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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 11347
Experience:  Licensed Texas General Practice Attorney
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Dear Lawyer, Thanks a lot for your time. I am currently

Resolved Question:

Dear Lawyer,
Thanks a lot for your time.

I am currently hired by IBM China. I am currently in the lactation period (in China, the lactation period is 1 year after the child was born. My boy is 8 months old). IBM China HR asks me to resign tomorrow since I was violated on business meal expense in 2011. I would like to consult: is it legal to fire an employee in lactation period even she is violated 2 years ago in U.S? can I sue IBM in US since it’s an America company? Any protection in U.S for women in IBM China in lactation period? What Can I ask for, e.g. 2N+3 compensation? What’s the win rate?

Thanks a lot.
Submitted: 9 months ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 9 months ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. I want to be clear that this answer applies only to U.S. Law, as I have no expertise in Chinese law.

Customer:

Thanks a lot for reviewing my case. yes. please. according to US. employeement law. I don't know if I can sue IBM U.S.

ScottyMacEsq :

is it legal to fire an employee in lactation period even she is violated 2 years ago in U.S? - Yes, an employer can terminate an employee so long as the reason is not because of pregnancy or medical leave. That is, an employee can be terminated at any time for almost any reason, so long as the reason is not discriminating based on race, age, religion, gender, disability, or pregnancy status.

Customer:

please give me some time to read it. thanks .

ScottyMacEsq :

can I sue IBM in US since it’s an America company? - If you did not actually work in the U.S. Or have an employment contract that states that the US is the "choice of law", then even though IBM is an American company, the "situs" (the place where you are employed) would actually control. This would be true even if you were an American. So if you're an American, Chinese national, or any other nationality, working outside of the jurisdictional boundaries of the United States, you're not going to be subject to American labor laws.

ScottyMacEsq :

And as such, you would not be able to sue them in the U.S. for violations that do not apply outside of the borders of the U.S.

Customer:

thanks

Customer:

understand.

Customer:

in addition

ScottyMacEsq :

Any protection in U.S for women in IBM China in lactation period? What Can I ask for, e.g. 2N+3 compensation? What’s the win rate? Like I said before, this is a jurisdictional issue. Even for an American company, a court will not get involved in affairs that take place entirely outside of the confines of U.S. borders and legal protections.

ScottyMacEsq :

Only if there is a voluntary "opt in" (such as a choice of law provision in an employment contract) would you have any rights in American courts. Otherwise, the protections (if any) of Chinese labor laws would be all that would apply.

Customer:

understand. in addtion, I am currently suffering depression from the working stress and audit process. does this help?

ScottyMacEsq :

Not to get into an American court, unfortunately. Only if you could prove that this occurred on American soil (and the state where that occurred would have jurisdiction over that claim). If it was outside of the states, then you would need to file (if possible) in the location where it occurred.

ScottyMacEsq :

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

ok... hopeless... then.... but.. thanks a lot.

ScottyMacEsq :

My pleasure, and again, I wish you the best of luck.

Customer:

thanks a lot. rating 5.

ScottyMacEsq :

Thank you, XXXXX XXXXX good luck to you.

ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 11347
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and 6 other Employment Law Specialists are ready to help you

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