5 Ways To Protect Your Rights When You Return To Work From An Employment Lawyer

By Melinda Koster

Whether you’re swapping out a rocking chair for an office chair or returning to an in-person setting, heading back to work after having a baby is a big transition. As an employment lawyer, I have counseled many parents about their rights in the workplace. Below are helpful tips and considerations to keep in mind as you navigate your return to work and step into your new identity as a working parent.

Know Your FMLA Rights

If you took parental leave under the FMLA, you have rights related to your return to work. Generally speaking, employees returning from FMLA leave have the right to return to their original job or a nearly identical position with equivalent pay and benefits. It is illegal for employers to fire or demote employees for taking FMLA leave. Even if your leave is not covered under the FMLA, you might be entitled to similar job protections depending on where you live and work. In New York, for example, workers eligible for New York Paid Family Leave are entitled to take up to twelve weeks of job-protected family leave to bond with a new child.

Speak With Your Employer About Your Pumping Plans Before Returning to Work

If you’re planning to pump when you head back to work, you will need sufficient break time and a private space to express milk for your baby. Most likely, you will need to pump at least two to three times in an eight-hour period. Similarly, the amount of break time you’ll need for each session depends on a range of factors, including the type of pump you use and how close your pumping space is to where you work. Take stock of what you think you’ll need in terms of time and space and remember that your lactation needs will evolve.

Carve out time to speak with your supervisor or Human Resources before your return date. You can prepare for that conversation by researching your rights. Depending on where you work and the nature of your job, you may be entitled to certain lactation accommodations by law. For example, if you are covered by the Fair Labor Standards Act’s Break Time for Nursing Mothers law, your employer must provide you “reasonable break time” to pump milk for up to a year after your child’s birth; your employer must also provide you a place to pump that is not a bathroom and “that is shielded from view and free from intrusion from coworkers and the public.” Apart from the federal Break Time for Nursing Mothers provision, there is a growing patchwork of state laws, and even city laws, that require similar, if not more rigorous, protections for nursing employees.

Even if you’re guaranteed lactation accommodations by law, it is worth having a conversation with your supervisor or HR about your pumping plans to ensure a more seamless transition. Come prepared to suggest solutions and to educate your boss or HR about your needs, including that the bathroom does not cut it as a pumping space.

If you have your own office, but you’re in a fishbowl, blinds could do the trick to create privacy. If you work at a restaurant or another site that is short on private space, consider asking if a supply closet or manager’s office can be repurposed into a temporary pumping site. Fortunately, you do not need to do this homework on your own. The Office on Women’s Health provides a host of suggestions for creating suitable lactation spaces in the unlikeliest of places.

Finally, if you’re working from home, the same laws that entitle employees to breaks and privacy while pumping should apply in remote environments. If you anticipate that you’ll be expected to join Zoom video calls during times when you’ll need to pump, speak to your supervisor before your return date and explain your need for breaks and privacy.

Consider Proposing a Flexible Work Arrangement

There is no federal law that requires companies to provide parents with flexible work arrangements based on their caregiving obligations.* That said, if you are interested in a flexible work arrangement—whether it be in the form of reduced hours, an adjusted work schedule, or working remotely—consider pitching a proposal to your employer. Before you do, review your company’s handbook to see if your employer already has a policy for flexible arrangements and reach out to fellow employees to get a handle on the company’s past practices.

Whether or not your employer has a formal policy or a history of granting these arrangements, you can present a strong business case for why your company should embrace flexibility in the workplace. In fact, several studies confirm that flexible work arrangements enhance worker productivity, improve morale, and reduce attrition and absenteeism. Flexibility is also a key driver for promoting inclusion and retaining talented employees, especially women.

When negotiating with your employer, highlight why a flexible arrangement would be a win-win for both you and the company. And if you receive pushback, be prepared to revise your proposal to address your employer’s concerns or suggest a trial period to test out the arrangement.

Finally, if you do experience any negative repercussions for requesting flexibility, bear in mind that you may have options depending on where you work. Some cities (e.g., Chicago, New York City, Philadelphia, San Francisco, and Seattle) and states (e.g., New Hampshire, Oregon, and Vermont) have passed “right to request” laws, which prohibit retaliation against workers for requesting flexible arrangements.

*You may, however, be entitled to a flexible work arrangement under certain federal laws depending on your individual set of circumstances. For example, you might have the right to a flexible arrangement under the Americans with Disabilities Act if you have a disability and if teleworking or a flexible work schedule would function as a reasonable accommodation for your disability. Postpartum depression, for one, qualifies as a disability under the Americans Disability Act if it substantially limits a major life activity.

Push Back Against Maternal Wall Bias

Chances are you’ve heard of the term “glass ceiling.” What about “maternal wall bias”? Maternal wall bias is a type of gender bias rooted in stereotypes that mothers are not as committed or as competent at their jobs as other employees. While maternal wall bias can rear its ugly head at different stages of parenthood, a return from parental leave is a common trigger.

Maternal wall bias can manifest in the form of a supervisor steering you away from growth-oriented or challenging work assignments, passing you over for a promotion, or doling out negative performance evaluations—all on the discriminatory assumption that you are no longer committed to or competent at your job (as if pregnancy or taking on the very skilled task of raising a child somehow wiped out your intelligence and skill sets overnight).

Make no mistake about it—this conduct is discriminatory.

Maternal wall bias is a structural, complex problem that requires deep solutions, legislative reform, and employer engagement. Still, there are some strategies that you can use to interrupt this bias. As Professor Joan C. Williams, the Founding Director of the Center for WorkLife Law, recommends, be clear with your supervisor about your career goals and what you can take on. If you are open to relocating, ready to embrace travel, eager to start a new initiative at work, or if you’re the primary earner in your household, make that known to your supervisor. Otherwise, there’s a risk that your supervisor might assume the opposite. These strategies are not foolproof, as I know all too well from working with clients who have experienced caregiver discrimination. But they are helpful to consider as you step back into the fold of the workplace.

Consult Resources

More questions will come up during your transition. Don’t lean on Human Resources or your company’s handbook as your sole source of information. Do your own research too. My firm’s Working for Justice blog provides employees with practical information about workers’ rights. Similarly, organizations like A Better Balance, the Center for WorkLife Law, and the National Women’s Law Center offer a wealth of resources on their websites.

Finally, if you think that your employer may be discriminating against you, reach out to an employment attorney. A lawyer can give you guidance about your situation and your options. Consultations with attorneys are private and confidential and do not commit you to taking any action. Regardless of what you decide to do next, an attorney consult can empower you, equipping you with tools and information to navigate the workplace.

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