The HR Specialist: New York Employment Law

Supervisors need regular reminders—reinforced with training—that it’s their responsibility to find ways to deal with it when workers go on FMLA leave, no matter how difficult it may be to cover for the absent employee. As the following case shows, courts have no sympathy for employers that fire or make unreasonable demands on employees who exercise their FMLA rights.

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Employment law attorney Eugene D’Ablemont turned 70 years old in 2001. He was just as productive as ever, consistently bringing in more than $1 million in fees to Kelly Drye & Warren, the international law firm in which he is a partner. Now he’s using his decades of legal experience against his own firm.

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Federal appeals court Judge Douglas Ginsburg was not amused when attorneys for PricewaterhouseCoopers (PwC) asked to have District of Columbia laws applied to a New York case. In fact, he was so perturbed, he heartily rebuked the lawyers with a stinging Victorianism.

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Most jobs can be quantified. That is, it’s possible to measure success on the job by tallying how much an employee produces in a given period—whether that’s widgets, reports, new clients or sales. By using such objective measures to decide who is terminated, employers have powerful evidence to counter discrimination claims.

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You’ve documented the poor performance. You’ve been careful to keep things professional, even as you’ve concluded you’ll probably have to fire the employee. Then he files a discrimination complaint. Avoid the temptation to speed up the usual disciplinary process.

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Employers that take the time to document workplace problems usually don’t lose discrimination lawsuits. The reason is simple: A carefully documented work history—showing exactly how the employee was breaking rules or underperforming—makes it difficult to prove discrimination.

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If you discipline a supervisor for discrimination, make sure you can reassure employees who cooperated in the investigation that the supervisor won’t turn around and punish them.

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Citing “repulsive harassment and discrimination,” attorney Julie Kamps has sued her former employer, the law firm of Fried, Frank, Harris, Shriver & Jacobson, for $50 million. Kamps said she was told her clothing didn’t “fit into typical feminine stereotypes.”

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For most New York employers, complying with Title VII means they’re also in compliance with the New York State Human Rights Law (NYSHRL). Courts typically lump the claims together. That’s not necessarily true if you operate in New York City.

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Some disabled employees believe that their disabilities excuse them from following the workplace rules other employees have to abide by. That’s not true. Case in point: An IBM employee was fired for accessing sexual materials on his work PC. He sued, alleging that post-traumatic stress disorder made him more vulnerable to addiction, including a compulsion to access sexually oriented materials. The court refused to entertain that argument.

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