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The HR Specialist: New York Employment Law

Sometimes, you have no choice but to contact an employee during FMLA leave—for example, if someone can’t find a file or needs a password to access records. But don’t let supervisors make unreasonable demands or insist that the employee actually work.

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Here’s something to consider when planning a reduction in force: If you know the move will mean someone in a protected class will lose his job, think strategically in case he sues.

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How you choose among candidates for promotion may spell the difference be­­tween losing and winning a lawsuit. Always document the decision-making process, especially when candidates are equally qualified. Later, you may have to explain the decision in court—and your reason had better be a good, business-related one.

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When employees take FMLA leave (or other time off related to a disability), make sure you adjust any work deadlines. Otherwise, you risk a retaliation claim.

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The pharmaceutical industry must have a bull’s-eye on its back, because employees’ attorneys continue to take aim at it, filing class-action lawsuits that allege unfair or illegal pay practices.

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It’s do as we say, not as we do when it comes to complying with the Uniformed Services Employment and Reemployment Rights Act (USERRA). A Washington Post investigation found that federal government agencies account for 18% of all USERRA complaints filed by returning service members.

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Courts don’t want to second-guess employers unless they feel they have no alternative. When an employee charges discrimination based on different treatment because he belongs to a protected class, the court first looks at the employer’s rules and tries to see if they have been enforced consistently.

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Some employees never forget an indignity. Years later, they may sue over something unrelated to the original wrong and try to bring the old offense into the case. That sometimes works if their claim alleges a hostile work environment. But if the hostility stopped years ago, chances are the court won’t consider the old claim.

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Criminal defendants are entitled to a public defender, but that’s not true for employees trying to sue for discrimination. Courts won’t often pay for legal assistance if the employee can do the work herself.

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An em­­ployee may request FMLA leave after the decision has been made to terminate her but before finding out she’s about to lose her job. Employers that can prove they made the firing decision earlier won’t lose an FMLA failure-to-reinstate lawsuit.

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