My employer switched to a PTO format. Sick days have to come out of your PTO bank now. All employees received more PTO days except 30 year employees. Is this discrimination?

30 year employees did not get any additonal time. If a 30 year employee become
sick she has to use her original vacation allowance as sick time. All other
employees received extra days under this new policy.

Asked on December 17, 2017 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

It would likely be discrimination if there was no legitimate business purpose for the differential treatment. Examples:
1) It is well-established that employers may set caps on how much PTO may be accrued or carried over. If the reason that the 30 year employees did not get more time is they already had so much they were at or over the cap, that would not be discriminatory, since the employer has the legitimate right to control this. It may be affecting the 30 year employees more, but it applies to all staff and serves a legitimate purpose.
2) However, if instead of putting some cap on all employees in regards to how much PTO may be earned or accrued or carried, the employer gave extra time to younger employers but not those 40 years old (that's the critical age under the law) or older, then that would be discriminatory. There is no legitimate purpose to rewarding younger, but not older, staff.

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