One of the worst parts about managing other people is that sometimes you have to fire them. Firing an employee is always difficult and should always be taken very seriously. But, a reader is faced with an even more difficult situation than normal--the non-performing employee is pregnant. He writes
The HR director told me that I cannot fire my assistant, who is not performing until she gets back from maternity leave. Here are the details:
• After 3-6 months of her being in the position, it became apparent that she was unfit for this position. There are parts of the job description that she simply cannot and will not do.
• She informed me (supervisor) she was pregnant around Dec.
• I approached HR in Jan and they told me to place her on a 3-month enhancement plan - which is ongoing and ends shortly.
• She informed HR the same week she was pregnant.
• Since we were getting ready to terminate the HR director was notified and he said we could not do that until she returns from maternity.
• Not to mention she has developed a terrible attitude towards me (slamming doors; rudeness).
She will fail her last enhancement plan but nothing will happen. What am I to do? Is there anything I can provide to the HR Director to help her reconsider?
It's absolutely perfectly legal to fire someone who is pregnant and waiting until she gets back from maternity leave doesn't make it any easier. The protections don't end once she delivers the baby. What is illegal is to fire someone because she's pregnant.
And here is why your HR director is worried and forbidding you from firing this employee: You knew you had a terrible employee. You knew for months that she wasn't capable or willing to do her job. But you waited until after she announced she was pregnant to begin any sort of formal disciplinary process.
Even though she absolutely, positively needs to be terminated (assuming that everything you've said is true), you didn't do anything about it until after the pregnancy announcement and that makes it look like you are disciplining her because of the pregnancy.
Now, this doesn't mean you can't legally fire her. It just means that you have to be extra cautious about the whole affair. It also means you need to look very carefully at your department and make sure that no one else is committing the same infractions that she commits. If they are, they should be written up and placed on performance improvement plans as well.
Once you've made sure that you've addressed any similar problems and not just with the pregnant employee, I would go back to the HR director with your documentation and ask him to reconsider approving the termination. Make sure you have everything written up, including how you've addressed each issue.
Point out that waiting until after she gets back from maternity leave doesn't actually protect the company and may make it more difficult. After all, you tolerated this behavior for a very long time and only took action after she took a protected leave. (Assuming she'll be there at least a year when she gives birth and will be eligible for FMLA.) Terminating her right after her return would be seen as FMLA retaliation.
Additionally, allowing her to stay while she's actively doing things like slamming doors and treating her supervisor rudely damages morale within the department. The longer she's allowed to behave like this, the more likely you are to have your best employees quit. They have options, so why would they stay in a department with a rude, immature co-worker?
I would suggest to the HR director that when she fails her last portion of her improvement plan, you go ahead and terminate her and then not oppose unemployment. You have the documentation to show that her termination was not related to her pregnancy.
In the future, never wait to address an issue with an employee. The longer you wait the more likely it is to look like some sort of retaliation. Why was this behavior fine for 6 months and suddenly it's not? If the behavior is not fine, address it immediately.
This doesn't mean being a micro-managing jerk, but it does mean having regular conversations with your employees and providing regular feedback. That way you won't run into this situation again.