Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
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Facts About Sexual Harassment in the Restaurant Industry
by cjleclaire
Sep 20, 2018 | 19772 views | 0 0 comments | 610 610 recommendations | email to a friend | print | permalink

Why Is Sexual Harassment so Prevalent?

sexual harassment

Sexual harassment is more prevalent in the restaurant industry than any other industry. Statistics show that 90% of women and 70% of men working in the restaurant industry reported they had experienced some form of sexual harassment.

What Factors Make Restaurants Prone to Sexual Harassment?

The Harvard Business Review (HBR) indicated that the following factors make employees in the hospitality industry more susceptible to sexual harassment:

  • Women make up 71% of restaurant servers
  • Men make up the majority of restaurant management
  • Typical servers are young females
  • Women are in lower pay and lower status jobs
  • Due to lower status, women do not feel comfortable confronting others about inappropriate behavior
  • The employee turnover rate is high — 70% annually
  • The customer is always right mentality enables customers to sexually harass employees
  • States with tip systems experienced more sexual harassment than states that had minimum wages
  • Restaurants had strict grooming, and uniform rules and were focused on “looks”

According to an HBR study, where 162 managers from hotel and lodging departments participated, managers perceived sexual harassment as less negative when done by a customer than by an employee.

A study done on 76 females in the restaurant industry over a three-month period revealed that there were 226 incidents of sexual harassment, which broke down as follows:

  • 112 incidents involved co-workers
  • 29 involved a manager
  • 85 involved customers

The nature of the harassment included:

  • Telling suggestive, sexual stories (49%)
  • Making offensive remarks (46%)
  • Making crude sexual remarks (45%)
  • Making sexist comments (42%)
  • Attempting to discuss sex. (33%)

Servers rarely complained to their managers even though most of them felt uncomfortable and threatened. The reason they didn’t report it was due to fear of retaliation. As a result, both men and women working in the industry have, to a degree, normalized sexual harassment.

Stephen Hans & Associates provides extensive legal experience to business owners regarding employment related issues.

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Company Security and Surveillance: Where Should Employers Draw the Line?
by cjleclaire
Aug 16, 2018 | 21974 views | 0 0 comments | 757 757 recommendations | email to a friend | print | permalink

Are Your Security and Surveillance Policies Violating Privacy Laws?

Companies have the right to protect against internal theft or property destruction. They also have a responsibility to evaluate productivity and ensure their resources are used efficiently and effectively. If a company faces litigation, gathering evidence becomes a priority. As a means of gathering information, companies often use surveillance systems, whether gathering information related to production, theft, property damage, or for litigation purposes.

Types of Surveillance

Installing cameras for video surveillance is one approach to surveillance. Putting GPS tracking on company vehicles is another form. Monitoring software is also available to install in company computers and cell phones.

What Types of Legal Precautions Should You Take?

According to Business News Daily, employers should post signage, which states that the premises are monitored by security cameras.

For computer monitoring, when the employee uses a company device, there are virtually no ramifications for installing monitoring software to monitor what employees are doing at work. Employers have the right to know whether the employee is working on tasks related to the job and what tasks are getting done. It is better for employers to require that employees use the business’s computers because they would not have the same right to install monitoring software on a device the employee owns.

Where employers can run into trouble is when they acquire too much information of a private nature. Finding out an employee’s medical information would violate HIPPA or could lead to a lawsuit that claimed violation of the Genetic Information Act.

Spying on employees who are exercising their right to discuss unionizing, collective bargaining, wages or work conditions is an unfair labor practice and should not be done.

GPS tracking on company vehicles is legal because the vehicle is company property and employers have the right to know where their property is. However, GPS tracking on laptops and phones may cross a legal line by gathering information about employees’ activities when they are not working, which violates their privacy rights.

It is wise to consult with an employment lawyer to make sure that your surveillance policies do not put your business at risk.

Stephen Hans & Associates provides extensive legal experience to business owners regarding employment related issues.

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Changes in New York State and NYC Sexual Harassment Laws
by cjleclaire
Aug 16, 2018 | 20497 views | 0 0 comments | 663 663 recommendations | email to a friend | print | permalink

Sexual Harassment: Mandatory Arbitration and Nondisclosure Agreements

The NY legislature passed changes in sexual harassment law that Governor Cuomo signed into law on April 17, 2018. These laws went into effect 90 days after being enacted, which means they are currently in effect.

Prohibition of Mandatory Arbitration Clauses

Prohibited clauses in employment contracts make arbitration mandatory for allegations or claims that employees file regarding sexual harassment (or any discriminatory action). Any contracts that contain such clauses no longer have legal standing and will not be enforced by the NY courts. The fact that a mandatory arbitration clause exists in a contract does not make the other clauses the contract contains invalid. The only clause that is null and void is the clause that makes arbitration mandatory.

Sex Harassment

Prohibition of Nondisclosure Agreements

In the past, employers could prevent disclosure of sexual harassment by including a nondisclosure or confidentiality clause in a contract. Under the new change in NY law, employers cannot require a claimant to keep confidential the underlying facts and circumstance that led to the claim or action. The only exception is if confidentiality is the complainant’s preference. Nondisclosure prohibition also applies to an agreed upon judgment, decree, settlement or stipulation in a legal proceeding regarding the sexual harassment claim.

If a nondisclosure agreement is being considered, all parties must be allowed to consider it for a period of 21 days. Additionally, if used, the individual has seven days to revoke the agreement, which does not become effective until the revocation period has ended.

(Reference: Lexology)

Are You an Employer with Questions about Employment Law Defense? Get Legal Help.

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 and determine how we can assist you.

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How to Survive as a Small Business Owner Among a Myriad of Laws & Regulations
by cjleclaire
Aug 07, 2018 | 19783 views | 0 0 comments | 704 704 recommendations | email to a friend | print | permalink

Laws Small Business Owners Should Know About

Business laws have multiplied over the years and as a small business owner, you might feel overwhelmed because there are so many. Which laws take priority for your small business?

Large companies have HR departments to tackle legal requirements, but smaller companies do not share this advantage.

Business News Daily addresses this concern and points out four primary laws that should concern small business owners the most:

Family Medical Leave Act (FMLA and employee leaves from work)

Any private sector employer who has 50 or more employees must provide eligible workers up to 12 weeks of family medical leave during a 12-month period. This means that the employee's job is protected during the leave from work. Certain family and medical situations make a worker eligible to receive the leave. By law, the employer cannot prevent deny or interfere with the right to this leave.

However, a close examination of the reasons an employee gives for requesting the leave can prevent abuse of the FMLA. Employers can require that employees fill out a request form and provide mandatory medical certifications to ensure the employee qualifies for the leave.

Non-unionized Employers

Although you may not employ unionized workers, under the National Labor Relations Act (NLRA), workers have the right to unionize, collectively bargain and take part in activities that are for their "mutual aid and protection” (NLRA). They are allowed to discuss wages and other terms or conditions of their employment with each other.

Your policies that restrict what employees can post on social media must not interfere with employees' NLRA rights. It's a good idea to consult with an employment lawyer to make sure your policies do not get you into trouble.

Office of Federal Contract Compliance Programs (OFCCP and affirmation action requirements)

In 2014, affirmative action requirements went into effect for certain federal contractors and subcontractors. The requirements included recordkeeping, data tracking and hiring targets. Contractors with 100 or fewer employees must strive to hire qualified individuals with disabilities as 7 percent of their workforce. Benchmarks also exist for hiring veterans.

Fair Labor Standards Act (FLSA) and Employee Misclassification

You must ensure that your independent contractors do not fall under what the federal government considers employees. The IRS and Department of Labor target businesses that misclassify workers, and the IRS had a 20-factor test it uses to determine a worker's status. It is vital that your independent contractors pass this test. If the government decides the worker is an employee and not an independent contractor, you could end up owing the worker exorbitant amounts of money for unpaid overtime work.

If you have questions, consult with our attorneys at Stephen Hans & Associates. We are glad to offer legal advice and can provide legal representation for disputed employment issues.


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What Employers Should Know About Retaliation Claims
by cjleclaire
Jul 11, 2018 | 21335 views | 0 0 comments | 515 515 recommendations | email to a friend | print | permalink

Retaliation Claims May Include Emotional Distress Damages

A precedent has been set in relation to retaliation claims brought against employers.

Two courts of appeals, the Sixth and Seventh Circuit Court of Appeals had both ruled that employees have the right to recover for emotional distress damages in retaliation claims brought under the Fair Labor Standards Act (FSLA).

The National Law Review reported that a third court, the Fifth Circuit Court of Appeals also delivered the same ruling regarding damages for emotional distress.

What Are the Case Details in This Third Ruling?

A maintenance man, Santiago Pineda, while working for an apartment complex owned by JTCH Apartments, LLC received discounted rent as part of his compensation for doing apartment maintenance. After Pineda sought unpaid overtime, he and his wife received notice to vacate the apartments with the reason being given that they had failed to pay rent. JTCH at that point was claiming Pineda owed rent for the course of his employment. Pineda sued for damages based on the eviction and demand for back rent. He also entered an appeal regarding the district court’s failure to instruct the jury about his ability to claim damages for emotional distress related to his retaliation claim.

The Fifth Court of Appeals ruled that the court was in error when declining to instruct the jury regarding Pineda’s right to damages for emotional distress, and it reversed and remanded the case for trial so the jury could decide on this potential damage.

How Could the Ruling About Retaliation Claims Impact Employers?

Employers should be aware that employees who also file for emotional distress damages could potentially recover much greater compensation than they would otherwise recover for a retaliation claim. A finding in favor of retaliation typically would compensate for back pay or other economical damages. When other types of compensatory damages are considered, as in this case emotional distress, the awards to employees could be substantial.

Our attorneys at Stephen Hans & Associates are glad to offer legal advice and provide legal representation in disputed employment issues.

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Misclassifying Workers as Independent Contractors
by cjleclaire
Jun 12, 2018 | 22809 views | 0 0 comments | 709 709 recommendations | email to a friend | print | permalink

How Would Your Small Business Fare with the IRS for Worker Status?

Did you know that misclassifying workers is one of the top problems that small business owners face? Many small businesses hire independent contractors as part of running their businesses and delivering services or products. It is vital for employers to ensure that they classify workers correctly.

What Can Happen as Result of Misclassifying Workers as Independent Contractors?

The IRS website explains that misclassified workers can file a Social Security Tax Form 8919. Form 8919 is a request for uncollected Social Security and Medicare taxes due on their compensation. In other words, the employer could owe a considerable amount of compensation to the worker because the worker paid the Social Security and Medicare taxes instead of the employer, due to the fact the worker was misclassified as an independent contractor.

What Recourse Do You Have If You Believe the Worker Has Not Been Misclassified?

The IRS recognizes the fact that you may have had a reasonable basis for classifying a worker as an independent contractor and not as an employee. Therefore, relief provisions are granted in such cases. However, you must file all the necessary federal information returns to establish your basis for relief. (See section 530 Employment Tax Relief Requirements).

What is the Voluntary Classification Settlement Program?

The Voluntary Classification Settlement Program (VCSP) offers employers the option of reclassifying workers as employees for future tax periods. It also provides partial relief from federal employment taxes when the employers agree to classify their workers or a class or group of workers as employees. Employers must meet certain eligibility requirements to be allowed to participate in this voluntary program.

Our attorneys at Stephen Hans & Associates are glad to answer your questions and provide legal guidance to help you comply with employment laws or provide you with representation in disputed employment issues.

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Do Your Work Policies Discriminate Between Men and Women?
by cjleclaire
May 16, 2018 | 28608 views | 0 0 comments | 1076 1076 recommendations | email to a friend | print | permalink

One Set of Rules for Men and a Different Set of Rules for Women

Having company policies that discriminate between men and women can be lethal for an employer in today’s work environment. If you haven’t had an attorney review your employee handbook or policies in recent times, it would be wise to do so.

Recent Lawsuit Filed by the EEOC Against the New Orleans Saints

The New York Times published an article about how an Instagram post led to the EEOC’s discrimination lawsuit brought on behalf of a cheerleader against the New Orleans Saints. Saints officials fired Bailey Davis based on an Instagram post where she wore a one-piece outfit. They also conducted an inquiry about her attending a party where a Saints player was present. Davis denies being at the party. However, the scope of this case goes beyond wrongful termination and challenges the team’s policies by alleging a double standard for female and male employees.

Are different rules for men and women discriminatory?

Saints officials put an anti-fraternization policy in place to protect against domestic violence and sexual harassment among players and league employees. The following are the rules that the plaintiff alleges are discriminatory:

Cheerleaders must block players from following them on social media and cannot post photos where they are wearing Saints gear. No such rules exist for the team’s players. Many players use pseudonyms on social media and yet it is the cheerleader’s responsibility to discover this and block them.

Cheerleaders are penalized for pursuing engagement with players while players are not penalized for pursuing engagement with cheerleaders.

Cheerleaders are told not to dine in the same restaurant as players and not to speak to them in any detail. A cheerleader who enters a restaurant and sees a player is dining there must leave. If she is already dining in a restaurant and a player arrives afterward to dine, then she must leave. The same rule does not apply to players.

While the handbook rules aim to protect female employees against sexual harassment, the plaintiff alleges that the burden of avoidance is entirely placed on the females and that it has a harsher impact on them than the male employees.

An arbitration hearing will precede the lawsuit to see if a settlement can be reached.

If the case goes to trial, the court will have to decide where the fine line should be drawn between anti-harassment policies and discrimination.

Our attorneys at Stephen Hans & Associates are glad to answer your questions and provide legal guidance or representation in disputed employment issues.




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Social Media: Should You Use Social Media in an Internal Investigation?
by cjleclaire
May 16, 2018 | 25161 views | 0 0 comments | 1161 1161 recommendations | email to a friend | print | permalink

Investigating Employees Through Their Social Media Accounts

Social media can provide a lot of information about people’s lives. Why would an employer want to know what an employee is doing through social media?

An employer may suspect that an employee is doing other things during work that do not relate to his or her job, such as posting on Facebook, watching Youtube videos, etc. An employer may also wonder if the employee is speaking badly about the company or discussing private company information.

Any number of reasons could motivate an employer to pressure an employee for social media account information or to access the employee’s site without permission.

What laws protect the privacy rights of employees?

The American Bar Association warns employers about not violating the Stored Communication Act (SCA). The SCA includes social networking sites when it states that individuals are subject to criminal and civil actions when the individual:

“Intentionally accesses without authorization a facility through which an electronic communication service is provided”

“Intentionally exceeds an authorization to access that facility”

(By intentionally accessing) “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system”

Keep in mind that a government institution may obtain a subpoena for an investigation and through court approval access social networks for information. However, a private company conducting an internal investigation does not have this right.

Employers who obtain access to social media under false pretenses or through duress can be held liable and courts typically do not view favorably attempts to access an employee’s account information or the private account of a “friend.”

However, in some instances where employers obtain the information without asking or pressuring an employee to provide it, the courts have allowed it.

Get Legal Help with Your Questions about Employment Law

It is often wise to seek legal advice when you have questions about accessing an employee’s social media information. Stephen Hans & Associates offers seasoned legal guidance and representation to assist business owners with employment issues.

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The Stop Sexual Harassment in NYC Act
by cjleclaire
Apr 24, 2018 | 24620 views | 0 0 comments | 1239 1239 recommendations | email to a friend | print | permalink

A New Law to Further the Prevention of Sexual Harassment in NYC Workplaces

The New York City Council recently passed legislation called the Stop Sexual Harassment in NYC Act. If Mayor Bill de Blasio signs the bill, it will go into effect on April 1, 2019.

What changes were introduced?

  • Several major changes included:
  • Mandatory anti-sexual harassment training
  • Employer requirements to display anti-sexual harassment posters of rights and responsibilities and to provide information sheets to employees
  • City Commission requirements to post resources on their website about sexual harassment

Who must receive the mandatory anti-harassment training?

All employers with 15 or more employees (including interns) must conduct yearly anti-sexual harassment training for all their employees. Supervisors and managers must also receive the annual training. The training must cover sexual harassment definitions and examples, bystander intervention education, and education about how to file complaints within the company and at the city, state and federal levels.

New NYC employees who work 80 or more hours per year on a full or part-time basis must receive the training within 90 days of initially being hired. If the employee received the training while working for another employer within the yearly training period, the employee can wait until the next year for annual training. Employers must receive a signed acknowledgement from the employee that he or she received the training.

What notifications must employers provide?

Employers must display a poster of anti-sexual harassment rights and responsibilities in a conspicuous spot and provide new employees with a sexual harassment information sheet that the City Commission has designed. This requirement takes effect 120 days after the mayor signs the act into law.

The City Commission must post resources about sexual harassment on its website and provide specific examples of sexual harassment, retaliation, information on bystander prevention and explanations regarding how to file complaints with the city, state and federal agencies.

(Further information is available at the National Law Review.)

Get Legal Help with New York City Anti-Harassment Law

If you are facing a sexual harassment claim, Stephen Hans & Associates can assist you in protecting your rights. Our firm offers seasoned legal guidance when advising and representing employers in disputed employment issues.

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Employee Salary Histories
by cjleclaire
Apr 19, 2018 | 22251 views | 0 0 comments | 566 566 recommendations | email to a friend | print | permalink

Can Employers Ask Employees About their Salary History?

On May 4, 2017, the New York City Council passed a bill that limited what an employer can ask job candidates about their salary history, compensation history and other past benefits when interviewing them for a job. The law went into effect on October 31, 2017.

The National Law Review explains that new law was part of the New York City Human Rights Law. What this means for employers is that violations are subject to compensatory damages, which could include back pay, front pay, punitive damages, attorneys’ fees, emotional distress, etc.

What was the purpose of passing the law?

The law had the purpose of preventing employers from using a job applicant’s past salary history to determine compensation. The employer cannot ask the job applicant about previous salary history for a current or prior wages, about benefits or other job compensation they have received. It is also unlawful for an employer to ask the previous employer what the individual was being paid or to ask about salary history. The employer also is prohibited from searching public records to obtain a job candidate’s salary history.

When the job candidates volunteer their salary history without any prompting, the employer can legally verify the information with the previous employer and use the salary history in determining the current salary.

What can an employer ask?

Employers can ask about the job candidate’s previous production at the job, such as how much revenue or sales they brought in or about other production statistics related to their work.

Employers can inform job candidates in writing or verbally about the proposed or anticipated salary or salary range for the open position. 

They can also discuss what the job applicant’s expectations are regarding salary, benefits and compensation.

Get Legal Help to Answer Your Questions about Employment Law

Stephen Hans & Associates offers seasoned legal guidance and representation to assist business owners with employment issues.


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