For some New York workers who have welcomed (or plan to welcome) new additions to their families, there’s good news. The rights and benefits available under New York State law have gotten a lot stronger in the past 12 months. The initiative, as Gov. Hochul put it, seeks to keep families from having “to try to make that tough decision between having a paycheck or having to spend time with their kids.” Contrary to certain antiquated gender-based stereotypes, a father’s time bonding with his new baby is just as valuable and beneficial as the time that baby spends with his/her mother. But even in recent years, research has shown that roughly one-third of new New York dads take no time off from work. While the state is working to inform dads of their legal rights, sometimes employers can be a hindrance. If you believe that your employer engaged in illegal misconduct regarding your paternity leave, you should get in touch with a New York family leave lawyer.
Harmful stereotypes regarding paternity leave remain stubbornly entrenched, even today. Less than two years ago, U.S. Transportation Secretary Pete Buttigieg became the subject of headlines due to his parental leave.
That summer, Buttigieg and his husband welcomed baby twins. Buttigieg, like many new dads, took a period of parental leave from work. However, because the secretary’s leave overlapped with a worldwide supply chain crisis and Congressional debate regarding President Biden’s infrastructure proposal (“Build Back Better,”) Buttigieg received criticism for taking leave.
As the secretary pointed out in the fall of 2021, many men married to (or partnered with) women face especially strong headwinds when they seek to access parental leave. Buttigieg noted that many workplace cultures assume that the mother will handle all the childcare needs, so a father taking leave from his job becomes “frowned upon.” Seemingly reinforcing the stigma that parental leave is really only for women, former Vice President Pence called the secretary’s absence “maternity leave.”
Here in New York, we have protections for new mothers and fathers, and those protections got even stronger recently. Earlier this year, a new state policy established access to 12 weeks of paid parental leave for more than 10,000 state government workers. The policy, which initially included only non-unionized workers, covered parents — mothers and fathers — who gave birth, adopted or welcomed a new foster child.
Earlier this month, that expansion got a lot bigger. On June 13, the governor announced an expansion that covered a wide array of unionized state government workers. The state successfully negotiated contracts with several unions, which meant that more than 80% of all New York State workers had access to the benefit of 12 weeks of paid parental leave. New York employees taking paid family leave in 2023 will receive 2/3 (67%) of their average weekly wage.
Nearly 3/4 of Working Fathers Get Two Weeks of Leave… or Less
Of course, history has shown that new fathers may be unaware of the benefits available to them, or feel reluctant to use those benefits. As part of an effort to educate new fathers, the NYS Department of Labor launched a marketing campaign aimed at fathers. The campaign noted that 72% of new fathers got only two weeks (or less) off work after having a new baby.
New dads also have expanded protections when they suffer adverse job repercussions after they take leave. Last November, New York State enacted a law barring employers from discriminating or retaliating against any worker for using legally-protected forms of leave, such as parental leave, sick leave, or leave due to caregiver responsibilities.
That law also restricted employers in how they administer attendance policies. Specifically, the law said that if an employer utilized a “no-fault” attendance policy, that employer cannot count the use of protected leave against an employee under that policy.
The Twin Hazards of Interference and Retaliation
Under federal law’s Family and Medical Leave Act, your employer may not interfere with your right to use paid family leave and may not retaliate against you after you exercise that right. New York’s leave laws similarly prohibit employer interference and retaliation. Interference occurs whenever your employer — through whatever means — “prevented or otherwise impeded” your ability to exercise the rights granted by the leave law.
Retaliation, as the name implies, involves circumstances where an employee exercised his rights under the leave law and later endured some form of adverse employment action as a result. Actually taking leave counts as an “exercise” of FMLA rights, but “exercise” is broader than just that. Federal courts have in the past theorized that workers could pursue viable claims of retaliation for other reasons, such as requesting or applying for FMLA leave.
Adverse employment actions sufficient to trigger viable retaliation claims are varied. Those actions can include terminations, demotions, suspensions, invocation of attendance policies, denial of promotions, reduction of hours, reduction of pay, and more.
Some of these rights granted by New York State law are new, but court cases involving the FMLA are instructive. In 2021, the Southern District of New York addressed a New York City public schoolteacher’s FMLA interference and retaliation case. Proving interference, the court explained, required establishing five things:
- that the worker was an eligible employee under the law;
- that the defendant met the statutory definition of an “employer”;
- that the worker was entitled to leave under the law;
- that the worker gave notice to the employer of his/her intention to take leave; and
- that the worker was denied benefits to which s/he was entitled under the law.
Proving retaliation, on the other hand, required demonstrating that:
- the worker exercised rights protected under the law;
- the worker was qualified for [the] position held;
- the worker suffered an adverse employment action; and
- the employment action occurred under circumstances giving rise to an inference of discriminatory intent.
Of course, all the evidence of employer misconduct in the world won’t get you to a successful outcome if you don’t establish that you were an “eligible” employee under the law. Under the FMLA, you must have been employed for at least 12 months by the employer from whom you’re requesting leave, and you must have worked at least 1,250 hours with that employer in the 12 months before the beginning of your medical leave to be eligible.
Under New York State law, the eligibility hurdles are not as high. New York says, if you’re a full-time employee, you must have worked “a regular schedule of 20 or more hours per week” for at least 26 consecutive weeks to be eligible. Part-time workers are eligible “after working 175 days, which do not need to be consecutive.”
Like the governor said, you shouldn’t have to sacrifice irreplaceable bonding with your newborn to ensure you don’t lose your job or go broke. You also shouldn’t have to deal with discrimination or retaliation if you decide to avail yourself of protected forms of leave… but too many New York workers face these problems every day. If you’ve encountered interference with your statutory leave rights or discrimination/retaliation based on your exercise of those rights, the diligent New York family leave attorneys at Phillips & Associates are here to help. Our team has spent many years helping workers mistreated for availing — or seeking to avail — themselves of the rights and protections granted by the law. Contact us online or at (866) 229-9441 to set up a free and confidential consultation to find out how we can help you.