Q: Can my employer take my PTO Ive accrued in the year and 2 months I've been employed as a full time employee ?
I have been at my current job for A year and two months yesterday I was told that I'm being put on in 3 months probationary period because of my absences, in which 75% of them i have provided proof of court dates and physician appointments which they would tell me they didnt need a copy. My accrued vacation time is also getting taken away and I'm now a part time employee instead of full time @ 35 hours but my hours stay the same. Can they do this?
A: It is not clear what you mean when you say you are now a part time employee even though your hours stay the same. You would need to provide more details, but the general rule in New Mexico is that issues related to accrual, use, or loss of vacation or sick leave are determined by your employer's policies. Employers also have the right to hold you accountable for frequent absences, even if you believe those absences are for good personal reasons. They can also cut your hours, put you on probation, or even dismiss you for any number of legitimate reasons or for no reason at all. You have not provided facts to suggest illegal discrimination (i.e., because of a protected class) or retaliation for some protected activity. You also don't indicate that your employer is failing to pay you.
A: In certain situations, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and/or New Mexico Human Rights Act ("NMHRA"), NMSA § 28-1-1 et seq., entitle an employee to unpaid time off for medical procedures and prohibit the employer from retaliating after the employee does so. In addition, depending how/when vacation time was "accrued," it may be regarded as compensation that the employer cannot, after the fact, take away. Whether and how these laws apply to you would depend on the details of your employment and situation.
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