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Frequently Asked Questions (FAQ)

Frequently Asked Questions

Does the law require employers to provide paid parental leave?

Currently, the federal Family and Medical Leave Act (FMLA) only requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave when an employee’s child is born or adopted.  In order to be eligible for this leave, you must have worked for your employer for at least 12 months and in the current or previous year.

A number of state and local laws, including in New York and California, require employers to provide some paid parental leave to employees under certain conditions.  If you work in one of these states and are being denied paid leave by your employer, you can contact us here with questions.

In addition, employers may voluntarily provide paid leave.  However, it is unlawful for an employer to provide paid leave to employees in a discriminatory manner.  Doing so violates both federal and state law, and even the Constitution’s guarantee of equal protection in the case of public employees.  See the FAQs below for more information.

Do you have more questions? Contact us here.

Does the law require employers to provide equal parental leave to men and women?

Yes.  Leave that is provided for parenting must be provided on equal terms to men and women, regardless of whether it is paid or unpaid leave.  However, birth mothers may receive an additional amount of leave for them to recovery from childbirth, which is typically 6 weeks (or 8 weeks in the case of a Caesarian delivery).  

A parental leave policy is unlawful sex discrimination if the difference in paid leave provided to birth mothers and fathers is greater than the time that it ordinarily takes a birth mother to recover from giving birth, which usually is six weeks (or eight weeks in the case of a Caesarian delivery).  For example, if an employer allows all mothers 12 weeks of paid parental leave but only allows fathers 3 weeks, the employer may be violating the law because the difference in the paid leave is greater than the 6 weeks it ordinarily takes a birth mother to recover from childbirth.  

If an employer’s leave policy provides leave for caretaking or “baby bonding” purposes, the leave must be provided on a gender-neutral basis to both parents, regardless of sex.

For more information, you may also review the U.S. Equal Opportunity Commission’s Guidelines for Pregnancy Discrimination and Related Issues.

Do you have more questions? Contact us here.

Does the law require employers to provide adoptive parents equal leave as birth parents?

Employers may provide employees who give birth time paid leave to physically recover from childbirth, even if that same leave is not given to other parents.  

However, a parental leave policy may be unlawful sex discrimination if it provides caretaking or “baby bonding” leave only to mothers or in a greater amount to mothers than fathers, regardless of whether they are a birth or adoptive mother.    

Do you have more questions? Contact us here.

 

Can employers retaliate against employees who become pregnant or take parental leave?

No. If an employer retaliates against an employee because they became pregnant or took parental leave or other time off to care for a child or other family member, the employee may have a claim under federal or state anti-discrimination laws, or federal the Family and Medical Leave Act or similar state leave laws.  

For example, if a female employee was denied a promotion or treated less favorably after she had a child or took parental leave because her employer assumed that she would be unable to juggle work and family responsibilities, she may have a discrimination and/or retaliation claim.  Similarly, if an employer treats women who have children less favorably than men who have children, the employer may be unlawfully discriminating.  In addition, it would violate the law if an employer tries to stop a male employee from taking parental leave based on a sex-based stereotype that men should not take parental leave or as much leave, or punishes the male employee through lower wages, denial of promotions, disciplinary action, or harassment.   

For more information, you may also review the U.S. Equal Opportunity Commission’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.

Do you have more questions? Contact us here.

If I believe my employer has discriminated against me, what should I do to enforce my rights?

You should contact a lawyer if you believe your rights have been violated.  Outten & Golden handles discrimination, retaliation, and employee benefits claims and would be happy to do a free consultation.  

Before you can file a lawsuit to enforce your rights, you may be required to file a “charge” of discrimination with a federal, state or local agency.

Under Title VII, before you may file a lawsuit you must first file a charge with the Equal Employment Opportunities Commission (EEOC).  Depending on the state in which you reside, you either have 180 or 300 days from the adverse action to file a charge (in most states the deadline is 300 days).

In addition, certain states have their own laws that may allow you to file a complaint within a longer period of time than Title VII allows.  For example, under the New York State Human Rights Law and New York City Human Rights Law, you have three years from the adverse action to file an action.  Many states do not require you to file a charge of discrimination before filing a lawsuit.

Do you have more questions? Contact us here.

 

 

Do you represent only individuals, classes, or both?

Both. Outten & Golden represents workers who have individual disputes with their employers and represents workers in class action lawsuits.  For example, we represent individuals in everything from severance negotiations, settlements of discrimination claims, and litigation.  We represent classes of people who were denied parental leave or discriminated against for taking parental leave or because of caretaking responsibilities, which sometimes can involve helping thousands of workers promote and enforce their rights.

Do you have more questions? Contact us here.

 

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