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New York

On applications, arrests off limits; convictions fair game—With limits

11/01/2007

Q. Our employment application asks, “Have you ever been arrested? If so, list the nature of the arrest.” Is this legal? …

Must we provide access to an employee’s personnel file?

11/01/2007

Q. Recently, an employee was involved in a nonwork-related car accident. The employee’s attorney sent the company an authorization letter demanding that we provide the employee’s personnel file in 20 days. It seems the attorney needs the information for a potential lawsuit (unrelated to the company) concerning the accident. Do we have to turn over the personnel file? …

HR tracking system helps ensure equal treatment

10/01/2007

When it comes to discrimination, your best defense is treating everyone absolutely equally. And that’s tough to do without a central HR tracking system. It doesn’t have to be complicated. Make sure you note any problems (and praise) in each employee’s official file. Then, do regular audits—pulling out data on age, sex, national origin and race—to tabulate the types of problems and any discipline levied …

Be prepared to back up group firing decision

10/01/2007

Does your organization make important hiring and firing decisions by committee? That’s one way to counter possible bias by one individual. But be prepared to document how the group made the decision …

Only business need can justify English-Only rules

10/01/2007

Employers that want to limit the use of languages other than English in the workplace take note: Your language restrictions must be reasonable and based on genuine business needs. A simple company preference for English isn’t good enough …

OWBPA doesn’t cancel out courthouse-Step settlements

10/01/2007

The federal Older Workers Benefit Protection Act (OWBPA) requires employers to give older workers at least 21 days to consider the offer if any termination or severance-pay agreement asks them to give up their right to sue for age discrimination. But fortunately, once the case is in court, there’s no waiting period …

Remind supervisors: No temper tantrums allowed

10/01/2007

One of the quickest ways to turn an annoying—but perhaps unfounded—discrimination complaint into a winning lawsuit is to react inappropriately. That’s why it’s critically important for HR professionals to remind managers and supervisors: Don’t comment on pending complaints! Plus, remind them that venting in front of employees can backfire …

Despite contract, union members can sue directly

10/01/2007

If you think you can prevent employees from suing you directly by negotiating a union contract specifying that all employment disputes go to arbitration, think again. Even if the collective-bargaining agreement specifies that every employment-law dispute will be arbitrated, your employees still can go to state or federal court with their claims …

NYSHRL allows individual liability claims for ‘Conspiracy to retaliate’

10/01/2007

There’s a new concern for managers and supervisors in New York state. Those who give out bad references or otherwise bad-mouth a former employee who claimed discrimination can be held personally liable for a conspiracy to retaliate …

‘Aiding and abetting’ discrimination can include giving false reasons for discharge

10/01/2007

New York state law provides personal liability for workplace discrimination. Employees who aid and abet their employers in discriminatory acts may be sued personally and can lose their assets. But exactly what acts constitute “aiding and abetting”? …