I had back surgery on 06/28/06 and have been home on disabilty. My MD had given me a note to return to work 09/06/06, so I met with my employer to let him know when I would be returning to work. I am an accounts receivable administrator. I have been employed with him for 9 years. I have my own office. He told me while I was out, he decided to make some changes. He is turning my office into a computer room and wants to hire a new person to do my job and is asking me to accept a lower position or leave. Can he do this?

We need to determine if this was an FMLA-qualifying absence.

Does your employer have at least 50 employees at your job location or within 75 miles of your job location?
Did you work at least 1,250 in the 12 months prior to going out?
How much time did you miss for illness or injury (more than 3 days in a row) before you went out? Was any of this time related to your surgery?

And why do you think this is a case of discrimination?

It's a small office , 9 people, under 75 miles. I work 30 to 35 hrs a week.
I missed approximately 12 weeks betwen April and August and yes it was related to the surgery.
Do I think it's discrimination? Yes I do, I am the only female employee with children. I was hired part time. My hours are 9:30am to 4:00pm. He says his reason for wanting to hire someone Full time for my posistin is that I cannot commit to 8:30am to 5:00pm, and that I when my children are in school and get sick, I have to run out to bring them home. I have been here 9 years and this was never an issue before. Also, the company server (computer) is in my office, it's always been there and not in my way, so I cannot understand why all of a sudden he wants to move me out. Do you think he's trying to get me to leave so he won't have to pay unempolyment?

Unfortunately, the company does not have enough employees to be subject to FMLA and New York does not have a state equivalent. SDI is income replacement, not job protection. So, your job was not protected while you were on your leave in the first place.

Now, whether or not parental status is a protected group in NY, I am not sure. cbg?

Is this parental discrimination if others in the office have children but are required to be there the full day?

To me, it seems like they are asking her to go full time and she refuses.... the reason why may be immaterial.

If your employer needs a FT person in that position and you are unwilling to do that, they have a valid and legal reason for transferring you and finding a replacement. I'm not sure what you expect them to do if you can't/won't work the hours they need to have someone there. What worked 9 years ago isn't working for them any longer.

Parental status is not protected in NY.

But even if it were, I agree that this does not appear to be discrimination. If you did not have a child, they would still be wanting this position to be full time. They're not making the change BECAUSE you have a child.

Rather, they are only asking of you what they ask of everyone else. There must be men in the office who have children; THEY still have to work full time. So where's the discrimination?

I returned to work at 8:15 am on 09/06/06. Willing to work the full time position to find that my office was turned into a computer room. My employer called me into his office at 9:15am and gave me a letter stating that due to lack of work they need to lay me off. I asked if he could keep me on the medical till the end of month and he said yes. The girl that handles this said no and has sent me cobra to take effect 09/01/06. I am in New York. They said I have 60 days to decide and then on 11/01/06 I would owe 3 months.
Now is this correct? They have cancelled my medical insurance.

Yes, that is mostly correct. It is standard operating procedure to cancel your insurance until you decide whether or not you want COBRA or not and not only notify them of such, but make your first payment. The law gives you 60 days to make that decision.

From the day you notify them you have 45 days to make your first payment. So if you decide today that you want it, you have until October 13 to make your first payment; if you decide on October 31 that you want it, you have until December 14 to make your first payment.

HOWEVER, your first payment, regardless of when you make it, MUST be retroactive to September 1. And they do not have to reinstate your insurance until they receive your check (although they MUST at that time reinstate it all the way back to September 1).

Obviously, the sooner you make up your mind and make that payment, the sooner your insurance will be reactivated and the lower your initial payment will have to be.