How Work and the Law Collide for Professional Women
An Interview with Employment Lawyer, Amber Boyd-Moorman
We don’t all have the ear of an employment lawyer. But when we do, women are eager to inquire about two main topics - Company hiring practices and motherhood in the workplace, according to my small poll on LinkedIn.
I reached out to four-time Indiana Superlawyer, Amber Boyd-Moorman, to find out what women need to know about the law when approaching job search and motherhood. From the pregnancy reveal and pumping accommodations to illegal interview questions and non-competes, Boyd-Moorman gives us the legal scoop for your defining career moments.
Meg: What is it about law that you love? Why have you chosen to devote your legal career to discriminatory and employment issues?
Amber: I always knew that I wanted to be an attorney. I read To Kill a Mockingbird and Atticus Finch became my hero. I knew I wanted to go to law school very, very early, around sixth grade. I went to law school in Virginia and I didn’t really enjoy it except for the mock trials. It is kind of a geeky thing, but I loved litigation.
I graduated from law school and started in compliance and did it for a year or two and thought: “I am going to start my own thing. If I fail I can go and get another job.” So, I started my practice and at first I did not practice employment law, I practiced business litigation. I was still trying to figure it all out when a mentor asked “Amber, what do you like? If you like a certain type of law, look into it. The market needs someone like you in it.”
From that moment, I started looking into employment law and taking classes. I fell in love with it. I feel very passionate about helping people who are the most vulnerable among us. Most of my clients come to me when they lose their job or are dealing with some type of office (or job) lacking accommodations.
ILLEGAL INTERVIEW QUESTIONS
Meg: In your experience, what are common illegal interview questions a candidate may face in the job search process? How should a jobseeker handle those in the moment and what is the best course of action?
Amber: There are two common illegal questions. The first is regarding your age and the second is for women regarding children: “Do you want to have children?” “Are you finished having children?”, “Do you want to have more children?”
Age becomes a huge issue because it is, the majority of the time, irrelevant. It has nothing to do with the job. But what happens is, and it may not be intentional, when a question is asked then the people who are older typically get pushed out and not considered for the job.
Same thing happens for women who are in their childbearing years. So when you start getting questions like “Do you have children?” or “Do you want more children?”, you need to perk your ears up to understand what they are really getting at.
Typically, they are trying to uncover if you are going to start requesting time off, FMLA, or need an accommodation. All of those things are questions that you can easily get. Typically they are not intentionally trying to discriminate against you. It is under the guise of getting the business moving and having a steady person in the role, but the ramification is that you are closing the door on great candidates. And you’re doing it in a discriminatory manner because you think age or you leave [will make a difference].
“There are two common illegal questions. The first is regarding your age and the second is for women regarding children.”
How do you handle it in the moment? That’s a hard one. I typically tell people to answer the question. But when you are answering these questions, think about what they are asking you and what they are really trying to get at. Do a deep dive into yourself and think, “Is this a place I want to work?” If it is a place that you want to work and you don’t get the job, then you can maybe take legal action.
If a company does not believe that it makes good business sense to hire people either because of their age or family plans, do you want to work for somebody who is like that? It’s not worth it to your mental health, it is not worth it to your family and it is not worth it to yourself. It will cause you anguish. I don’t think it is worth it and I don’t think a lawsuit is worth it.
I do understand that there are some economic issues as to why you would. So when that happens, you need to make sure that you’re taking note of what is going on because if they are doing it in the first interview then this is the culture at this job. Pay attention to what is happening to you because it is not going to be the last time.
Meg: What are common interview phrases or questions that indirectly refer to age?
Can you manage millennials? Can you work with people that are younger than you? We don’t know if you would be a “good cultural fit” because we have a younger team. Can you adapt to our environment (that is very youth-oriented)? I see it a lot with women because I think age is sometimes appreciated more in men.
Meg: Interview processes are getting more complex (and in-depth) in the modern job search. If a job seeker is asked to do a project (or presentation) as part of an interview process that is unpaid, how do they ensure their IP is secure (and not used without payment or proper credit)? What is their legal recourse?
Amber: I don’t do intellectual property (IP) law, but one idea is that if it is out there in the ether and it is yours, take steps to secure the information before you give the presentation (and your knowledge) to these companies. Take steps to protect, copyright and trademark it to keep your IP safe.
[Those who are already working for an employer], have a deep understanding that what you are creating for a company is their IP.
Meg: Now, if the interview process does translate into an offer. Should job seekers seek legal counsel to review details of the offer, specifically non-compete paperwork? Why or why not?
Amber: Yes, definitely do so. I review tons of non-competes, especially in the state of Indiana, and I think we have what I would call a reasonable standard for a non-compete to not be upheld. [Reviewing a non-compete] is about making sure it is a reasonable standard.
You need to ensure as an employee that you don’t lose the ability to work somewhere else. [Secondly, when] you get a contract that is a non-compete, there is usually not just a non-compete in there, [but also] a non-solicitation clause plus a couple other clauses. I’ve never really seen a non-compete by itself. You have to really pay attention to that. If you want to set yourself up [well], let’s see if you can get what we call consideration, some payment for signing it.
Meg: How does it work with remote work? Where would you seek legal counsel?
Amber: Every non-compete I’ve ever seen, unless it is a non-compete that is not written well, is going to have a choice of law clause. So it is going to say that this non-compete is going to be governed by this [certain] state law. And so whatever the state law says, that’s where you need to contact an attorney. We get in the habit of just signing a document, but wait and take a second. Really look at what you are signing, read it because it is a contract, so take it seriously.
Photo by Gabe Pierce on Unsplash
FAMILY MATTERS
Meg: When should you disclose your pregnancy at work (or in the job search)?
Amber: A lot of people are not like this, [but] I say to share as soon as you find out. You want to put yourself in a situation where if you need to take leave or you need unexpected accommodations, you can. We have to get ourselves in the habit of making sure we place ourselves in environments that are conducive to our lifestyle. So if you are applying for a job, to me, it is about being upfront about what you need. So ask “What is your leave policy?” If they don’t have a leave policy, then you have to start thinking if this is worth your time to work there.
If you just had a baby and you are going to go to this job where they are working in person, ask if they have a lactation room, if breastfeeding matters to you. For me, it is better to be safe than sorry. Be honest about what you need because then you won’t find your situation where they have no policies around the things that you need.
Meg: If you wait until they offer you the position and then you ask these questions, can a company rescind the offer?
Amber: That is illegal. They can’t do that.
Meg: What should a working mom consider when taking (and advocating for) their parental leave? What are the rights of the worker? What are the legal obligations for the employer?
Amber: If you have an employer that has less than 50 employees in a 75 mile radius, I believe that there is no right to FMLA, which gives you 12 weeks leave. Basically, 12 weeks that you can be off of your job and upon your return, your job will be waiting for you. FMLA does not have to be paid. What I see a lot of times is the FMLA will run concurrently with short term disability. Typically, I see the person getting some type of payment. Usually it is not 100%; It’s around 60-75%. Some jobs give 100%. It just depends.
For people who have less than 50 employees, it is about requesting that accomodation. I’ve had multiple clients who say they are going to have a baby (especially with remote work) and then go right back to work. They just need a week or two off to get themselves back in that headspace. One to two weeks of leave is reasonable and it should be a reasonable accommodation, which is really not a lot of time.
What I always tell people is to take the one to two weeks of leave and then request an accommodation to work from home, if you’re not already doing so. Sometimes an accommodation is not parental leave, but your duties have to change according to a doctor’s orders based on what you are able to do right now. Engage in conversation with your employer and your doctor.
Meg: Can an employer legally staff me on “easier” work projects (less challenging, less travel) out of “benevolence” after I come back from parental leave?
Amber: They cannot treat you differently because you just had a child. That is illegal for them to do that. Some employers think it is nice, but what I find is that it tends to backfire on the employee, particularly when there are promotion opportunities or raises involved. The employer falls back on ‘have been doing abc and typically your job is xyz.’ If you did not request an accomodation, I think you need to have a conversation with your employer saying this is not what you want. You want to do the work. I have almost always found that this does not bode well for the employee. It stifles their career opportunities.
“They cannot treat you differently because you just had a child. That is illegal for them to do that. Some employers think it is nice, but what I find is that it tends to backfire on the employee, particularly when there are promotion opportunities or raises involved.”
Meg: What is an employer’s legal obligation for women pumping after the one year mark? There are worries that a woman can be penalized for (or fired) for making this request (or taking the time to do so).
Amber: There is no time limit when you can have accommodation, especially for pumping. I have never seen a woman request anything crazy. It's usually 15-minute spurts every 2-3 hours. There are people that take smoke breaks in those increments so if you are allowing people to take smoke breaks in those increments, it should be no issue for pumping. It can be past a year mark. I think that if an employer attempts to terminate you or attempts to deny that request, then that is a denial of an accommodation and a violation of the law. It is illegal. Pumping is not something that is a burden to the employer. It is very rare that there is any job where you can’t take 15 minute break increments every 2-3 hours.
Meg: What reliable information sources do you recommend for new working moms to navigate their rights (and work) as a new parent in the workplace?
Amber: It’s not sexy and it is not fun, but check out the EOC website. They have so much information and it is vetted because it is coming from the federal agency. This is a plug, but go to my YouTube channel. You can watch videos about what are your rights as an employee, especially when it comes to FMLA and making complaints to HR.
Wherever you are located, hitch yourself to good legal counsel. Contacting a lawyer is not for the faint of heart. Lawyers can be expensive. Dealing with lawyers can be time consuming, but it can save you a lot of heartache in the end.
Meg: What is your #1 piece of advice for women in the workplace?
Amber: Don’t be afraid. This is a place of privilege to a certain extent, but do not be afraid to really communicate your needs. I am not saying to go in guns blazing, but I think there are ways to communicate with your employer that will make for your experience to be the best experience at your job. When we do not articulate our needs, we are not articulating our desires. This does not in any way, shape or form help us in the long run. So don’t be afraid of articulating what you need because I think a lot of employers are decent employers. They’re not trying to hurt you. They’re not trying to ruin your life. They want a good workforce especially in the time we are in now. So say what you need and they will probably give it to you because they realize if you are happy, you’ll do good work.
Amber K. Boyd-Moorman is a versatile professional with strong experience in managing complex litigation matters. She founded Amber K. Boyd Attorney at Law in 2013. Ms. Boyd Moorman practices employment law with a focus on discrimination cases.
Please note none of the above commentary indicates a lawyer/client relationship and does not constitute legal advice.