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The HR Specialist: New York Employment Law

People in positions of authority sometimes get away with behaving badly. But when the authority figure is a com­pany owner who harasses and assaults a vulnerable employee, you can expect a court to come down hard on the offender.

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Personnel records contain information that’s prime material in any employment discrimination lawsuit. An employee who alleges discrimination is entitled to see how she compares with other similarly situated employees, and can do that by reviewing relevant personnel files.

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When a disabled employee reports a relapse or worsening condition, it’s natural to express sympathy. As long as that expression doesn’t show prejudice or stereotypical views about the condition or disabled individuals in general, that won’t put you on the losing end of an ADA lawsuit.

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It’s bound to happen eventually: Two of your employees will have an affair. Then one of them will break it off, leaving the other hurt, angry and perhaps vengeful. It’s all a recipe for disaster—and HR will have to manage the situation. You can punish them both, assuming they are merely co-workers. But if your rules aren’t very specific, you’ll have to be careful.

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Here’s a novel legal theory of disability law that may spell trouble for some employers: Criticizing and punishing a worker whose partner is experiencing a complicated, disabling pregnancy may be association discrimination under the ADA.

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There’s no set standard for the amount of time that must pass between a discrimination complaint and an adverse employment action for it to qualify as retaliation. In fact, federal judges hearing retaliation claims have wide discretion in determining whether something may be retaliation based on timing alone. To be safe, periodically follow up with employees who have complained about bias.

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Restaurants and retailers often have strict dress codes for employees; for example, black polo shirts and khaki pants. These aren’t uniforms—there aren’t any logos on the shirts—but the goal is to create a consistent look for employees. The best approach may be to pay for employees’ clothing rather than risk class-action litigation over who should be covering the cost.

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When an employee owes the company money, it may be tempting to simply deduct it from his or her next paycheck. But in New York, that can be a big mistake. Over the past couple of years, the New York State Department of Labor has issued several opinion letters that significantly narrow its interpretation of New York Labor Law Section 193.

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Some hourly employees have begun to argue that if they begin the day with a few work emails, they should be paid for the time they spend commuting to work. Fortunately, a 2nd Circuit Court of Appeals panel has nixed that argument. Had the case gone the other way, employers could have faced huge bills for paid commuting time.

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Here’s a tip for employers that make snap decisions and then quickly reconsider: Don’t hesitate to fix the problem; that could convince a court to toss out a lawsuit.

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