Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
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Legal Concerns for New York Restaurant Owners
by cjleclaire
Feb 14, 2019 | 10753 views | 0 0 comments | 505 505 recommendations | email to a friend | print | permalink

If you’re opening a new restaurant in New York City or the surrounding area, there are certain legal requirements you must put in place. You will need to choose a business entity and get your licenses and permits. You must address health and safety issues (ventilation, garbage removal, sanitation, etc.) before opening your restaurant. You will also need to purchase insurance.

When all the above is said and done, you still have the matter of employees. An employment attorney is a vital resource who can help ensure you are up to speed with New York employment laws.

New York Employment Laws

You will have to know which employees must be paid for overtime, the rules about paying tipped employees and the laws for employing minors. You will have to verify the legal work status of every employee at your restaurant and fill out an I-9 form for each employee.

Before you begin the hiring process, it is wise to know what questions you should avoid. Our blog on job interviews will give you a basic idea but to ensure you have all the information, it is wise to consult with an attorney.

Our lawyer can assist you by reviewing your job application to ensure it does not contain illegal questions. You also need to understand how to check references without making illegal inquiries.

It is wise to devise an employee handbook and ensure it is legally sound.

You must set up sexual harassment training for all of your employees based on recent New York State law.

If you feel overwhelmed about the laws involved with opening a restaurant, you are not alone. You can avoid some employment nightmares at the outset by consulting with an experienced New York employment attorney.

At Stephen Hans & Associates, we work with restaurant owners to help them comply with labor laws and to deal with employment issues.

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Certain questions are taboo for employers to ask in a job interview. The most obvious ones are questions that could be regarded as discrimination. If you ask these types of questions, you could be held liable if a discrimination lawsuit is brought against you. Do not ask questions that intimate at anything to do with age, race, color, national origin or birthplace, religion, disability, genetic information, gender/sex or marital/family status/pregnancy. (EEOC)
by cjleclaire
Feb 14, 2019 | 10894 views | 0 0 comments | 498 498 recommendations | email to a friend | print | permalink

2019 Is Here with New Salary Thresholds

The New York State overtime salary threshold draws the line between exempt salaried workers, who must be paid for overtime, and those non-exempt workers, who do not have to be paid for overtime.

For an employee to qualify for the Administrative employee exemption, the following tests must be met, according to NY State Labor Laws:

  • The employee primarily has the duty of performing office or non-manual fieldwork that relate directly to management policies or general operations.
  • The employee exercises discretion and independent judgment customarily and on a regular basis.
  • The employee regularly and directly assists the employer. Or, the employee works in an executive or administrative capacity or performs under general supervision work that is specialized, technical or requires special training, knowledge or experience.
  • The employer pays the employee on a salary basis.

Any exempt employee working over 40 hours a week and receiving less than a certain monetary number in salary must be paid for overtime work. However, based on location and year, the salary threshold number varies. Employees receiving the salary threshold amount or a lower salary must be paid for overtime work.

The following are the salary thresholds for NYC, other areas and remaining areas statewide:

New York City Salaries

  • After December 31, 2018 $1,1012.50 per week
  • After December 31, 2019 $1,125.00 per week

Nassau, Suffolk and Westchester Counties Salaries

  • After December 31, 2018 $900 per week
  • After December 31, 2019 $975 per week
  • After December 31, 2020 $1050 per week
  • After December 31, 2021 $1,125 per week

The Remainder of New York State

  • After December 31, 2018 $832 per week
  • After December 31, 2019 $885 per week
  • After December 31, 2020 $937.50 per week

Do You Have Wage and Hour Concerns?

At Stephen Hans & Associates, we can address your concerns and provide seasoned legal guidance. Our clients benefit from our decades of employment law defense experience.

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Age Discrimination: ADEA Becomes More Far Reaching
by cjleclaire
Jan 11, 2019 | 14770 views | 0 0 comments | 727 727 recommendations | email to a friend | print | permalink

The Supreme Court Rules that ADEA Applies to All Government Levels



In October 2018, the Supreme Court reached a decision that made the Age Discrimination in Employment Act (ADEA) cover a broad scope of state and local employment. The ADEA prohibits age discrimination against employees who are 40 or older, making it illegal for certain size businesses.

Prior to the ruling, state and local governments that employed 20 or less employees could lay-off or terminate employees based on age without facing any repercussions.

The Case that Changed the Application of the ADEA

In the case Mount Lemmon Fire District v. Guido, U.S., No. 17-587 two firefighters brought a case against the Mount Lemmon, Arizona, Fire District based on age discrimination. Their ages were 46 and 54 and they alleged that the fire department laid them off based on age. The defense did not deny that age was the reason but instead argued that the anti-age discrimination law didn’t apply to them because they had too few employees.

The court decided that the intent of the law was not to clarify but to add the category of “a state or political subdivision of a state” as being subject to the ADEA. As a result, state and local governments irrespective of their size must follow the Age Discrimination in Employment Act.

ADEA Claims and Predictions

Currently, approximately 22 percent of claims filed with the Equal Employment Opportunity Commission (EEOC) are age discrimination claims. In addition, an increasing number of employees, who are older than 67 are continuing to work. This fact indicates that age discrimination claims are likely to remain a major focus for the EEOC.

Do You Have Questions about Employment Law?

Keeping up with changing laws is vitally important for operating a business in today’s world.

If you have questions, our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns or represent you in employment related disputes.

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A Look Back on Sexual Harassment Charges in 2018
by cjleclaire
Jan 11, 2019 | 13696 views | 0 0 comments | 627 627 recommendations | email to a friend | print | permalink

EEOC Sexual Harassment Charges Statistics Surged

The increase in sexual harassment lawsuits brought by the EEOC was 50 percent higher in 2018 than they were in 2017. The EEOC filed 66 harassment lawsuits, and of those, 41 involved allegations of sexual harassment.

New charges filed with the EEOC that alleged sexual harassment were more than 7,500, which was 12 percent higher than in 2017.

The EEOC recovered close to $70 million in settlements of cases that involved sexual harassment issues, which compared with the $47.5 million in settlements recovered for 2017.

As the new year begins, we often look back to the previous year, reflect on the changes and hone our perspectives toward progress for the coming year.

Facts about the #MeToo Movement and Its Effect on Sexual Harassment

In October of 2017, rape and sexual misconduct allegations against Harvey Weinstein were the springboard that propelled the #MeToo movement. Sexual harassment took center stage in the American media’s spotlight.

The #MeToo Movement is a movement against sexual harassment and assault. Tarana Burke was the social activist who coined the “Me Too” expression in 2006, and the phrase reappeared in 2017 when actress Alyssa Milano used it on Twitter.

The #MeToo movement has been a driving factor in the heightened focus on sexual harassment cases. According to the Washington Post, similar to the celebrity driven #MeToo movement, cases filed with the EEOC saw an increase in sexual harassment cases filed by employees from small businesses — mom-and-pop and everyday companies.

The #MeToo movement has increased society’s awareness of the problem and also made it more acceptable for victimized employees to speak out and report abuse. It has made filing claims with the EEOC or a state agency more socially acceptable.

While charges for other types of discrimination dropped in 2018, charges for sexual harassment rose significantly. This focus does not appear to be losing momentum any time soon.

Incorporate Anti-Sexual Harassment Policies and Actions into Your Business in 2019

If you have questions, our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns or represent you in employment related disputes.

 
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Have You Been Accused of Sexual Harassment in the Workplace?
by cjleclaire
Dec 11, 2018 | 20656 views | 0 0 comments | 924 924 recommendations | email to a friend | print | permalink

Growing Concerns About Sexual Harassment in Employment Environments

New York NBC News recently reported that more than $5 million has gone into settling lawsuits brought against 70 New York employees accused of sexual harassment or gender discrimination.

In addition, half of the accused employees have been allowed to keep their jobs.

A Sexual Harassment Case Where Stephen Hans Represented the Defendant

Attorney Stephen Hans appeared in an NY NBC video to give a statement regarding the case brought against his client by rehab counselor Jennifer Lastra. Both were counselors at the Manhattan Psychiatric Center. While she had various accusations of sexual harassment (she filed complaints with managers and the NYPD), there was no proof to substantiate her claim. Stephen Hans' client, Paul Burke completely denied the charges and was willing to go to court to defend his side of the case. However, the case settled out of court, and the claimant received $25,000.

In many government cases involving accusations of sexual harassment, internal investigations have found the accusations were without merit. To avoid expensive, protracted litigation where taxpayers would foot the bill, parties reached settlements instead of going to court. As Stephen pointed out, a settlement does not mean that the accused individual was guilty of wrongdoing. In many instances, a settlement is simply a wise decision to save court costs for both parties in a case.

Sexual Harassment  — What Is the Other Side of the Coin?

Over the past year with the #metoo movement, sexual harassment has taken center stage as an employment concern for employers and employees across the nation.

While our legal system enables society to prosecute wrong doers, it is also designed to protect the innocent by requiring evidence of wrongdoing. In the United States, everyone has equal protection under the law, and you are innocent until proven guilty. At the criminal level the burden of proof is “beyond a reasonable doubt.” However, at the civil court level, the burden of proof is a “preponderance of the evidence,” which basically means proving that it is more likely than not that something occurred.

The legal system seeks justice in all cases, for both plaintiffs and defendants.

At Stephen Hans & Associates, we can answer your questions and provide seasoned legal guidance. We have decades of employment law defense experience that we bring to bear in each case we handle.

 

 

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Employment Ad Discrimination: Where to Draw the Lines
by cjleclaire
Nov 16, 2018 | 16032 views | 0 0 comments | 577 577 recommendations | email to a friend | print | permalink

Facebook Faces Allegations of Job Ads that Discriminate Against Women

When an employer creates an ad that excludes a protected class, grounds often exist for a discrimination lawsuit. For example, when writing most employment ads, it is illegal for employers to exclude applicants based on age or race.

According to a New York Times article, the American Civil Liberties Union (ACLU) and the Communications Workers of America (CWA) filed charges with the EEOC on behalf of female workers against nine employers and Facebook.

Why Was Facebook Included in the Lawsuit?

Facebook provides targeting technology for ads. It can target particular demographics and when an employer is placing an ad, Facebook asks the employer to indicate gender — that is to say, should the ad go to males only, females only or all. Facebook uses algorithms to match an ad with a specific subgroup.

The attorneys bringing the case are arguing that having employer specify male or female is discriminatory and illegal when it applies to jobs that either sex can do. Facebook differs from newspapers with classic ad submission where the content of the ad is simply printed and goes out to anyone who purchases the newspaper.

Employers’ Defense

In the past, Facebook has used the Communications Decency Act as its strongest defense against such accusations. The Communications Decency Act is a federal law that shields internet companies against liability for content generated by third parties.

The lawyers bringing the lawsuit argue that in this situation, employers are using the Facebook platform to be selective in the creation or development of the unlawful content. The interface enables employers to selectively exclude women from jobs that they could potentially also do.

Federal law also prohibits recruiting agencies from discriminating through advertising campaigns that exclude job candidates based on gender and other protected classes (age, disability, race, ethnicity, military status, etc.) State laws also forbid such agencies from aiding in discrimination.

While Facebook does not promote itself as a recruiting agency, many employers use it for recruitment and as a means to reach potential job candidates through ads. Facebook finds itself in a unique position when a group of men receive ads simply because they are men and often because they are men of a certain again and geographical area.

From a legal standpoint, internet technology like Facebook uses is still subject to case precedents, which will decide whether selecting “male only” is legal or not for recruitment ads and which parties are liable.

Our attorneys at Stephen Hans & Associates are glad to discuss employment issues and help business owners create discrimination-free work environments.

 

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Sexual Harassment Protest: Google Walkout
by cjleclaire
Nov 02, 2018 | 20082 views | 0 0 comments | 791 791 recommendations | email to a friend | print | permalink

Thousands of Employees Worldwide Protest Google’s Handling of Sexual Harassment

The Google Walkout on November 1, 2018 in protest of sexual harassment was a worldwide event. The largest gathering of protesters, numbering in the thousands, occurred in Silicon Valley, California where Google Headquarters is located.

In addition, The New York Times reported that workers protested internationally in Singapore, Hyderabad, Berlin, Zurich, London, Chicago and Seattle, to name a few locations. New York also had a large number of protesters. An estimated 3,000 people gathered to protest in a city park.

Since the #Metoo movement began a year ago, sexual harassment has topped the list in anti-discrimination movements. A number of states have passed stricter laws to prohibit sexual harassment, and New York has passed the most stringent sexual harassment training laws in the nation.

What Was the Main Protest Focus in the Google Walkout?

The New York Times published an article on Oct 25, 2018 about the resignation of the creator of Android software, Andy Rubin in 2014. At that time, he left Google with a $90 million exit package and no public disclosure of sexual misconduct.

Google Chief Executive Sundar Pichai and Larry Page, co-founder of Google and the chief executive of the parent company, Alphabet issued apologies. According to a Wall Street Journal article on the walkout, Pichai stated that Google no longer makes payouts to employees who are dismissed due to sexual harassment. He also stated, “Moments like this show we didn’t always get it right. We are listening to employees, which is why today is important.”

Another point of contention among the protesters was Google’s mandatory arbitration requirement in employee contracts. Employees who were protesting submitted a letter to the company that stated they wanted Google to remove mandatory arbitration and allow sexual harassment lawsuits, the way the Microsoft Co. and Uber had done during the past year.

A letter to the CEO also requested that the board of directors include an employee representative and that Google’s Chief Diversity Officer report directly to the CEO.

Google has been known for its open relationship with employees where debate is encouraged and employees enjoy many perks that come with their jobs.

Do You Have Questions about Employment Law?

Having anti-sexual harassment policies in place has become vitally important for employers in many different industries and countries around the world.

If you have questions, our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns.

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Employers: Do You Have Your Sexual Harassment Training in Place?
by cjleclaire
Nov 02, 2018 | 18103 views | 0 0 comments | 520 520 recommendations | email to a friend | print | permalink

What Does the New Sexual Harassment Training Require?

By now, hopefully many employers in New York have become aware of the new sexual harassment training laws that went into effect on October 9, 2018.  Under the new law, all New York employers, no matter how many employees you have, are required under State law to establish a sexual harassment training policy.

New York State has published a tool kit that explains the guidelines employers must follow. Some employers already had established sexual harassment policies prior to the new law. Others may not have any sexual harassment policy in place. In either case, you must comply with the government’s new requirements.

If you’re uncertain about whether your policy is compliant or not, it is wise to consult with an experienced employment defense attorney. The probability is high that most employers are missing parts of the new law in their policies.

Sexual Harassment Training Tool Kit Guidelines

A checklist for sexual harassment training must meet (or it can exceed) the following minimum training standards. Training must:

  • “Be Interactive (see the model training guidance document for specific recommendations);
  • Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • Include examples of unlawful sexual harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual
  • harassment and remedies available to targets of sexual harassment;
  • Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  • Include information addressing conduct by supervisors and additional responsibilities for supervisors.”

It is common have questions about the new guidelines and how to apply them. The specific details of what some of the minimum training standards require are not clear to many employers.

Stephen Hans & Associates can answer your questions and help you understand exactly what is required and how to even exceed the minimum standards. We offer seasoned legal guidance based on decades of employment law defense experience.

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What Is the Faragher-Ellerth Affirmative Defense?
by cjleclaire
Oct 25, 2018 | 17029 views | 0 0 comments | 467 467 recommendations | email to a friend | print | permalink

An Affirmative Defense for Employers

Affirmative defense is a legal term that offers some degree of protection for employers. We live in volatile times, an age where #MeToo is changing the legal landscape and sexual harassment claims are becoming very prevalent.

While many wrongs are being righted, it has also opened the door to the possibility of false claims. You may ask, “What protection do employers have?”

Womans Equal Rights, NY Equality Act

The Faragher-Ellerth Defense

The Faragher-Ellerth Affirmative Defense arose from two cases heard by the U.S. Supreme Court. The court’s decisions established precedents for affirmative defense for employers who faced accusations of sexual harassment. It has also served as a defense guideline against hostile work environment harassment claims based on other protected classes.

The defense may offer protection to employers if the following circumstances exist:

  • The employer exercised reasonable care to prevent and promptly correct the harassment. (Companies’ harassment polices show the business has taken effective preventative measures.)
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities the employee provided or failed to otherwise avoid harm.
  • The employer or supervisors did not take tangible adverse actions against the complaining employee, such as demotion, termination or an undesirable reassignment.

Based on a Recent Ruling, Employers Should Be Proactive in Preventing Sexual Harassment

In a recent case, Minarsky v. Susquehanna County, the County used the Faragher-Ellerth affirmative defense and the district court granted the County summary judgment. However, the Third Circuit Court vacated the judgment by ruling that the case should be heard by a jury, which would decide whether the County took reasonable care to detect and eliminate the harassment and whether the employee had acted reasonably in not availing herself of the County’s anti-harassment protections.

The employee terminated for sexual harassment had been reprimanded twice previously with no notation made in his personnel file. Similar encounters by other workers came under scrutiny before he was terminated. However, Minarsky worked with him alone and had endured sexual harassment for four years.

Being proactive about dealing with sexual harassment and conducting a thorough investigation can often help employers avoid situations like these.

Our attorneys at Stephen Hans & Associates are glad to discuss employment issues and help business owners create discrimination-free work environments.



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Paycheck Deductions: What Is Legal in New York?
by cjleclaire
Oct 09, 2018 | 15802 views | 0 0 comments | 523 523 recommendations | email to a friend | print | permalink

Understanding NY Laws about Paycheck Deductions

Laws vary from state to state regarding deducting for loans or legitimate business losses from an employee’s paycheck. New York has very strict labor laws regarding this, stricter than laws in many other states. In addition, current guidelines have changed from what they were in the past.

Guidelines Regarding NY Paycheck Deductions

New York State Labor Law provides guidelines that list what paycheck deductions are legal.

After receiving notice of all terms and conditions of the payment/benefits and details about the manner in which the deductions will be made, employees must voluntarily authorize the deductions in writing.

Authorized deductions include:

  • Insurance premiums and prepaid legal plans
  • Pension or health and welfare benefits
  • Contributions to a bona fide charitable organization
  • Purchases made at events sponsored by a bona fide charitable organization affiliated with the employer when 20 percent of the event’s profits are being contributed to a bona fide charitable organization
  • U.S. bonds
  • Dues or assessment to a labor organization
  • Discounted parking or passes, tokens, fare cards, vouchers or items that enable mass transit for the employee
  • Fitness center, health club, and/or gym membership dues
  • Cafeteria and vending machine purchases made at the employer’s place of business and purchases at gift shops operated by the employer, where the employer is a hospital, college or university
  • Pharmacy purchases made at the employer’s place of business
  • Tuition, room, board and fees for pre-school, nursery, primary, secondary, and/or post-secondary educational institutions
  • Day care, before-school and after-school care expenses
  • Payments for housing provided at no more than market rates by non-profit hospitals or affiliates
  • Similar payments for the benefit of the employee
  • Recovery of overpayment of wages due to mathematical or clerical error
  • Repayment of advances of salary or wages made by the employer to the employee
  • Deductions based on an employer sponsored pre-tax contribution plan approved by the IRS or local taxing authority

It is also important to notice what types of deductions are not valid: uniforms, purchases of tools and equipment for work, breakage losses, tardiness or misconduct fines and contributions to political campaigns. (New York Labor Law Part 195 Deductions from Wages)

Are You an Employer with Questions about Employment Law?

If you are uncertain about complying with employment laws or face a dispute or lawsuit brought against you by an employee, our attorneys at Stephen Hans & Associates are glad to discuss your concerns.

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