N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 380-8.2

Current through Register Vol. 46, No. 42, October 16, 2024

Section 380-8.2 - Discrimination or retaliation

(a) The date of the employer's response to a formal written request under section 380-8.1(b) of this Subpart, or the day after 30 days after the date of the employee's formal request if no such response has been provided, shall be the date as of which the employee then has 2 years to file a complaint under section 120 of the Workers' Compensation Law.

(b) An eligible employee who wishes to file a complaint under section 120 of the Workers' Compensation Law shall do so in the format prescribed by the chair.

(1) An employee complaint under this section must be served on the employer at the time it is filed with the board, and must contain:

(i) date upon which the formal request under section 380 8.1(b) of this Subpart was filed with the employer and the board;

(ii) proof of the employee's receipt of family leave benefits or claim for family leave benefits, if family leave benefits were not received;

(iii) information regarding the manner in which the employer has failed to comply with section 203-b of the Workers' Compensation Law; and

(iv) any other information that the chair deems relevant in order to process such complaint.

(2) The board will not consider a complaint under this section unless the formal request under section 380-8.1(b) of this Subpart has been received, and unless either the time that the employer is given to respond under section 380-8.1(d) of this Subpart has passed, or an employer response has been received.

(3) A complaint that does not include the information required under paragraph (b)(1) of this section may be rejected by the board.

(c)

(1) After the board has determined that a complaint has been received that meets all of the requirements of subdivision (b) of this section, the board shall schedule hearings, including a preliminary conference.

(2) The employer shall file an answer to the employee's complaint within 30 days receipt of notice from the board. Failure of an employer to file an answer may result in waiver of defenses to the complaint.

(d) The fact that an employee was ineligible to receive family leave benefits at the time he or she made such claim may serve as a basis to disallow a discrimination or retaliation claim under section 120 of the Workers' Compensation Law.

(e) In evaluating a complaint brought under this section, the board may consider whether the employer's actions are related to the taking of family leave or if the employer's actions would have affected the employee if he or she was not on family leave. For example, if a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours. If an employee is laid off during the period of family leave, the employer must be able to demonstrate that the lay-off is not in retaliation for filing a claim for family leave benefits.

(f) The absence of the eligible employee from the workplace shall not be considered a valid or legitimate basis for an employer's failure to reinstate, or for any other action taken by the employer in violation of the provisions of section 203-b of the Workers' Compensation Law.

(g) An employee's claim for family leave benefits that has been falsified may be considered a valid and legitimate basis for an employer's failure to reinstate such employee, or for taking other associated employer action.

N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 380-8.2

Adopted New York State Register July 19, 2017/Volume XXXIX, Issue 29, eff. 7/19/2017