The HR Specialist: New York Employment Law

A New York City broker of apartment rentals and sales may face legal liability for alleged age bias—not because it discriminated, but because its independent contractor did. It’s a cautionary tale for any organization that outsources hiring.

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Since Congress passed the Lilly Ledbetter Fair Pay Act, employers have again been in the position of having to defend paying men and women differently—and sometimes that means going back many years, to the time when pay scales began to diverge. If you can’t show a court that the decision you made years ago was legal under the Equal Pay Act, the employee may win.

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Employees often claim their jobs stress them out. And for some, it’s so bad they feel they need to take off work for a week or so to cope. That doesn’t mean, however, that they’re automatically entitled to use FMLA leave.

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An amendment to Section 195(1) of the New York Labor Law now requires New York employers to give new employees written notification of their regular and overtime rates of pay and their regular payday.

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Here’s a record-keeping requirement you may not be aware of: Employers must keep any written requests for ADA accommodations for at least one year. That includes requests received via e-mail. If you routinely purge information from computer hard drives or servers when employees quit, are fired or retire, you may be in violation of the requirement.

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Attorneys seem intent on finding some form of discrimination in every adverse employment decision—and courts seem increasingly inclined to go along. Consider this recent case, in which a pregnant black employee won the right to a jury trial on race and national-origin discrimination based on the allegation that a white pregnant employee was treated better.

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Employees who request FMLA leave can’t be punished for doing so. That would be retaliation and interference with the right to leave. But merely asking about FMLA leave or requesting paperwork isn’t enough to form the basis of an FMLA claim.

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Occasionally it’s impossible to find an accommodation that will allow a disabled employee to continue to do her current job. That’s when employers must consider the possibility of transferring the employee to an open job she can perform. That doesn’t mean, however, that employers must give a promotion to the employee if the only open position is higher up.

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Training opportunities at work must be available to all employees regardless of race, ethnicity, religion and so forth. That doesn’t mean, however, that everyone who wants to take a particular training course must get the opportunity. Employers can base training opportunities on the critical need for some employees to get the training.

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Some employees believe the Pregnancy Discrimination Act makes it illegal to discharge a pregnant woman for any reason related to the pregnancy. That’s not quite true. The PDA merely requires employers to treat pregnant women no differently than other employees. That may mean discharge for complications associated with pregnancy—under the right circumstances.

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