Can this employee be fired if they're talking about getting pregnant?

I'm a manager at a small company. We don't have an HR dept. The owner handles it but he's not trained in HR.

One person on my team really struggles with the job. She's been here for 3 years but still makes big mistakes. Not just typos, I'm talking mistakes that causes me to work extra hours to get it fixed so the company doesn't get fined kind of mistakes. I have had so many talks with her, offered extra help, training, given her suggestions, really tried to help her, but nothing seems to work. I want to fire her but the owner is worried because she's been telling everyone that her and her husband are trying to have a baby. The owner is worried about her suing him for discrimination if he tries to fire her now.

Jobadvisor

This is a really common concern for small businesses, and the good news is that documented performance issues generally protect you — but the timing does require careful handling.

The Legal Reality

In most countries (and in the US under federal law), you cannot fire someone simply because they're pregnant or trying to get pregnant. That would be discrimination. However, you can fire someone for legitimate, documented performance reasons — even if they're pregnant or trying to conceive — as long as that's the genuine reason.

The key legal question is: would you be firing her for her performance, or for her pregnancy plans? Based on what you've described, the answer is clearly performance.

What Actually Protects You

The owner's concern is understandable but somewhat misplaced. What matters legally is documentation, not timing. You're in a stronger position if you have:

• Written records of past performance conversations (dates, what was discussed, her response)
• Examples of the specific mistakes and their impact
• Evidence that you offered support, training, and opportunities to improve
• A consistent record showing this has been an ongoing issue for a long time — not something that suddenly appeared after she mentioned trying to conceive

If those records exist, the timeline actually works in your favor — it shows a long pattern that predates any pregnancy talk.

What Makes It Risky

The owner's concern becomes valid if:

• There's little or no written documentation of the performance issues
• She was never formally warned that her job was at risk
• Other employees make similar mistakes without consequence
• The firing happens very abruptly right after she mentioned trying to conceive, with no paper trail

In that case, the timing alone could look suspicious to a judge or labor board, even if the intent was legitimate.

Practical Steps to Take Now

1. Document everything going forward if you haven't already — write up the recurring issues, the conversations you've had, and the impact on the business
2. Issue a formal written warning (a Performance Improvement Plan or PIP) that clearly states expectations, a timeline, and consequences if performance doesn't improve
3. Apply standards consistently — make sure you're holding all employees to the same standard
4. Consult an employment lawyer — given there's no HR and the owner isn't trained, a one-time consultation with an employment attorney is worth the cost before taking action. They can review your documentation and advise on your specific jurisdiction

The bottom line: performance is a lawful reason to terminate employment. Pregnancy is not. Strong documentation is what separates one from the other.

Note: I'm not a lawyer, and employment law varies significantly by country, state/province, and company size. The above is general information — a local employment attorney can give you advice specific to your situation.

 

Misclassified as Salaried for 10 years + monthly pay schedule issue?

Hey all, hoping to get some insight from HR folks or anyone familiar with classification/pay rules. I’m trying to sanity check a situation from a job I recently left.

I was recently 1 of ~10 employees laid off from a small U.S. company (~40 employees) that seems to be shifting toward hiring more overseas workers.

I'll try to keep this as short and sweet as possible:

• Company is headquartered in Colorado + one overseas location, but all employees are remote (I’m based in California). I wrote website content led a small team of writers.

• Worked at the same company for ~10 years

• Started in a marketing specialist role, moved into a leadership role for the last ~5 years

• Managed a team of 2 employees (plus freelancers at times)

• Role was supposed to be a mix of management + execution, but in reality it was more like:

  • ~85% doing the same work as my team (writing, campaigns, etc.)

  • ~15% actual management (or maybe less, we were extremely busy)

• I also had a manager above me the whole time

• The job was "flexible" in the sense that I could go to a doctor appointment mid day if I needed to...but was expected to make up that time later in the afternoon or take PTO.

Pay structure issues?

• Classified as salaried from day 1 as outlined in my initial hiring contract

• Original contract (from ~10 years ago) included:

  • “40-hour/week role but expected to work as much as necessary to complete duties”

  • Clause stating no overtime would be paid

• Never received a new contract after promotions/role changes

• Paid once per month the entire time I worked there

Later developments:

• After maternity leave, I reduced my hours (to ~30–35/week)

• My “salary” was reduced accordingly — same hourly rate, just fewer hours paid

• Paystubs always showed an hourly rate + hours worked

• Regularly had my boss note to me that my hours were over "100%" meaning I was working more but not being paid more.

Questions:

1. Does this sound like a misclassification situation (salaried vs non-exempt), especially given the amount of execution work vs management?

2. If I was misclassified, is there any legal exposure around being paid only once per month for years?

   • I’ve seen that non-exempt employees in California are supposed to be paid at least twice per month, and that there are wage violations for that.

   • Curious if that actually turns into anything meaningful in practice

3. Does the fact that my “salary” was later clearly tied to hours (post-maternity leave) change how this would be viewed?

Not trying to jump straight into legal action, clearly I'm very bitter, and just trying to understand whether this is standard or something to look into with an employment attorney.

Appreciate any thoughts or experience here!

Jobadvisor

This situation has several red flags worth understanding clearly. Let me break down each of your questions:

1. Misclassification (Salaried Exempt vs. Non-Exempt)

This is the strongest potential issue. California uses a strict test for the "executive exemption" (the most likely exemption your employer relied on). To be legitimately exempt, you generally need to:

• Primarily manage (>50% of time) — your ~85% execution work likely fails this
• Regularly direct 2+ employees — you had this
• Have authority to hire/fire or meaningful influence over it — unclear from what you shared
• Earn a salary of at least 2x California minimum wage — likely met

The 50% management threshold is where your situation looks problematic. California courts take this seriously, and the "primary duty" test is not flexible — it's a hard time threshold in CA (unlike federal law). The fact that your boss was tracking you against "100%" hours and you were writing content alongside your team strongly suggests you were doing the same work as non-exempt employees.

2. The Monthly Pay Issue

Yes, this is a real and specific California violation. California Labor Code §204 requires non-exempt employees to be paid at least twice per month. If you were misclassified, then every month for 10 years you were paid on an illegal schedule.

Here's why this matters practically:

• Each pay period violation can carry waiting time penalties and wage statement penalties
• California's Labor Commissioner can assess $100/violation for first offenses, $200 for subsequent — across ~10 years of monthly pay, that math adds up
• These penalties exist in addition to any unpaid overtime you'd be owed

The statute of limitations in California for wage claims is 3 years (or 4 years for UCL claims), so you wouldn't recover the full 10 years — but the most recent 3–4 years are potentially in play.

3. The Post-Maternity Leave Pay Structure

This is actually quite significant. When your employer recalculated your pay based on hours worked at an hourly rate, they were essentially treating you as hourly/non-exempt in practice, even while maintaining the salaried classification on paper. This creates an internal inconsistency that:

• Undermines their argument that you were a legitimate salaried employee
• Could be used to demonstrate they themselves understood you were being compensated hourly
• The paystubs showing hourly rate + hours worked are documentary evidence of this

In wage and hour litigation, employers often argue "she was always exempt." It's harder to make that argument when your own payroll records show hourly tracking.

The Bottom Line

You asked whether this is standard or worth looking into — honestly, this is not standard. The combination of:

1. Likely failing the CA primary duty test for the executive exemption
2. Monthly pay schedule (illegal for non-exempt workers in CA)
3. Paystubs documenting hourly tracking
4. Written acknowledgment from your manager of unpaid overtime ("over 100%")

...is a meaningful cluster of potential violations, not just one technicality. The "over 100%" notes from your manager are particularly useful — written acknowledgment that you worked beyond your paid hours is the kind of thing employment attorneys get excited about.

What I'd suggest: A free or low-cost consultation with a California employment attorney who handles wage and hour cases is genuinely worth doing here. Many work on contingency for these cases specifically because California's penalty structure makes them viable. You don't have to commit to anything, but you're in a better position to make that decision with a professional assessment than a Reddit thread — including getting a realistic read on what the 3–4 year lookback actually yields in your specific situation.