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After a few weeks looking, we hired someone last night to…

After a few weeks...

After a few weeks looking, we hired someone last night to replace an existing employee due to performance reasons. Today, we were going to let that employee go, but she tells us that she was absent the day before because she thinks she's pregnant. Can we still fire her?

Lawyer's Assistant: Was this retaliation? Or based on age, race, religion, gender, or disability?

No

Lawyer's Assistant: What kind of workplace is this (private sector, public sector, etc.)? How many employees?

Private. 6.

Lawyer's Assistant: Where are you located? Workplace termination laws vary by state.

California

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

That's all

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Answered in 2 minutes by:
6/28/2018
Roy Hadavi
Category: Employment Law
Satisfied Customers: 1,493
Experience: Attorney at Law Offices of Rosenstein & Associates
Verified

­­Hi. My name is ***** ***** I am a licensed attorney. I would be happy to provide assistance. Please keep in mind that our conversation does not include an attorney‑client relationship and this is for general information purposes only.

Answer: Yes, you may terminate an employee, even if they are pregnant. However, in such an instance it is imperative that you have ample documentation prior to her notifying you of the pregnancy and prior to any possibility that you were aware of the pregnancy, that you intended to terminate her employment. It is also important that you sit down with her and explain that the termination was planned prior to her notifying you of the pregnancy.

These steps will reduce the likelihood that she pursues a claim against your company. However, you should be aware that this does not guarantee that she will not pursue a claim. The documentation will assist in proving that you did not violate the law.

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Customer reply replied 1 month ago
I'm unsure how much documentation is necessary to be "ample". Is the fact that we had a job ad posted in Facebook during the last two weeks good enough to be valid documentation? Also, two of our staff members gave us referrals for other candidates for the explicit purpose of replacing the employee we wanted to fire. All of this happened prior to today (the day we found out she was pregnant).

That should be helpful. There is no clear cut rule in this type of case. You are just trying to having supporting documentation in the event that she files a claim. This documentation would then be used to prove that this was not pregnancy discrimination. It is up to the fact-finder (judge, jury or labor board investigator) to determine that you were not discriminating against her due to her pregnancy.

Roy Hadavi
Category: Employment Law
Satisfied Customers: 1,493
Experience: Attorney at Law Offices of Rosenstein & Associates
Verified
Roy Hadavi and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 1 month ago
how do I give you a bonus?

I believe there is an option that comes up after you rate the question. Honestly, I am not 100% sure.

Thank you so much for the 5‑star rating! More importantly thank you for the bonus! I know rating takes an additional step and I truly appreciate you taking the extra time! It's been my honor and privilege to help you with this. If I can help you in any way in the future, I'll be happy to help. For easy access, my bookmark is: https://www.justanswer.com/law/expert‑royhadavi/ Or, simply request "Roy only" in the first line of your question.

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