The HR Specialist: New York Employment Law

To avoid paying overtime and keeping track of every minute employees spend on the job, many employers reflexively classify employees as exempt rather than hourly employees. But many employers get it wrong—and that can be costly.

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What should you do if you learn that an employee who is out on FMLA leave will not be able to return when her 12 weeks of unpaid leave are up? If you are absolutely sure that she can’t claim she is disabled under the ADA, you can terminate her. But you still must continue providing any benefits she was receiving while on FMLA leave, such as medical premium payments.

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Courts understand that today’s economic climate is difficult. They aren’t likely to assume a company is restructuring or downsizing solely to “get” some employees. That’s especially true for employees lucky enough to be offered an alternate position—and then turn it down in order to sue.

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Base your promotion process on a well-publicized system of posting opportunities and tracking applicants—not word of mouth or personal recommendations. It’s the best way to prevent failure-to-promote lawsuits. After all, if you can show an employee didn’t apply for a promotion, the case disappears.

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Generally, state agencies can’t be sued in federal court for federal employment law violations unless they have explicitly agreed to give up their right to sovereign immunity. Even so, federal courts are reluctant to leave employees out in the cold.

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A recent report offers some ominous news for New York employers. New York is one of eight states that saw an increase in class-action wage-and-hour cases filed in state court last year, according to the Seyfarth Shaw law firm’s new Workplace Class Action Litigation Report.

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The state Labor Department wants you to know there is an alternative to cutting staff during the downturn. Employers that reduce work hours for full-time employees instead of laying them off may qualify for the Shared Work Program.

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There’s no sure way to protect your organization from a rogue supervisor who sexually harasses a subordinate. However, you can reduce your liability with a strong, proactive stand against any supervisor/subordinate personal relationships.

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Nine companies headquartered in New York have made Fortune magazine’s 2009  “100 Best Companies to Work For” list. Seven of the firms are based in New York City. Two Rochester companies also made the cut.

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J.C. Penney has agreed to settle a racial discrimination suit filed by Reinell Singh, an African-American employee at a Staten Island store. Singh alleged her supervisor used racially offensive names when referring to her and ultimately fired her because of her race.

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