against this employee due to her complaints or the letter from her attorney. Doing so would be illegal retaliation.