New York Employment Lawyer Blog

In Millea v. Metro-North Railroad Company (Aug. 8, 2011), the Second Circuit Court of Appeals (Federal Court covering New York) found that a "material adverse employment action" in the context of a Family Medical Leave Act ("FMLA") retaliation claim should be broadly defined to include any action "that is likely to dissuade a reasonable worker in the plaintiff's position from exercising his legal rights."

The Plaintiff, an employee who took intermittent FMLA leave for panic attacks related to post traumatic stress disorder, alleged that his employer retaliated against him for taking FMLA leave by; 1) placing a notice of discipline in his employment file for a year; 2) requiring him to update his FMLA certification; 3) creating a work environment that motivated him to transfer to a lower paying job; 4) delaying approval of his bid for the lead custodian position; and 5) subjecting him to heightened managerial surveillance.

The trial court had instructed the jury that an "adverse employment action" is defined as a "material adverse change" in the employee's terms and conditions of employment, such as "termination, demotion, loss of benefits, or significantly diminished responsibilities." Following these instructions, the jury found that the Plaintiff failed to show that an adverse employment action took place.

However, the Second Circuit disagreed, and held that an adverse employment action within the context of an FMLA retaliation claim was not limited to a material change in the terms and condition of employment, but rather also encompassed any action "that is likely to dissuade a reasonable worker in the plaintiff's position from exercising his legal rights." This means that employees bringing FMLA retaliation claims now have a much lower threshold to meet.

If you believe that your employer retaliated against you for exercising your rights under the FMLA, it's smart to immediately contact a New York City employment attorney to preserve your rights.

As a matter of law, neither Federal nor New York State law requires that an employer provide its employees with paid vacation, personal or sick time off. These are benefits generally provided at the discretion of the employer, or based upon an employee contract or collective bargaining agreement. Therefore, there is no "correct" or "proper" method by which an employer may provide its employees with sick, personal, and vacation time.

However, while there is no requirement for an employer to provide such benefits to its employees, once it agrees to do so, the employer must abide by the terms of that agreement. "[A]n employee's entitlement to receive payment for accrued, unused paid time off . . . is governed by the terms of the employer's publicized policy." Kolesnikow v. Hudson Valley Hosp. Ctr. (S.D.N.Y. 2009). In other words, "all that is required by [New York Labor Law] section 198-c is that an employer abide by the terms of his agreement to provide benefits." Glenville Gage Co. v. Industrial Bd. of Appeals (1979).

Such agreements need not even be in writing. They can be established through credible evidence of an employer's longstanding policy and practice or unwritten agreement with employees.

In addition, as I stated in a previous blog entry, pursuant to New York Labor Law § 195, employers are required to notify employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours. Nevertheless, a failure by an employer to provide such written notification will not relieve the employer from its obligations under that policy, notwithstanding the fact that it was not put in writing.

The Family and Medical Leave Act (FMLA) provides employees with the right to take an unpaid leave for up to twelve weeks following the birth or adoption of a child. However, to be eligible for leave under the FMLA, an employee must have worked for her current employer for a minimum of twelve months. In addition, such leave is only available during the first twelve months following the birth or adoption, not before the baby is born or adopted.

Although the FMLA only applies to employees that have worked for their employer for at least twelve months, there are certain circumstances where a pregnant employee that has worked for less than twelve months may nonetheless be entitled to a leave of absence under the Americans with Disabilities Act (ADA).

The ADA requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities. Although pregnancy is typically not a disability within the meaning of the ADA, severe medical complications resulting from that pregnancy can constitute a disability.

Courts have repeatedly distinguished between a normal, uncomplicated pregnancy and a complication or condition arising out of the pregnancy. Some women experience complications as a result of the pregnancy or exacerbation of already existing impairments such as diabetes, back impairment, high blood pressure, and depression. Courts analyzing whether or not such complications may support an ADA claim have been increasingly receptive to the premise that certain physiological pregnancy consequences, if sufficiently severe, may indeed give rise to a protected disability within the meaning of the ADA.

The Equal Employment Opportunity Commission (EEOC) even stated that an "otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship" on the employer.

Lastly, although the ADA typically requires employees to propose an anticipated return date at the time the employee requests the leave, courts have found that pregnancy-related disabilities are unique. Unlike other illnesses of permanent or indefinite duration, disabilities that are diagnosed as exclusively pregnancy-related could reasonably be expected to subside at the conclusion of the pregnancy.

For employers and employees working in New York City, it's important to remember that the New York State Human Rights Law and New York City Human Rights Law also require that employers make reasonable accommodations to otherwise qualified individuals with disabilities.

All employers should consider having a pregnancy discrimination attorney examine their company's maternity leave policies as well as their general disability leave policies to ensure compliance with Federal, New York State, and New York City laws.

The FMLA applies to private employers that employ 50 or more employees for each working day during 20 or more workweeks in the current or preceding calendar year. For public employers, which include federal and state governmental employers, the number of employees doesn't matter.

To be covered by the FMLA, a worker must be employed for at least 12 months at the time the leave begins (the 12 months need not be consecutive), complete at least 1,250 hours of service with the employer during the 12-month period immediately preceding the leave, and be employed at a work site at which the company employs at least 50 employees or work within a 75-mile radius of a work site that employs 50 employees.

Under the FMLA, eligible employees are entitled to unpaid leave during any 12-month period for one or more of the following reasons: (1) the birth of a child and to care for the child, (2) the placement of a child for adoption or foster care, (3) to care for an immediate family member (spouse, child, or parent) who has a serious health condition requiring inpatient care or ongoing treatment, (4) their own serious health condition that requires inpatient care or ongoing treatment, (5) because of any "qualifying exigency" for a spouse, child, or parent arising out of active duty in the armed forces in support of a contingency operation (or being notified of an impending call or order to active duty), or (6) to care for a covered service member with a serious injury or illness if the employee is the spouse, child, parent, or next of kin of the service member ("military caregiver leave").

Proper Notice

To exercise one's rights under the FMLA, an employee must request leave and, in doing so, provide the employer with notice that he is requesting leave for a qualifying reason. That doesn't mean that the employee is required to specifically mention the FMLA. It does, however, require that employee to indicate the specific reason for his request. Merely calling in "sick" is not enough. Moreover, unless the need for leave is not foreseeable, the employee is required to provide notice as soon as possible under the circumstances.

But how much notice is necessary? Generally, the statute requires that an employee give advance notice (typically 30 days) but that requirement is examined on a case-by-case basis, and whether the notice was reasonable will depend on whether the need for leave was foreseeable.

Before any final decisions are made with respect to an employee's request for FMLA leave, it is recommended that you first get the advice of an FMLA attorney.

If an employee will be absent for more than a certain period of time, many employers require that employee to submit a doctor's note to avoid possible sick-leave abuse. However, it is relatively easy these days to procure a doctor's note from one's personal physician or even a friend. It is important that employers take the time to consider the steps they want to take to verify the doctor's note, and then apply those policies consistently to avoid potential discrimination claims.

Employers should establish a policy that requires employees to provide a doctor's note affirming that the employee was medically unfit for work if they were absent for a certain period of time. If the doctor's note seems intentionally vague, employers should always request additional information. Employers can legally ask for more information to verify whether the employee was actually not able to perform the essential functions of his or her work.

Also, as long as the employer pays the costs, employers always have the option of asking employees to be examined by a doctor of the employer's choosing.

However, before taking any action, employers must read and review all contractual agreements to which the employee is a party, including collective bargaining agreements. If the employee is covered by an agreement or contract, the terms of that agreement could dictate the employer's actions.

Lastly, it is always recommended that employers consult with an FMLA attorney to ensure that they do not violate federal and state laws including the Family Medical Leave Act ("FMLA") and/or the Americans With Disabilities Act ("ADA"). Each law has specific rights and obligations for employers when it comes to managing health-related absences.

On June 22, 2010, the U.S. Department of Labor ("DOL") issued an Administrative Interpretation Letter clarifying who may take time off under the Family and Medical Leave Act ("FMLA") to care for a newly born, adopted, or sick child. While not law, DOL regulations and DOL's interpretation of those regulations are accorded certain deference by the court.

The FMLA generally allows employees to take up to 12 work weeks of unpaid leave during any 12-month period "[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter," "[b]ecause of the placement of a son or daughter with the employee for adoption or foster care," and to care for a son or daughter with a serious health condition.

According to the DOL, the terms "son or daughter" should be interpreted more broadly than the traditional biological or adoptive sense, concluding that employees who have no biological or legal relationship with a child may nonetheless stand "in loco parentis" to the child and be entitled to FMLA leave.

In order for an employee to establish an "in loco parentis" relationship with a child, the employee need only establish that he or she provides day-to-day care for the child or financial support. It is not necessary that the employee provide both day-to-day care and financial support. These employees can include companions of biological/adoptive parent, close neighbors, aunts, uncles, cousins and close friends. Virtually anyone who provides day-to-day care or financial support should be able to qualify.

It is important to always get the advice of an FMLA attorney when determining whether you are entitled to FMLA leave.