Under federal law, an employer doesn’t have to hire or promote the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related.
These characteristics often include:
- National origin
Interview questions that aren’t allowed include:
- Are you married? Are you planning to get married?
- Do you have children? Are you planning to have children?
- Where were you born?
- What’s your sexual orientation?
- Have you ever been arrested?
An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job’s requirements.
Some examples might be:
- Have you ever been convicted of a crime?
- Can you prove that you are eligible to work in the US?
- Can you do this job with or without reasonable accommodations?
A previous employer is free to provide any non-confidential information about a previous employee, so long as it’s true and isn’t provided to maliciously harm the employee. An employer who provides false information that disparages the employee may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee’s job performance and confirm only dates of hire and separation, plus wage or salary information.
In New York, employees are presumed to be “at will.” At-will employees may be terminated for any reason, so long as it’s not illegal. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract. In New York, establishing an express limitation curtailing an employer’s right to terminate at will can rebut the at-will presumption.
While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete, and certain record of the employer’s policies and procedures. An employee handbook also provides more convenient access by employees and managers.
At a minimum, an employee handbook should include:
- A statement regarding the at-will employment relationship
- An equal employment opportunity statement
- A policy regarding sexual and other types of harassment in the workplace
- Internet access, e-mail, and voice mail policies
- The Family Medical Leave Act
The laws regarding an employer’s duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.
Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain to a state or federal agency about an unsafe work environment and be protected against employer reprisals.
In addition to federal and state laws, New York’s Division of Safety and Health (DOSH) is charged with protecting workers in their work environment. Ten separate programs and one licensing unit fall under the DOSH’s authority.
Worker’s compensation laws are designed to compensate employees who have been injured or killed in work-related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee’s recovery.
The amount of compensation paid to an employee depends upon the classification of his or her disability:
- Permanent total disability: 66 2/3% of the employee’s average weekly wage
- Temporary total disability: 66 2/3% of the employee’s average weekly wage
- Permanent partial disability: 66 2/3% of the employee’s average weekly wage for a period determined by the type of injury, for example, up to 312 weeks for the loss of an arm, 288 weeks for the loss of a leg, and so forth
- Temporary partial disability: two-thirds of the employee’s average weekly wage before the accident and his or her wage-earning capacity after the accident
New York’s workers’ compensation system is premised on a trade-off between employees and employers. Employees promptly receive workers’ compensation benefits for on-the-job injuries, and the limited workers’ compensation benefits are the exclusive remedy against the employer, even when the employer was negligent.
In New York, it is the job of the Workers’ Compensation Board to administer the New York State Workers’ Compensation Law, including Workers’ Compensation Benefits, Disability Benefits, Volunteer Firefighters’ Benefits, Volunteer Ambulance Workers’ Benefits and Volunteer Civil Defense Workers’ Benefits Law.
An employer may be liable to an employee for instances of “sexual harassment” which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace.
The following conduct is generally considered sexual harassment:
- Direct sexual conduct–an employer makes sexual advances or statements
- “Quid pro quo” – job-related benefits are offered in exchange for sexual conduct
- Hostile work environment–an employer maintains an overly sexual work environment
In addition to the protections afforded by federal law, the New York State Division of Human Rights (DHR) enforces the New York State Human Rights Law, which only applies to New York State. Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.
Discrimination and Wrongful Termination
Employers are not allowed to terminate or discriminate against employees for the following reasons:
- National origin
It’s illegal for an employer to consider these characteristics with regard to:
- Job assignments
It’s illegal for an employer to terminate an employee:
- For refusing to break a law
- In retaliation for filing a discrimination or safety claim
- For taking leave under the Family and Medical Leave Act
- Without following its own stated procedure or policy
- For reasons not contained in the employment contract, if one exists
Family and Medical Leave
Under federal law, eligible employees are allowed to take up to 12 weeks of unpaid medical leave, with continued medical benefits and restoration of their original position upon return.
An employee is eligible under FMLA when they:
- Have worked for the same employer for the previous 12 months
- Have worked at least 1250 hours in the previous 12 months
- Are employed by a “covered” employer, which is:
- All federal, state, and local governments and agencies
- Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce
Unemployment benefits are based on combinations of federal and state statutes. New York’s unemployment compensation program is administered by the state and provides monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for “good cause” may also be entitled to benefits.
In the state of New York, unemployment insurance benefits are funded by taxes that are paid by employers only. Deductions are not made from workers’ salaries. The New York Department of Labor is the agency that determines whether a worker qualifies for unemployment insurance.
Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee’s expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.
To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage.
The following are qualifying events:
- Voluntary or involuntary termination of employment for reasons other than gross misconduct
- Reduction in numbers of hours worked
- Loss of coverage by the employee because of one of the qualifying events listed above
- Covered employee becomes eligible for Medicare
- Divorce or legal separation of the covered employee
- Death of the covered employee
For Dependent Children
- Loss of coverage because of any of the qualifying events listed for spouses
- Loss of status as a dependent child under the plan rules
If you think you have been wrongfully terminated or discriminated against in the workplace contact the Laufer Law Group,
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