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The fine line between legal and illegal in the workplace

Posted by Scott M. Peterson | Jun 13, 2015 | 0 Comments

“My supervisor is generally disrespecful towards me, and told me that dealing with my kids is a weekend issue, not a workplace issue.  Is this legal?”

This question, a very commone one, raises two important issues. The first is that New York is what is known as an “at-will” employment state – meaning that your employer can hire and fire “at-will”, for any reason or no reason, just as you can quit your job “at will”, for any reason or no reason at all.  We often tell potential clients that it is not illegal for the owner of a company to hire an unpleasant/disrespectful/generally miserable employee to supervise other employees. Unless the supervisor is treating you poorly for illegal reasons (i.e. race, gender, disability, age, medical condition), his conduct is probably not illegal.  That being said, the question as posed here also raises another issue, which is protection for caring for your children. While New York and federal employment laws do not generally provide a right to miss work for ordinary child care, they do provide protection for employees who need to take time off of work to care for a child with a “serious medical condition.”  The Family and Medical Leave Act (“FMLA”) in particular provides protection for employees of larger companies (more than 50 employees in the private sector) or public agencies or schools. The FMLA allows a covered employee to take up to 12 weeks of protected leave during a year, provided the employee has worked enough leading up to the leave, for among other things to care for a child with a serious medical condition (a condition requiring continuing treatment or hospitalization, generally).  Once an employee's leave falls within the protections of the FMLA the employer is not permitted to even consider this protected leave as having occurred. So, if the employer were to discipline an employee for “excessive absences” (we see this all the time), and 3 out of 5 of those absences were protected by the FMLA, the employer would be violating the law and the employee would have a potential claim.  The intersection of state and federal employment laws is complex, and the line between legal and illegal conduct can be fine. It is important to speak with an experienced employment attorney if you have any suspicion that your employer may have violated the law.

  Scott Peterson Scott by Scott Peterson | | Connect with me:

Representing plaintiffs in employment and serious injury matters.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.


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