Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 11615 views | 0 0 comments | 31 31 recommendations | email to a friend | print | permalink

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Employee retaliation claims and how to avoid them
by cjleclaire
Apr 29, 2014 | 9356 views | 0 0 comments | 383 383 recommendations | email to a friend | print | permalink


Although there are thousands of employment discrimination cases filed every year, they are not easy for the plaintiff to win. The plaintiff must persuade juries that their employer made an employment decision based on a personal bias against race, religion, sex, age, etc. However, juries are much more receptive to a claim that a manager, supervisor or employer treated an employee unfairly after he or she made an accusation of discrimination or harassment.

Because jurors often see the act of striking back at complaining employees as a natural reaction and human nature, the employer is often the one who suffers in such cases. Employees who file retaliation claims and win are frequently awarded punitive damages—sometimes numbering in the millions. Therefore, a retaliation claim is not something an employer should take lightly.

Reduce your exposure to employee retaliation claims

While it is unlikely you can completely avoid retaliation claims, there are steps you can take that can reduce your risk of having such claims filed against you.

Implement policies against retaliation. You should already have anti-discrimination and harassment policies in place. If your existing policies don’t cover retaliation, then you should update your current policies to include a strong non-retaliation policy. This policy should assure your employees that they will not suffer reprisal for filing complaints. The policy should also contain the process for reporting any retaliation that might occur.

Train managers and supervisors. Implementing non-retaliation policies is a good start but you should also provide training to your supervisors and managers. These employees need to understand what non-retaliation means and how to apply the policy correctly. Provide training on what constitutes retaliation and how to respond to a retaliation complaint. Further, all training should be documented in the event you need to show the steps you have taken to prevent unlawful retaliation.

Do not treat claimants differently. You should never treat an employee who has filed a complaint like an outcast or pariah. Such treatment only validates the employee’s claim of unlawful conduct and renders your policies invalid. Instead, be proactive and communicate with the claimant. Provide him or her with a copy of your non-discrimination policy and offer to help them if they experience problems. And you should follow up to ensure there have been no further problems or incidents. All of these interactions with the claimant should also be documented and kept on file.

Review subsequent employment actions. Any employment actions taken after the complaint that affect the claimant should be reviewed before you make any changes. Such as change of supervisors, transfers to different departments, change of schedule, etc. Your personnel department, legal adviser and/or management personnel should review any proposed actions/changes to ensure that it does not constitute retaliation.

To discuss retaliation claims contact a NY business litigation attorney

When facing a retaliation claim, keep a cool head and talk to an experienced NY business litigation attorney  about your situation. Your attorney can help you determine the best approach to take in your circumstances.

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What is a retaliation claim and why are they so popular?
by cjleclaire
Mar 27, 2014 | 8547 views | 0 0 comments | 385 385 recommendations | email to a friend | print | permalink

According to the U.S. Equal Employment Opportunity Commission (EEOC), in 2012, 38 percent of all EEOC claims were for retaliation.

The reason retaliation claims have become so popular in recent years is because case law and legislative developments have:

Broadened the field of people protected against retaliation

Relaxed the burden for establishing retaliation

Expanded the damages available to a plaintiff in such a claim

Further, retaliation claims have a much higher success rate than discrimination claims.

The basics of a retaliation claim

In essence, a retaliation claim is that the employer ‘took revenge’ or retaliated for an action the employee took that was legally within the scope of employment law.

For an employee to establish an unlawful retaliation claim, he or she must show that:

They took part in a protected activity (such as file a claim)

Their employer took an unfavorable action against them

There was a connection between the protected activity and the unfavorable employer action.

For an employee to establish protected activity they must show the participation in the activity was protected by employment law such as:

  • Filing a claim
  • Testifying
  • Assisting/taking part in an investigation
  • Opposing an unlawful employment practice

The Supreme Court and Congress have broadened coverage and damages

A number of U.S. Supreme Court rulings have expanded anti-retaliation protection to cover things such as:

Broadening the term “employee” to include former employees

Allowing oral complaints to have a comparable weight as filed complaints

The “scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”

Further, legislation passed by Congress has expanded the range of damages and expanded anti-retaliation protections, including compensatory and punitive damages and protections for a wider range of individuals.

Retaliation is easier to believe than discrimination

The other side of this coin is that it is generally easier to believe that a person could retaliate against an accusation of wrongdoing rather than just blindly discriminate against someone because of their race, religion or age. Individuals who are tasked with fact finding are after all human beings and often make a connection between an accusation and a reaction of retaliation. And chances are, plaintiffs in retaliation claims are on counting on that.

Retaliation claims require an experienced NY business litigation attorney to navigate

A retaliation claim can be tricky for a variety of reason but maybe moreso because of that intangible human factor. People generally believe that others seek revenge and often have personal experiences of such occurrences. This alone can make a juror sympathetic toward a plaintiff. If you face a retaliation claim you should speak to an experienced NY business litigation attorney immediately. A skillful attorney can help you determine the legal remedies available in your situation.

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National Labor Relations Board finds employee’s Facebook posts not protected
by cjleclaire
Mar 19, 2014 | 30390 views | 0 0 comments | 385 385 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

In recent years, thousands of companies have felt the impact of a slumped economy, increased costs and regulations.  These conditions have forced employers to cut costs, reduce hours and downsize staffs.  Consequently, employee lawsuits and job discrimination charges have risen.  In fact, the U.S. Equal Employment Opportunity Commission (EEOC) reported that in both 2010 and 2011, there were a 100,000 workplace discrimination complaints filed.

After all the time and energy you have put into your business, it can be very stressful to receive notice that you are being sued by a former employee.  It is easy to imagine all of your blood, sweat and tears circling the drain and leaving you with nothing.  However, rather than panicking, you should take the following steps:

What to do:

  • Weigh your options calmly and determine the possible damages if the suit/complaint is decided in your employee’s favor.
  • Keep and maintain all records and other evidence that may relate to the case
  • Have you IT Department maintain all electronic records so that they are ready if a case proceeds
  • Consult your insurance policy for clauses that cover legal costs
  • Talk to your broker about any special riders to your policy that may help defray legal costs
  • Review your supplier and manufacturer contracts to determine if you are indemnified against legal liability.

What not to do:

  • Do not panic and assume all is lost
  • Do not destroy records or any documentation that may be considered evidence
  • Do not discuss the case with anyone who is not directly involved or with anyone who may be potentially a witness, except as advised by your attorney
  • Do not contact your former employee about his or her claim
  • Do not call your former employee to try to settle the case yourself
  • Do not contact your former employee to tell them off or to vent about feelings of betrayal

Discuss employee claims with an experienced NY business litigation attorney

The fact is that just being named in a suit or complaint does not mean you will lose your company or that you will even end up in court.  Plaintiffs often name several defendants in an attempt to hit all the bases.  Your company may only be named because if it is in a related field or thought to be involved.  If so, your attorney may be able to get your company dismissed from the suit.  Employee disputes and claims can be nerve-wracking but a NY business litigation attorney can help you determine the best strategy to take in your situation.

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Protect your company from discrimination complaints and lawsuits
by cjleclaire
Feb 18, 2014 | 10611 views | 0 0 comments | 312 312 recommendations | email to a friend | print | permalink

The U.S. Equal Employment Opportunity Commission (EEOC) reported it obtained a record $372.1 million in monetary relief for victims of private sector employment discrimination in year ending 2013.  This amount is nearly seven million more than was recovered in 2012 and is the highest amount of financial compensation ever recovered in the agency’s history.

The EEOC is the federal agency that enforces federal laws prohibiting employment discrimination, and obtains monetary and non-monetary compensation for individuals who have been discriminated against by employers through:

•    Administrative enforcement

•    Settlements

•    Conciliations (alternative dispute resolution)

What this means for employers

While according to its report, the EEOC received 14,000 fewer filings the fact that they recovered the record amounts this past year may not bode well for employers.  In our politically correct society, discrimination can be construed by what most people may consider minor incidents.  And unfortunately, with each passing day more regulations, laws and rules are passed that make ordinary behavior something sinister or questionable.  More than ever, employers must remain ever vigilant in their awareness of and compliance to the new rules.

In order to protect your company from unnecessary complaints you should:

•    Always give honest employee evaluations.  Employees with the responsibility of providing evaluations must do so honestly and resist the urge to ‘be nice’ because they do not want to hurt someone’s feelings.  If a complaint should arise for poor work performance, the employee evaluations should back that statement up by showing that it was drawn from honest employee evaluations.

•    Provide anti-discrimination/harassment training.  Your anti-discrimination policies must be clearly written and disseminated to all employees.  And you must take e reasonable steps to ensure everyone from management to entry level employees know, understand and can use the complaint process.  Annual or bi-annual training on these matters can help achieve this end.

•    Do not allow retaliation.  When one employee complains about another it is natural for the accused employee to want to retaliate against the accuser.  You must not tolerate this for any reason.  Conduct a non-biased investigation and do everything possible to rectify the matter without letting it get out of hand with warring employees escalating the situation.

•    Be fair and consistent.  You will open your company up to scrutiny and liability if you treat one employee differently from another.  Your policies should treat all employees fairly and consistently.

Talk to an experienced NY employment law attorney about employee disputes

Running a business and keeping your staff happy and productive can be a formidable task.  However, it goes with the territory of having a successful business.  An experienced attorney can help you develop company policies that will help provide a safe and productive work environment for your employees and protect you from the risk of litigation.  For more information about how an employment law attorney can help you with employee disputes or any other business matter, contact us online today.

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The Penalties for Employment Discrimination
by cjleclaire
Nov 13, 2013 | 13110 views | 0 0 comments | 212 212 recommendations | email to a friend | print | permalink

The U.S. Equal Employment Opportunity Commission (EEOC) has filed another suit for employment discrimination which could end up costing the employer hundreds of thousands of dollars.  The suit filed by the EEOC against Chesapeake Health System is on behalf of a former employee who claims disability discrimination and retaliation when she sought federal relief.

The civil suit alleges the health care company "failed to provide a reasonable accommodation, fired, and later refused to rehire a pulmonary function technologist because of her disability and in retaliation for her requesting an accommodation and complaining about discrimination," according to a news release issued Friday by the EEOC.

The former employee, Deborah Ropiski was:

  • A long-time employee
  • Sought transfers which were denied
  • Sought a rehire for a vacant position which was denied
  • Had consistent positive performance reports
  • Received positive patient feedback

And given the former employee’s efforts, the outcome of the lawsuit may turn in her favor.

Employment discrimination carries serious penalties

Under anti-discrimination laws, an employer who is found liable for employment discrimination can be made to pay damages and provide injunctive relief to the injured party and penalties may include:

  • Back pay (compensation for lost wages due to discrimination)
  • Front pay (money to compensate the employee for future wages)
  • Injunctive relief (reinstatement or promotion)
  • Court costs, and legal fees
  • Out of pocket costs

Depending on the case, the plaintiff may also be entitled to damages for pain and suffering as well as punitive damages.

Don’t end up in court—talk to an experienced NY employment law attorney

NY employment defense law attorney  today to learn the legal remedies available in your situation.
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Frequently Asked Questions About New York Employment Law
by cjleclaire
Nov 04, 2013 | 9497 views | 0 0 comments | 311 311 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

Employment law can be complex and confusing for both the employer and the employee.  Following, are frequently asked questions concerning employment matters:

Is an employer required to give a reason for firing or laying off an employee in New York?

New York Employment Law  does not require an employer to tell an employee why he or she is being fired or laid off.

Must an employer have cause to fire his or her employee?

An employee can be fired by an employer for any reason or no reason, providing it does not violate anti-discrimination laws.

Does an employee have a right to a copy of their personnel file?

Typically, unless state or local law state otherwise, an employee has no right to his or her employee file and an employer does not have to provide it.

Are employers required to provide health insurance, sick leave, or vacation pay to his or her employees?

Although many employers offer such benefits, an employer is not automatically required to provide them.  However, the Affordable Healthcare Act does affect healthcare benefit requirements for larger companies with 50 employees or more.

Can an employer eliminate employee benefits?

Benefits such as vacation pay that has already been earned cannot be taken away from an employee – however, an employer can change its benefits policy going forward at any time.

Is an employer required to give severance pay to a fired employee?

Unless an employer has an established policy or practice of giving severance pay upon termination, it is not required.

Get your questions answered by a NY employment law attorney

Running a business and managing employees can be a challenge.  And new laws and regulations seem to go into effect everyday.  To avoid penalties and stay in compliance you should talk to an experienced attorney.  To get any questions you may have about employment matters answered, contact an experienced NY employment defense attorney today.

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Are contestants of reality shows, employees?
by cjleclaire
Oct 23, 2013 | 16620 views | 0 0 comments | 245 245 recommendations | email to a friend | print | permalink

American Idol faces a discrimination lawsuit filed by 10 black former contestants who were disqualified from the show.  The plaintiffs claim they were disqualified for reasons other than singing, including criminal history, and were given the “right to sue” by the Equal Employment Opportunity Commission (EEOC), allowing the lawsuit they filed in July to move forward.

The lawsuit alleges that over the course of a 10-year period, Idol producers engaged in a pattern of racial discrimination by using the arrest history of black male contestants as a reason for disqualification.  The suit also claims that 31 percent of all black Idol semi-finalists were disqualified for reasons unrelated to their singing ability.  And further alleges that white and non-black contestants were not subjected to the same standard for disqualification.

Proving the claims

In order to prove that American Idol discriminated against the plaintiffs after asking about arrest histories, the young men must first prove that they were employees of the show.  This is a significant hurdle to overcome for the plaintiffs because asking an employee or a job applicant about previous arrests is a violation of California law.  Additionally, the plaintiffs must also prove that the discrimination took place within 300 days of filing their lawsuit.

Independent contractors and employees are not the same

Treating an employee as an independent contractor, can get you in hot water and subject you to possible lawsuits and heavy fines.  In order to prevent future liability, as a business owner it is important to understand the difference between an independent contractor and an employee:

An independent contractor:

•    Operates under a business name

•    Has their own employees

•    Maintains a separate business checking account

•    Advertises business services

•    Invoices for work completed

•    Has more than one client

•    Has own tools and sets own hours

•    Keeps business records

An Employee:

•    Performs duties dictated or controlled by others

•    Is given training for work to be done

•    Works for only one employer

Talk to a NY employment law attorney about your employment issues today

Running a business is a challenge in today’s world and employers can often make unintended mistakes for which they pay dearly.  Treating an employee as an independent contractor is just one of the many things that can put you and your business at risk.  To discuss your employee issues, contract needs or other employment matters, contact an experienced NY labor & employment  law attorney today.

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Appeals court determines award is subject to withholding
by cjleclaire
Oct 15, 2013 | 8436 views | 0 0 comments | 161 161 recommendations | email to a friend | print | permalink

In Noel v. New York State Office of Mental Health Central New York State Psychiatric Center, an employee sued his employer under Title VII and won a $318,217 judgment. Part of that judgment included $280,000 for back and front pay. The employer sent a check directly to the employee for the net amount after withholding of $139,582.

The employee returned to court and argued that he was entitled to the full award. Stating that since the settlement was a jury award the payment wasn’t wages subject to withholding because was a judgment against a liable party. The employer, argued that according to the tax code that the award was taxable wages—and the Internal Revenue Service took the employer’s side. The trial court ruled in favor of the employee and instructed the employer to repay the withheld taxes.

However, the federal appeals court reversed that decision and ruled that the award was wages and subject to withholding. Stating that Title VII awards for back and front pay are wages, and employers have a duty to withhold federal and state income taxes and FICA taxes.

This is a good illustration to employers who are involved in employment litigation. Ensure that your management and HR personnel know that back and front wages are subject to withholding and fully taxable.  And settlement agreements should include language that clearly spells this out so there is no confusion regarding the taxability of payments.

Talk to an employment law attorney today

Whenever possible, it is preferable to avoid litigation with current and former employees.  However, when you need to go to court an experienced NY employment law attorney be an invaluable resource. If you are facing an employment lawsuit or investigation or if you need help to avoid employment disputes contact us online or call 718-275-6700 to schedule a consultation today.

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New laws restrict access to employee social media accounts
by cjleclaire
Oct 10, 2013 | 2874 views | 0 0 comments | 55 55 recommendations | email to a friend | print | permalink

In 2012, state legislatures started introducing laws to restrict employers from obtaining user names and passwords to employees' personal and private social media accounts.  As 2013 rolls forward, the trend is continuing with proposed legislation 26 states .  Twelve states already have such laws in place enacted  since the beginning of 2012.

Champions of keeping employers out of employee’s personal social media accounts site privacy as the issue and claim that employer’s concerns about protecting proprietary company information is already covered by other laws.  Further they claim that employers screening social media accounts of job applicants are dancing dangerously close to discrimination issues, which is expressly illegal.

Businesses are fighting back and state that the new laws keeping them out of employee’s social media accounts provide a venue for employees to divulge proprietary information and inhibit their ability to investigate such matters.  Some states, are trying to add amendments to allow companies to require access to personal digital accounts when investigating allegations that the employee has given away proprietary company information or has engaged in other forms of workplace misconduct  In Colorado, employers can request access to their employees' personal accounts when investigating reported breaches of compliance, regulatory and securities laws; and  company proprietary information or financial data

However, it is clear in the Colorado law that fishing expeditions are forbidden and the employer must have supporting information to pursue this avenue of investigation—and fines can be assessed against employers for violations.

The states and legal guidance

States with such laws already on the books include:

•    Arkansas

•    California

•    Colorado

•    Delaware

•    Illinois

•    Maryland

•    Michigan

•    New Mexico

•    Oregon

•    Utah

•    Vermont

•    Washington

States with pending legislation include:

•    Arizona

•    Connecticut

•    Georgia

•    Hawaii

•    Iowa

•    Kansas

•    Louisiana

•    Maine

•    Massachusetts

•    Minnesota

•    Mississippi

•    Missouri

•    Montana

•    Nebraska

•    Nevada

•    New Hampshire

•    New Jersey

•    New York

•    North Carolina

•    North Dakota

•    Ohio

•    Pennsylvania

•    Rhode Island

•    Texas

•    West Virginia

•    Wisconsin

Discuss your social media policy with a NY employment law attorney

If you need assistance in developing employee social media policies that comply with the new laws, contact us online  or call 718-275-6700 to schedule a consultatio
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Supreme Court Ruling puts limits on employer liability in harassment cases
by cjleclaire
Sep 11, 2013 | 10576 views | 0 0 comments | 138 138 recommendations | email to a friend | print | permalink

In Vance v. Ball State University, the Supreme Court considered the definition of supervisor to determine employers’ liability for workplace harassment .  At the heart of the case was the issue of whether a supervisor was an employee with authority to direct and oversee work or, an employee who had the power to take employment actions such as hiring, firing, demotion, promotion, or discipline on a harassment victim.

The importance of the distinction

Making this distinction was important because under the Civil Rights Act, the position of the harasser affects the level of employer liability.  For example, if the harasser is only the victim’s coworker, the employer is only liable if it failed to control working conditions.  However, if the harasser is a supervisor and some action is taken against the victim, the employer is exposed to a higher level of liability.

Even when no definitive action is taken, the employer is still required to show that reasonable action was taken to prevent and quickly correct any harassment.  Further, the employer would also need to show that the harassed employee failed to avail themselves of preventive or corrective opportunities the employer provided.

The outcome

In the Vance case, a female employee filed a suit against her employer, alleging that another employee created a racially hostile work environment.  In both the district court and the appeals court, the employer was found not liable because the harassing employee was not a supervisor.

The plaintive took the case to the Supreme Court.  In a 5-4 vote the high court ruled that, for the purposes of vicarious liability under Title VII, an employee is a supervisor only if they have the authority to take tangible employment actions against the victim.

Talk to a NY Employment Law Attorney About Your Harassment Policies

A harassment lawsuit against your company can have devastating effects.  A NY employment law attorney can provide advice and guidance on how to best craft your harassment policies so your company is protected.  Stephen D. Hans & Associates has helped New York employers develop company policies that protect them against lawsuits for 34 years.  To discuss your harassment policies or other employment law matters, contact our office  or call (718)275-6700 to schedule an appointment.

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