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New York

Outsourcing hiring doesn’t save you from liability

10/19/2009

As you try to cut costs in a tough economy, it may be tempting to outsource some HR functions to an independent contractor instead of continuing to do them in-house. Before you make that move, consider this: Employers may be liable for discrimination practiced by the outsourced independent contractor.

You can’t demand exact day for FMLA treatment

10/09/2009

Employees who suffer from chronic conditions may have to see their doctors regularly. Under the FMLA, if those employees give you 30 days’ notice, they’re allowed to pick the day for their appointment. You can’t simply argue that they don’t need to take off that particular day because there is no emergency or urgency.

Ban all racial comments—discrimination is discrimination, regardless of particular race

10/09/2009

You need a zero-tolerance policy banning all comments about race or ethnicity. It doesn’t matter whether the race being singled out is a majority or a minority race. The act of harassing someone because of his race is illegal either way. It also doesn’t add one bit to workplace harmony or the bottom line.

Appeals court expands free speech protection for employees of government agencies

10/09/2009

Public employees who speak out on matters of public concern are protected from retaliation because their speech is protected by the First Amendment. For some time, courts have held that, if the employee’s motive was not informing the public, but instead securing some other workplace advantage, the speech was not protected. But now the 2nd Circuit has concluded that isn’t the law.

OK to terminate pregnant employee sometimes; the PDA merely requires equal treatment

10/09/2009

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.

Keep resignation letter, exit interview notes—just in case

10/09/2009

Employees often don’t think about suing until after they have quit their jobs and moved on. Then they claim they had no choice but to quit because working conditions were so dreadful. Beat such allegations by keeping resignation letters and any notes taken during exit interviews. They help prove the resignation was voluntary.

ADA ruling: Coming to work is an essential job function

10/09/2009

A federal trial court has concluded that coming to work is an essential function of one’s job. Therefore, the ADA doesn’t cover disabled employees who can’t meet that basic requirement.

Home health aide who challenged FLSA exemption dies

10/09/2009

Evelyn Coke, the Queens home health care aide who took her fight against U.S. Department of Labor overtime regulations all the way to the Supreme Court, has died at age 74.

Human Rights law now allows fines for employment bias

10/09/2009

New York employers found to have discriminated against employees can be assessed fines up to $50,000 under new terms of the New York Human Rights Law. If a court finds employment discrimination to have been willful, the fines—payable to the state—may be as high as $100,000.

Courts’ common sense means money back for victorious employer

10/09/2009

In two recent decisions, our firm was successful in recovering monetary relief for employers that had either been victimized by employee wrongdoing or unsuccessfully sued by employees. We covered the first case in “Payback time: Employer wanted its money back—and got it!” Now we’ll discuss a case in which an employer recovered substantial court costs because a court applied plain-old common sense when it looked at existing rules.