The HR Specialist: New York Employment Law

Under the terms of the ADA, disabled employees have job protection—if they are able to perform the essential functions of their jobs, with or without accommodations. But those accommodations have to be reasonable. If you consider attendance an essential job function, courts probably won’t compel you to allow disabled employees to miss unreasonable amounts of work.

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Romantic affairs at work are generally a bad idea, especially if they involve a supervisor and a subordinate. But here’s one worry you can lay to rest: Employees who aren’t involved in an affair with the boss won’t necessarily win a sex discrimination lawsuit if they don’t get the promotions or favors their co-worker got.

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Before concluding that a white-collar and seemingly professional skilled and scientific job is exempt from overtime, get expert advice. Blindly deciding that the job is exempt may mean trouble down the line.

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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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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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