The HR Specialist: New York Employment Law

You never know which fired employee will sue. That’s why it’s important to make sure every disciplinary decision is based on solid business reasons. You may even want to create an internal disciplinary checklist to ensure managers and supervisors know how to document discipline.

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Certainly, train your managers that they cannot use common racist phrases and names. But go beyond the obvious and provide examples of other terms and behaviors that may not seem obvious. The following case provides an example.

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Some employees will never be satisfied with their employer’s solution to perceived harassment. But if you have fixed the problem, it’s perfectly fine to tell the employee he needs to move on and forget about the past.

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When an employee gets fired, his thoughts may turn to filing a lawsuit—maybe based on some suddenly remembered comment that he took as offensive or another supposedly discriminatory act. Fortunately, courts are rarely persuaded.

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Under federal law and New York state law, merely rejecting a supervisor’s sexual advances without reporting the conduct to HR probably isn’t protected activity. However, that’s not the case under the New York City Human Rights Law.

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Many employers now track attendance using biometric scanners that require an employee to clock in and out by scanning a fingerprint or a palmprint. New York employers should note a statute that limits the collection of biometric data.

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Employer-sponsored wellness programs often collect medical data about employees and their families to identify risk factors and customize health and exercise programs. The Affordable Care Act health care reform law favors wellness programs as a way to manage chronic diseases and educate employees about their health.

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Do you consider your commissioned salespeople independent contractors? If you pay them a draw, they may be employees for unemployment com­­pensation purposes.

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Here’s some good news: Just because a supervisor says or does something stupid or tasteless doesn’t mean the employer will suffer. Take an isolated incident that might be characterized as odd or creepy. While perhaps uncomfortable for the employees involved, most of the time it won’t result in a successful lawsuit.

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Here’s a cautionary tale about ignoring a young employee’s plea for help and also ignoring her lawsuit later. Both courses of action may cost dearly—in this case, well over a million dollars.

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