New York Paid Family Leave And FMLA Retaliation Lawyer
The Family and Medical Leave Act (FMLA) provides job protection for up to twelve weeks each year for eligible employees. Workers can use FMLA for parental leave, for a serious health condition, or to care for an immediate family member with a serious health condition. In addition to FMLA, New York residents are covered under the New York State Paid Family Leave Act (NYPFL).
You have the right to take paid family leave without facing retaliation at work. NYPFL and FMLA retaliation violates the law. Your employer cannot refuse to authorize your leave, discourage you from taking leave, or factor in your leave when making employment decisions. If your rights have been violated, a workplace retaliation lawyer can help.
Contact New York retaliation attorney Charles Joseph for a free consultation to protect your rights today. Charles Joseph has over twenty years of experience with retaliation cases, and his firm has recovered more than $140 million for clients. Reach out today for a free, confidential consultation.
Know Your Rights – What is FMLA Retaliation?
The Family and Medical Leave Act of 1993 covers qualifying employees who work for eligible companies. Before taking FMLA leave, employees must make sure that they qualify.
Keep in mind that FMLA provides job protection, but it does not provide paid leave. However, New York’s new Paid Family Leave Act provides paid leave.
What is FMLA retaliation? Your employer cannot treat you unfavorably for requesting or using FMLA or NYPFL.
Qualifying for FMLA
The Family and Medical Leave Act applies to all public agencies, all public and private K-12 schools, and companies with 50 or more employees.
In order to take FMLA leave, employees must have worked for their employer for at least 12 months (a minimum of 1,250 hours in the most recent 12 months), and work at a location where the company employs 50 or more employees within a 75 mile radius.
Employees can use FMLA to cover the following:
- The birth and care of the newborn child of an employee
- Caring for an adopted child or foster care
- A serious health condition that makes the employee unable to work
- Caring for an immediate family member, such as a spouse, child, or parent, who has a serious health condition.
- Caring for a service member with a serious injury or medical condition, or covering a “qualifying exigency” caused by the foreign deployment of a spouse, son, daughter, or parent.
Both men and women are eligible to take FMLA for parental leave.
Examples of FMLA Leave
Employees who qualify under the Family and Medical Leave Act can take leave for several reasons. The leave does not have to be continuous, but employees cannot take more than 12 weeks of leave during a 12 month period.
- A new father who has been at a large company for three years uses FMLA to take three weeks of unpaid leave for the birth of his child. Although the leave is unpaid, he can combine paid sick or vacation time with FMLA to cover the cost of the leave.
- After learning her father has emphysema, a teacher takes twelve weeks off under FMLA to help care for her father.
- A pregnant woman dealing with medical complications from her pregnancy takes FMLA for the last two weeks of her pregnancy while she is on bedrest, and then uses the remaining 10 weeks to care for her newborn and recover from birth.
- After receiving a cancer diagnosis, a government employee asks to take time off during the workweek to receive chemotherapy treatments. He works with his agency to arrange for Fridays off for the next three months for his medical treatments.
- The parent of a service member takes FMLA to care for her son, who recently returned from a deployment with a serious injury. Military Family Leave under FMLA can be for up to 26 weeks.
Military Family Leave
FMLA also provides special protections for military family leave. Eligible employees can take 12 weeks of FMLA leave for any “qualifying exigency” caused by the foreign deployment of a spouse, son, daughter, or parent.
Qualifying situations include making alternative childcare arrangements for the deployed service member’s child, attending military ceremonies or briefings, or making financial or legal arrangements for the service member’s absence.
FMLA also provides protections for military caregivers. Eligible employees can take up to 26 weeks of leave to care for a covered service member who has a serious injury or illness. The service member must be the spouse, child, parent, or next of kin of the caregiver.
Employees who would like to take FMLA leave must comply with their employer’s customary requirements for requesting leave. They may also be required to provide enough information for their employer to determine whether the Family and Medical Leave Act applies to the leave request.
In general, employees should request leave 30 days in advance when they can anticipate the need for leave. For unforeseeable leave requests, employees should provide notice as soon as possible.
Employers are also required to provide notice about the FMLA. Covered employers must display a general notice about the FMLA and notify employees about their eligibility status.
If employers fail to follow the notice requirements, this may constitute an interference with, restraint, or denial of the employee’s FMLA rights. Employees can file a complaint with the Wage and Hour Division of the Department of Labor for compensation and benefits lost because of this violation, as well as actual monetary losses.
New York State Paid Family Leave
In addition to federal parental leave, New York residents can also take paid family leave under New York State Paid Family Leave (NYPFL), which took effect on January 1, 2018. The new law provides additional benefits to FMLA, most notably the fact that it is paid leave.
NYPFL covers parental leave to care for a child or recover from childbirth. The law also allows employees to care for a loved one with a serious health condition or help when a family member is called to active military service.
NYPFL Increases In 2021
As of 2019, NYPFL provides up to 10 weeks of paid leave. The amount of paid leave will increase to 12 weeks in 2021. You are entitled to receive 50% of your salary up to $652.96 per week. However, you may not collect unemployment insurance during your leave.
Employees must provide 30 days notice before taking the leave. If that is not possible, the notice must be as soon as possible. The notice should explain what type of leave is necessary and when and how long you anticipate being out on leave.
Your employer should provide you with an application, which will be submitted to your employer’s paid family leave insurance carrier. Your employer may request additional documentation, such as proof of the birth.
NYPFL Retaliation Protections
Your employer cannot discriminate or retaliate against you for taking leave under NYPFL. You are entitled to job protection, meaning you cannot be fired and you must be reinstated to the same or an equivalent position.
If your employer wrongfully refuses your request for leave or terminates you because you sought leave, you have protections. An administrative law judge with the Workers’ Compensation Board can order your employer to reinstate you, pay any lost wages, pay attorney’s fees, and pay up to $500 in penalties.
You are entitled to benefits under the NYPFL regardless of your immigration status and regardless of the number of workers your employer employs. You are covered by this law even if you are a domestic worker who is the only person working for your employer.
NYPFL and FMLA
You are allowed to take leave under both the FMLA and the NYPFL. However, your employer can require you to take time off for the same event concurrently. Your employer must notify you of this requirement before your leave starts.
You cannot take leave under the NYPFL and short-term disability at the same time. You must take one and then the other. Also, you cannot take more than 26 weeks of combined short-term disability and NYPFL leave in a 52-week period.
NYPFL and FMLA Retaliation
Employees who take FMLA or NYPFL leave are protected against retaliation from their employers.
The law entitles eligible employees to return to their jobs under the same conditions as if they had not taken leave. The FMLA also states that employers must continue group health insurance coverage during the leave period.
Employers cannot interfere with or deny an employee’s rights to leave. They also cannot discriminate against any person for reporting or complaining about an unlawful FMLA practice.
It is illegal for employers to retaliate against employees who take leave under the FMLA or NYPFL, and they cannot fire employees for exercising their rights.
Prohibited conduct includes:
- Refusing to authorize leave when an employee is eligible under the law
- Discouraging employees from taking leave
- Altering an employee’s work hours to void their eligibility for rights
- Counting leave as an absence for attendance policies
- Counting a request for leave or leave itself as a negative factor in making employment decisions like hiring, promotions, or raises.
If your employer has violated your FMLA or NYPFL rights, you can contact a retaliation lawyer for a free consultation.
How to File a Complaint For FMLA and NYPFL Violations
Covered employees can file a complaint if their employer has violated their federal or state leave act rights. This can include withholding information about the law, refusing to authorize leave, or discriminating against employees who take a leave.
The Wage and Hour Division of the U.S. Department of Labor administers and enforces the Family and Medical Leave Act. You can file a FMLA complaint with the Wage and Hour Division, which will investigate. If the Wage and Hour Division cannot resolve the violation, they can force your employer to comply through the court system.
Employees may also be able to bring a private civil action against an employer for FMLA violations. Generally, employees have two years from the date of the violation to bring a claim.
Employers cannot terminate your employment, reduce your pay or benefits, or discipline you in any way for requesting or using NYPFL. Before filing a complaint, you must ask your employer to reverse their decision and wait 30 days for them to comply.
If your employer does not comply within 30 days, you can file a complaint with the Workers’ Compensation Board. The board will schedule a hearing. An administrative law judge can order your employer to reinstate you, pay any lost wages, pay attorney’s fees, and pay up to $500 in penalties.
A New York FMLA lawyer can help protect your rights.