HR Specialist: New York Employment Law

Employee interpretations of state laws are leading to sky-high numbers of lawsuits in the Empire State. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This New York-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: New York Employment Law and the free report you’ll get when you subscribe...

Employees should notify their employers before taking FMLA leave—30 days ahead if possible. In cases of emergencies or sudden illnesses, employees must let their employers know as soon as is practical.

But that doesn’t mean calling in sick or providing a vague doctor’s note is enough.

Advice: A good attendance policy includes a call-in requirement and specifies that “no-call/no-show” means discipline or termination.

Employees who don’t abide by company policies—even if the underlying reason may be FMLA related—can be disciplined.

Recent case: Ricardo Brown, an accountant, missed work during the busy auditing season. He knew the company had a call-in process for absences and that he could be terminated for not following it. Brown called in sick for two days in a row.

He had his doctor fax a handwritten note stating Brown couldn’t come to work for two weeks. The note didn’t specify why. Brown then left for Costa Rica without telling anyone. He didn’t call in.

The real reason he wasn’t at work: He was having a nervous breakdown due to the progression of an underlying HIV infection—something his employer didn’t know about. The company fired him for abandoning his job.

He sued, alleging interference with his FMLA rights. But the court tossed out the case, reasoning that there was no way the employer knew he was suffering from a serious health condition. All the employer knew was that Brown had disappeared and didn’t call in. (Brown v. The Pension Boards, No. 04-Civ-10062, SD NY, 2007)