The HR Specialist: New York Employment Law

You never know which employee will sue you, or when. Take, for example, promotion opportunities. Employees who aren’t picked may think the reason was discrimination. Then they sue. How will you support your promotion decisions?

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Title VII protects employees from discrimination based on sex, and sexual harassment is sex discrimination. That doesn’t mean, however, that every unwanted work relationship is sexual harassment. As a recent case shows, an obsessive interest, unrelated to sex, by one employee in another isn’t prohibited.

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Unions are flourishing during the current economic crisis, slowly emerging after decades of decline. Chances are, more and more of your employees are being courted by unions, whether your organization is currently a union workplace or not. Now’s the time to educate yourself on what you can and cannot do to discourage union membership.

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Black Friday had a double meaning at Wal-Mart’s Valley Stream, N.Y., store last year when temporary employee Jdimytai Damour, 34, was trampled to death by stampeding shoppers. OSHA investigated and levied the maximum permissible fine against the store, $7,000.

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Workplace survival can require a thick skin. Some employees are just too sensitive to what co-workers say, assuming that every overheard comment is directed at them or meant to offend them in some way. The fact of the matter is that even a few incidents that border on harassment or religious intolerance aren’t enough to trigger a successful lawsuit.

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Always investigate a co-worker harassment claim right away. If you find a problem, fix it immediately. A rule of thumb: If co-workers say things that most people would find inappropriate, chances are the terms really are offensive—and likely to create legal liability. Most common slang for race or ethnicity is likely to cause trouble.

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If you provide more than 12 weeks of disability leave, make sure that your employee handbook and policies spell out that employees may lose the right to return to their previous positions if they exceed the 12 weeks of unpaid leave guaranteed by the FMLA.

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If you’ve agreed to settle a discrimination claim, here are some steps that prove you’re serious about maintaining a discrimination-free workplace. Taking these steps can short-circuit efforts to hold you in contempt of court for not doing enough to prevent further problems.

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Sometimes, employees hesitate to tell supervisors about their medical problems, especially if they feel there’s a stigma associated with the condition. But if the employee misses work and is fired, she can’t use the medical excuse to get unemployment compensation benefits.

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Make sure everyone on your HR staff knows about every disciplinary action. Track who is disciplined and for what reasons. Use that data to do a self-audit. You’re looking to see whether members of a protected class are being punished more severely than others.

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