The Laws of Pregnancy and Contractual Labor

The Family Medical Leave Act of 1993 (FMLA) and its precursor, the Pregnancy Discrimination Act of 1978, were both enacted to ensure working women and their families did not face discrimination as a result of a pregnancy. 

• The FMLA provides up to 12 weeks of unpaid leave to mothers or fathers to take care of delivery and infant care and makes it illegal to terminate someone for their pregnancy. 
• The PDA stipulates that employers treat pregnant and non-pregnant people the same with respect to all rules including benefits. 

When the pregnant worker is a contractor, the letter of the law can become a bit blurred. Here’s what your organization needs to know about pregnancy labor laws while utilizing a contingent workforce.

Ambiguity of Pregnancy Labor Laws for Contractors

To give you some perspective on the ambiguity of pregnancy labor laws for contingent laborers, check out this case highlighted by StaffingIndustry.com:

“Jessica Cuellar was a temporary employee assigned to Keppel Amfels by Perma-Temp, a staffing firm. Keppel Amfels builds and repairs offshore drilling platforms and marine vessels at the Port of Brownsville, Texas.

Cuellar began her assignment in June 2007, and in August 2008 went on maternity leave upon going into labor. Keppel Amfels terminated her assignment three days later and found a replacement worker on its own.

The district court, however, found no evidence that Keppel Amfels “acted with a discriminatory animus by terminating Cuellar’s assignment,” dismissing Cuellar’s claims.”

On appeal, the court found that only the primary employer, Perma-Temp, was responsible for compliance with leave according to the FMLA. Yet, the court ruled that the secondary employer (Keppel) did bear a conditional burden.

The secondary employer was obligated to accept a returning FMLA employee, provided they continued to engage the same staffing firm to fill that position. Since the secondary employer replaced Cuellar without using Perma-Temp to fill the position, neither entity broke its  FMLA obligations.

Cases like Cuellar’s sound pretty tricky, don’t they? Here are some points to help clarify the rules so that your organization handles these complicated situations with ease:

Staffing Compliance With Pregnancy Labor Laws 

Contract workers sourced via staffing companies are covered under the anti-discrimination statutes because, in the eyes of the law, they qualify as “employees” of the staffing firm. The staffing firm bears responsibility for the following: 

• Recruiting, screening, testing, and hiring workers 
• Payroll expenses and paperwork 
• Unemployment and workers’ compensation insurance 
• Payroll and withholding taxes 
• Any additional employee benefits they may opt to offer. 

Consequently, staffing firms and their clients (secondary employers) may not discriminate against the workers on the basis of race, color, religion, sex, national origin, age, or disability—including pregnancy. 

Still, there are significant differences to consider:

Differences and Considerations

The FMLA says individuals must have worked for an employer for at least 1 year before being eligible for protection under the law.  As most contract assignments are short-term, this often makes the point moot.

The Pregnancy Discrimination Act does not mandate that companies offer healthcare and other benefits; it simply requires that employers make benefits given to any employees available to all. Again, since many staffing suppliers offer minimal-to-no benefits, the law here is again moot.

As is the case with many contractor arrangements, the contract specifies the length of the engagement. In cases where the contractor becomes pregnant before the contract is fully concluded, the employer can legally terminate the contract for failure to meet the conditions of the agreement. This, again, renders the law irrelevant.

Navigating the Complexity

Understanding these nuances in how pregnancy/family leave laws work is important to ensuring your organization is compliant whenever a worker gets pregnant and seeks to take leave.

At nextSource, our experts in workforce management and training are well-versed in navigating the numerous challenges that can occur when managing a contingent staff, including (but by no means limited to) compliance with pregnancy labor laws.

Connect with us today to learn how we can implement our world-renowned workforce strategies to optimize your operations. We look forward to hearing from you!

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