Employment Attorney: An Overview of the Rights of NY Working Parents
With Laura Rodríguez, Esq., an Employment Associate at Pechman Law Group, Lauren A. Tetenbaum has compiled an overview of working parents’ rights in New York as of June 2021. The information herein does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. For legal advice, please contact Laura. For additional support, please contact Lauren.
Know your worth.
As of January 2020, employers in New York are no longer legally allowed to ask about salary history. The salary history ban was passed in recognition of the gender pay gap and the hope is that banning questions about pay will help break the cycle of unfair and discriminatory compensation. Women should feel empowered to negotiate competitive salaries without worrying about their previous pay rates. If a man receives higher pay than a woman performing the same work for the same employer, it may be a violation of the Equal Pay Act.
Know how you should be treated once you reveal you are pregnant.
It is illegal under federal, New York State, and New York City Law for an employer to discriminate against an employee due to pregnancy. If you are treated differently after announcing your pregnancy, you may have a legal claim and should document all instances of discriminatory treatment, including any comments made (even if in a joking manner) about your ability to work or return to work following the birth, or if you are no longer included in projects or opportunities.
If you have health complications during pregnancy or childbirth, your employer may be required to provide you with reasonable accommodations to be able to continue doing your job. If your employer refuses to provide a reasonable accommodation, you may have a viable legal claim. Some examples of reasonable accommodations may be access to a reserved parking space if you cannot walk long distances, permission to sit when working in a role that usually requires standing, or limitations on lifting heavy objects.
If you are in the process of looking for a new job, know that you are not required to disclose that you are pregnant (or already have children). It is also unlawful for employers to discriminate against you in the interview process because you are pregnant or are a parent. However, the unfortunate truth is that some employers do use that information to make discriminatory hiring decisions (whether they do so consciously or not) and such discrimination is often hard to prove. You may wish to wait until you receive an employment offer to disclose your pregnancy or childcare responsibilities. That way, you can openly discuss topics like parental leave options before deciding whether to accept the position. Note that most employees become eligible for New York State’s Paid Family Leave Act after having worked for 26 consecutive weeks. Once you have an offer, you can use the fact that they want to hire you as leverage to negotiate for company-sponsored leave benefits or flexible schedules as needed. The new employer’s response will help you determine whether it’s the right job for you to accept.
Know how much and what kind of parental leave you are entitled to take.
Most New York employees are entitled to 12 weeks of leave via New York State’s Paid Family Leave Act, which became law in 2016 (visit paidfamilyleave.ny.gov to learn more, including how to apply). The Act allows parents to take job-protected, paid time off to bond with their baby within the first 12 months of the baby’s life. Leave is also available for parents to bond with newly adopted children or foster children. Note that some employers provide workers with additional parental leave beyond the legally required 12 weeks. Additionally, birth mothers may be eligible for short-term disability benefits, which cannot be taken at the same time as New York Paid Family Leave benefits; this means that your parental leave benefits could be extended for more than 12 weeks.
You have the right to decide when to use the benefits you are eligible for (though you cannot take more than 26 weeks of combined short-term disability and Paid Family Leave in a 52-week period). You may also choose to use vacation days or unpaid leave to extend your time off from work after giving birth or welcoming a newly adopted child or foster child into the home. If you feel that your request for additional leave is unfairly denied by your employer, or you are treated differently than others who ask for time off for non-caregiving reasons, you may have a viable claim for discrimination.
Note that New York State law recognizes the importance of having both parents bond with their new child. Mothers and fathers, including same-sex parents, are eligible for job-protected, paid time off via New York State’s Paid Family Leave Act. A non-birthing parent is entitled to a full 12-weeks off at any time during the baby’s first year of life. If you are being pressured not to take time off, or told that you are ineligible for paid leave, you may have a viable discrimination claim.
Know how working parents should be treated.
Parents are entitled to the same treatment as their co-workers who do not have children. New York State and New York City law protect against familial status and caregiver discrimination. If you are not getting the same opportunities as your colleagues because you have parent or caregiver responsibilities, you may have a viable claim for discrimination.
New York State law specifically protects parents by prohibiting familial status discrimination, which means your employer cannot discriminate against you because you have children under the age of 18. The New York City Human Rights law is even broader, protecting workers with varying caregiving responsibilities (not just parents with childcare needs, but anyone who provides care to a parent, sibling, spouse, or other person who lives with and relies on the employee to meet their needs of daily living). You may have a viable claim for discrimination if your employer makes employment decisions based on your caregiver status, e.g. decides not to give you a promotion because you have kids to take care of at home.
Due to the COVID-19 pandemic, many employers are choosing to adopt flexible work models. It may be a good time to try to arrange a work schedule that allows you the flexibility to care for your children while still completing all your work responsibilities. If your request is denied and you believe that you are being discriminated against due to your parental or caregiving responsibilities, you may have a viable claim for discrimination.
If you think you are being penalized because of your flexible work schedule needs, try to document what is happening. If other employees are allowed to change their schedules for non-caregiving reasons (e.g. to complete an optional training program or make time for continuing education classes) and are not penalized, make note of the differential treatment. You can then raise your concerns and share the documentation with Human Resources and/or contact legal counsel.
Know that you have the right to advocate for more family-friendly workplace policies.
If you have concerns about workplace policies, you should feel comfortable raising them with the appropriate person(s) at work (e.g. your manager or Human Resources). If you feel that you are treated differently as a result, you may have a viable legal claim. You should document any incidents of differential treatment and raise them with Human Resources and/or contact legal counsel.
Furthermore, per the National Labor Relations Act, it is unlawful for private sector employers to prohibit employees from discussing wages and working conditions.
Knowledge is power: it is important to share and access information so that you can demand appropriate compensation for your work and advocate for pay equity, parental leave, and the flexibility you deserve.