Workplace

Is it legal to fire someone while they’re on parental leave?

Twitter is in chaos right now. But that’s still not a good reason to fire someone while they’re on parental leave.

Kayvon Beykpour's tweet about termination

Kayvon Beykpour was terminated during his parental leave.

Screenshot: Twitter

This week, Twitter fired the company’s head of Consumer, Kayvon Beykpour, in the latest shakeup related to the Elon Musk deal.

According to Beykpour’s tweet, the senior executive was on paternity leave after welcoming a daughter last month. This brings up a lot of questions around the ethics — and legality — of firing someone while they’re on parental leave.

CEO Parag Agrawal posted a lengthy tweet thread on Friday ostensibly explaining the firing of Beykpour and Bruce Falck (general manager for Revenue), and according to a memo leaked to The New York Times, Twitter is also calling for a hiring freeze.

Twitter is in an overall state of crisis right now, and letting Beykpour go during his paternity leave is a huge misstep, at least according to parental leave advocates. “This is a bigger deal than I think most know, and we’ll be talking about it for a long time,” Amy Beacom, founder and CEO of the Center for Parental Leave Leadership, said.

Beykpour did not respond to a request for comment from Protocol, and Twitter declined to comment.

Is this legal?

Firing someone while they’re on parental leave is generally not a good idea for a plethora of legal reasons, according to Mark P. Carey, an employment law attorney and owner of Carey & Associates, P.C.

The issue is that the person being fired could very easily sue the company for discrimination based on sex. They could also sue the company for violating the Family and Medical Leave Act, which entitles eligible employees to take unpaid, job-protected leave following the birth of a child.

Twitter’s official parental leave policy is that any employee of any gender who becomes a new parent can take up to 20 weeks of fully paid time off.

What the company could argue is that the firing has nothing to do with the fact that the employee in question is on leave.

According to the internal memo, the official position on the ousting of Beykpour and Falck was that the company was not hitting goals in audience and revenue growth.

“It’s crucial to have the right leaders at the right time … as a company we did not hit intermediate milestones that enable confidence in these goals,” Agrawal wrote in the memo.

That’s a valid argument, Carey said, but what matters is what the employer tells the person being fired when they let him go: If they say it’s performance-related, and they have all the facts to back up their claims of performance issues, that’s going to work in the company’s favor.

On the flip side, if the company is vague and says something to the tune of they want “to take the team in a different direction” and it’s clear that the employee was a high performer up until that point, “you’ve tipped towards the issue of bias.” Employers need to be careful of what they tell the employee with regards to why they’re being let go at the moment of severance, because they’ll be judged on that answer.

And saying the wrong thing comes at a cost. Federal gender discrimination claims are capped at $300,000 under the Civil Rights Act of 1991, but claims under state law are a different matter. In Twitter’s case, California has “very robust employment laws” with no cap.

A chilling effect

Beyond the legal thorniness around the practice of ousting someone while they’re on leave, we already know that there’s a stigma attached to leave, especially for fathers in tech, with some men worried that taking extended time off will hurt their careers.

For Beykpour to be in such a high position and take paternity leave at all was “already brave and setting an example for Twitter,” giving unspoken permission to people in lower-level positions to take their own parental leaves. Granted, Agrawal himself took “a few weeks” of paternity leave himself back in February.

Firing someone while they’re on parental leave is “morally and ethically abhorrent,” Beacom said. More than that, it’s also “extremely bad business” and could have a dampening effect on morale, recruitment and attrition, as well as overall employee perceptions of what’s OK and what isn’t.

“It introduces doubt, especially for managers within Twitter, and it’s precedent-setting,” even if the firing has nothing to do with the leave, Beacom explained.

That’s especially the case when the person being fired in question is a high-level male executive at a high-profile company like Twitter. It creates a chilling effect throughout all levels of the working world, both at Twitter and beyond.

That effect is already evident. Twitter employees told independent journalist Casey Newton this week that losing Beykpour and another top leader so abruptly was a huge blow to morale. One of them told him, “I don’t know if anyone will ever feel safe taking parental leave at Twitter.”

How to do it right (fire someone while they’re on leave, that is)

Smart employers will always wait to let someone go when that person returns from leave. “Firing someone in the middle of leave means you’re not listening to your lawyers; you’re basically asking for it,” Carey said.

The proper thing to do is wait for the person to come back to work. And it’s important to wait an appropriate amount of time as well, at least two months, according to Carey. The further away from the employee’s return-to-work date, the stronger the employer’s case.

The one situation in which it would be legally advisable to fire someone while they’re on leave is if it’s part of widespread departmental layoffs or a merger that results in a duplication of efforts, according to Carey. That makes it harder for the let-go employee to claim personal discrimination.

Companies need to create a culture and a set of standardized processes around parental leave and, specifically, communication during the leave, Beacom said. She recommends a “keep in touch” strategy where, before the employee goes on leave, manager and employee agree upon what they want to be contacted about during the leave: if there’s a reorg or if they’re being fired, for example.

Beacom never recommends firing someone while they’re on leave. “It’s so disruptive at such a critical moment in their personal and professional lives … There is no way to do it well, and very rarely are there cases to do it at all,” she said.

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