My American company refuses to pay my maternity leave

Dear Vivian,

I work remotely for an American company but reside in Kenya. After informing my supervisor about my pregnancy, I was granted maternity leave but was told I wouldn't receive any pay during this period. In Kenya, women are entitled to paid maternity leave, while in America, employers are not mandated to provide paid maternity leave. What can I do?

Maria

Thika

Dear Maria,

I understand your predicament regarding the conflict between the employment laws of Kenya and the United States. You work remotely for an American company, but you are based in Kenya, where maternity leave entitlements differ significantly from those in the US.

Under Kenyan law, the Employment Act, provides for maternity leave. Specifically, Section 29 of the Employment Act states that a female employee is entitled to three months of maternity leave with full pay, and it is unlawful for an employer to dismiss a female employee or terminate her employment on account of her pregnancy or for taking maternity leave.

Read: The case for longer maternity leave in Kenya; a young mother's take

Kenya is a signatory to various international labour conventions, including the International Labour Organisation Convention No. 183 on Maternity Protection, which reinforces the right to maternity leave and protection against dismissal due to maternity. While the US is not a signatory to this convention, Kenya’s commitment to these standards strengthens your position.

In the United States, the Family and Medical Leave Act provides for up to 12 weeks of unpaid leave for certain employees but does not mandate paid maternity leave.

This stark contrast in legal provisions creates a conflict of laws situation. Given that you reside and work in Kenya, albeit remotely for an American company, the principle of territoriality in employment law may apply. This principle suggests that the laws of the country where the employee performs their work (Kenya, in this case) should govern employment rights and obligations.

Read: Extended maternity leave a lifesaver for working moms

While there may not be direct Kenyan case law addressing remote work for foreign employers, analogies can be drawn from cases where local labour laws were upheld for employees working within Kenyan borders.

For instance, the case of Kenya Union of Domestic, Hotel, Educational Institution and Hospital Workers Vs Board of Management Makimeny Secondary School upheld the rights of employees under Kenyan labour laws, emphasising the protection and enforcement of maternity leave entitlements. Similarly, in Mokaya v Kithure Kindiki & Associates, the court reinforced that female employees are entitled to maternity leave with full pay under the Employment Act, and any deviation constitutes a breach of statutory duty.

Read: What the law says about maternity leave

Initially, consider negotiating with your employer, presenting them with the relevant Kenyan legal provisions and the potential conflict of laws. Employers often prefer to resolve such issues amicably to avoid legal complications.

Examine your employment contract for any choice of law or jurisdiction clauses that may specify the governing law. However, even with such clauses, Kenyan courts may still apply local labour protections due to the public policy interest in protecting employee rights.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).