The HR Specialist: New York Employment Law

Does your organization allow or tacitly condone it (by ignoring it) when employees criticize a co-worker who associates with members of a different protected class? If so, you should be aware that disciplining that employee can bring on a lawsuit.

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In a textbook illustration of the perils of downsizing, a group of female executives has filed suit against beleaguered banking giant Citigroup, charging the bank’s layoffs hit women executives harder than men. That, attorney Douglas Wigdor told Forbes.com, is “recessionary discrimination.”

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Employees who take leave because of a disability may be entitled to a reasonable accommodation when they return to work. But, as an employer, you have the right to decline an employee’s return if you genuinely believe she won’t be able to perform her job. But if the employee proposes undergoing a medical or psychological exam to prove she is fit to return, cooperate.

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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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