Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 455613 views | 0 0 comments | 939 939 recommendations | email to a friend | print | permalink

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Should You Hire Interns?
by cjleclaire
May 23, 2019 | 444 views | 0 0 comments | 116 116 recommendations | email to a friend | print | permalink

New York Laws that Govern Paid and Unpaid Interns

Some businesses hire interns or take on unpaid interns. This may seem like a good idea, and the costs of paying an intern are usually less than a regular worker. However, if taking on an unpaid intern, it is vital that the business owner understands the requirements.

NY law defines the rules that differentiate an employee from an unpaid intern.

If the employment relationship does not meet all the 11 criteria for an unpaid intern, then the employer must pay the intern based on minimum wage law.

NY Law for Hiring Unpaid Interns

Under New York Labor Law, the 11 criteria are as follows:

  1. The training must be similar to training in an educational program.
  2. The training is for the intern’s benefit. An example would be that the academic institution would give the student credit for the internship. Any benefit to the employer would be incidental.
  3. The intern does not replace regular workers and must work under close supervision. When interns receive the same supervision as other employees, it indicates an employee relationship and not an intern relationship.
  4. The employer does not gain an advantage from the intern’s work. In fact, the intern may sometimes actually impede the business’s operations.
  5. Once the internship concludes, the intern is not necessarily entitled to a job.
  6. The intern receives written notification about not being paid any wages.
  7. Persons who supervise the intern must be competent, knowledgeable and have adequate experience to meet the educational goals and requirements of the training program.
  8. Interns do not receive employee benefits (i.e. health and dental insurance, discounted or free goods or services or pension/retirement credit).
  9. The intern is receiving general training for the type of industry or business. The intern is not receiving training for a specific job with the employer who is offering the program.
  10. The employer uses a different screening process to acquire an unpaid intern than the process being used to hire employees. The process is based on an educational program and not a job.
  11. The advertisements, postings or solicitations for interns focus on education rather than employment.

If you have concerns about hiring interns, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in all types of employment related disputes.

 
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Biometrics and Employee Identification
by cjleclaire
May 20, 2019 | 1500 views | 0 0 comments | 326 326 recommendations | email to a friend | print | permalink


New York City Has Proposed a Biometrics Privacy Law

Biometrics is a new technology identification system being used by a variety of industries for various purposes. The primary means of identification include:

  • Fingerprints
  • Handprints
  • Retinal scans
  • Facial recognition
  • Iris scans

Businesses have started using biometrics for time clocks, for entry to secure areas and to login to phones and computers. To this degree, biometrics directly relates to employment situations.

States with Biometric Privacy Laws

While new technology is often uncharted territory from a legal perspective, three states have already adopted biometric privacy laws: Illinois, Texas and Washington. What the laws have in common is requiring consent before collecting biometric information. Illinois law is the most restrictive and requires employers to destroy the employee’s biometric information after a certain period of time if no longer employed by the business.

New York City Proposed Biometric Privacy Law

The National Law Review published an article in January 2019 that described the proposed bill under consideration by the New York City Council. The bill would require businesses to give notice to customers if they are collecting biometric identifier information, and it included a provision that if a person’s information was collected, retained, converted, shared or stored in violation of the law, the person had the right to take legal action.

Under the proposed NYC law, business owners using biometrics would be required to do the following:

  • Post a clear and conspicuous sign in plain language that explains the business is collecting, retaining, converting, storing and sharing biometric information.
  • Business must also make the following available online:
  • How long they are retaining or storing the information
  • The type of biometric information collected
  • Purpose of the collection
  • Privacy policy regarding biometric information
  • Whether they are sharing information with third parties

At this point, employers should be aware of the fact that a biometric privacy law has been proposed. Currently, NY State Labor Law Section 201-a states that unless allowed by law, no employer can require a person to be fingerprinted as a condition for securing employment or continued employment.

Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employment. We represent business owners in employment litigation matters.

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What is the Gender Expression Non-Discrimination Act (GENDA)?
by cjleclaire
May 20, 2019 | 943 views | 0 0 comments | 343 343 recommendations | email to a friend | print | permalink

New York Passed GENDA in January, 2019

With the passage of GENDA, LGBTQ youth and transgender individuals have protection against discrimination and harassment based on New York’s Human Rights Law. In addition, criminal offenses based on gender identity will now fall under the state’s hate crimes law.

Facts About the New Law

GENDA also protects youth against “conversion therapy.” Conversion therapy is a practice that attempts to change a person’s sexual orientation from homosexual to bisexual or heterosexual through the use of psychological or spiritual interventions. Mental health professionals have long known that therapy directed toward changing gender orientation puts patients at risk in terms of their health.

The new law reinforces regulations put in place by the New York Governor Cuomo in 2016, which restricted the use of conversion therapy for minors.

The bill for Gender Expression Non-Discrimination Act (GENDA) had been debated in the state legislature for 16 years, passing the Assembly a number of times and only recently passing the Senate.

What Does GENDA Mean for Employers?

It makes gender identity or expression a protected class in the same way that race, ethnic origin, age, sex, religion, disability and other discrimination categories are protected classes. Discrimination based on gender identity or expression is illegal in the workplace.

It is important for employers to understand the legal definition of this protected class:

The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender. (Legislation.nysenate.gov)

As an employer, you should update your handbook, policies, and training materials to comply with the new law.

Note that inquiring about gender identity or expression during a job interview may also be viewed as discriminatory in the same way that questions about other protected classes are considered discrimination.

If you have concerns about GENDA, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in employment related disputes.

 
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Are Cashless Restaurants Legal?
by cjleclaire
Apr 24, 2019 | 5487 views | 0 0 comments | 1226 1226 recommendations | email to a friend | print | permalink

Could Going Cashless Result in Legal Problems?

Going cashless is an emerging trend that business owners and restaurateurs are discussing, contemplating and testing. Some businesses have already gone cashless.

What Are the Advantages of a Cashless System?

According to CBS News some ideas in favor include:

  • Safer establishments due to no cash on hand
  • Direct reporting into the accounting system
  • More taxes getting paid

What Businesses Have Been Considering Going Cashless?

Bluestone Lane Coffee along with the salad chain Sweetgreen, both located in Philadelphia have gone cashless. They comprise a total of six stores. Nationwide chains including Dos Toros, Dig Inn and Tender Greens no longer accept cash. Companies that have experimented with cashless stores include Starbucks, Milk Bar, Amazon, Walmart and Shake Shack.

Is a Cashless System Discriminatory?

Pew Research conducted a survey that found the following demographics rely on cash for almost all of their purchases:

  • 34% of African Americans
  • 17% of Hispanics
  • 29% of people earning less than $30,000 a year

Are There States or Cities that Have Passed Laws Banning Cashless Restaurants?

Restaurant Business reported that the city of Philadelphia passed a law, becoming the first city in the U.S. to ban cashless systems for local restaurants and businesses. The law goes into effect July 1, 2019.

Massachusetts also banned restaurants and other retail businesses from refusing to accept cash payments. New Jersey recently passed a law, on March 18, 2019, that required businesses to accept cash. The law goes into effect immediately, and businesses face a $2,500 fine for the first offense and a $5,000 fine for the second offense.

Lawmakers in New York City are currently working to pass a bill that will prohibit retail businesses from refusing cash payments.

Is suing a business for going cashless potentially a new form of discrimination lawsuit?

While no lawsuits of this type have been reported in the mainstream media, media outlets are publishing articles arguing that the practice is discriminatory.

If you are considering making the change, it is wise to consult with an attorney and seek legal advice.

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

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Facebook Advertising Algorithms Allowed Advertisers to Discriminate
by cjleclaire
Apr 24, 2019 | 6191 views | 0 0 comments | 906 906 recommendations | email to a friend | print | permalink

In November of 2018, we wrote a blog about allegations that Facebook faced in ad discrimination lawsuits against women.

After 18 months of negotiations, Facebook recently reached a settlement that included paying $5 million. According to USA Today, Facebook primarily derives its income from advertising, which comprises most of the $56 billion in revenue earned last year. Their settlement incorporated provisions for aggressive oversight and their commitment to removing categories from the Facebook platform that enabled advertisers to discriminate based on protected classes.

Not only must Facebook deal with lawsuits, it also must deal with investigations by government entities. The State of Washington conducted an investigation of its ad platform that lasted 20 months, and the company settled this issue in July. The Department of Housing and Urban Development (HUD) is also conducting an investigation.

Ad Platform Allegations

The company’s ad platform contained targeting tools that advertisers could use to focus advertising on specific demographics. However, in areas such as jobs or housing and development, ad targeting enabled Facebook clients to discriminate and not send ads to certain groups of individuals. They could exclude individuals over the age of 40 (age discrimination) or those in particular ethnic or racial groups, such as African Americans, Hispanics and Jews and individuals of a particular sexual orientation.

Advertising that promoted credit cards, renting, housing or job interviews could exclude protected classes and deny them the same opportunities as other demographics.

Settlement Details

Although plaintiffs reached a settlement with Facebook in various lawsuits, they have continued to pursue legal action against the companies that initiated the discriminatory advertising.

Facebook’s settlement terms include having the National Fair Housing Alliance, the ACLU and the Communication Workers of America meet with the company twice yearly for three years to monitor progress. They will be able to identify issues by testing the ad platform. In addition, Facebook has agreed to study and evaluate potential prejudice that its algorithms have incorporated into targeting for ads.

Facebook has already eliminated targeting options for certain types of ads, which will no longer incorporate the option of targeting audiences based on age, genre or zip codes.

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Right to Disconnect Bill in NYC
by cjleclaire
Apr 03, 2019 | 4219 views | 0 0 comments | 165 165 recommendations | email to a friend | print | permalink

Should Employees Have the Right to Disconnect from Work After Hours?

In 2017, a “Right to Disconnect” law passed in France, and a similar bill was introduced to the NYC Council last March. It is currently under consideration.

Living in the Information Age where we are “plugged in” to our electronic devices and spend a lot of time responding to electronic communications poses new challenges. Many businesses use texts, emails, websites and various social media outlets for communication, marketing and as a means of doing business. Consequently, the line between work and private life has become somewhat blurred.

What are employers’ rights? What are workers’ rights? Electronic communications are a new evolving area of law. Any time spent working on a job in addition to the standard 40 hours a week is subject to overtime pay for non-exempt employees.

As with any area of emerging law, there are opposing views. As an employer, you must be aware of new laws that could affect how you run your business.

What Terms and Conditions Does the NYC Right to Disconnect Bill Include?

According to the National Law Review, NYC Council hearings have begun.

The proposed law would require employers with 10 or more employees to do the following:

  • Adopt written policy governing the use of electronic devices and other digital communications outside of work hours
  • Establish the usual work hours schedule for each class of employee
  • Establish the categories of paid time off available to employees
  • Prohibit retaliation against employees who exercised or attempted to exercise their right to disconnect

Remedies against violations would include the following fines:

  • $250 for each instance that an employee would be required to access a work-related electronic communication outside of usual work hours
  • Unlawful retaliation would be subject to full compensation lost, $500, and appropriate equitable relief
  • Unlawful termination would be subject to full compensation lost, $2,500, and appropriate equitable relief, including reinstatement

Whether this bill has enough support to pass the NYC Council remains to be seen, but it is wise to stay apprised of what happens. If it passes, numerous businesses would be affected. The fact that the bill has been proposed is indicative of an issue that may currently exist with employees who want to keep their non-work and work schedule separate.

If you are an employer with questions or concerns regarding employment law issues, our attorneys at Stephen Hans & Associates can provide seasoned legal guidance.

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NY DOL Withdraws Predictive Scheduling Decision
by cjleclaire
Apr 03, 2019 | 3667 views | 0 0 comments | 151 151 recommendations | email to a friend | print | permalink

Predictive Scheduling Changes No Longer Going into Effect

Recently, we released a blog about predictive scheduling changes that the New York Department of Labor had proposed putting into effect. Their proposed changes would have required employers to pay employees for schedule changes that involved reporting to work, for an unscheduled shift (not scheduled 14 days in advance), a cancelled shift, and pay for being on call.

However, pressure from employers resulted in the NY DOL withdrawing its decision to move forward with these changes. The predictive scheduling rules would have resulted in additional costs and rigidity that would have been a significant problem for employers.

The most encouraging aspect of this outcome is that employers were able to express their disagreement, and their concerns received attention. It appears that the DOL agreed that the employers’ concerns had merit.

However, the DOL’s change in decision does not preclude future attempts on the part of the NY Legislature to raise the scheduling issue again.

Scheduling Rules that Are Still in Effect

New York State has scheduling limitations and required payments that remain in effect. They include:

  • Spread of hour pay when employees work a split shift or a shift that extends more than 10 hours from the beginning of the first shift through the final shift. The split shift and spread of hours pay is equal to one hour at the minimum wage rate. (NY State Department of Labor)
  • Employees in certain industries must receive split shift payment for working nonconsecutive hours.
  • Employers must provide call-in pay for employees working less than three or four hours
  • Employers may not schedule employees to work more than seven days in succession.

Our attorneys at Stephen Hans & Associates keep up-to-date with wage and hour law and other employment law changes. We are glad to answer your questions. We have decades of experience assisting employers with many different types of employment related issues.

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Facebook Advertising Algorithms Allowed Advertisers to Discriminate
by cjleclaire
Apr 03, 2019 | 3755 views | 0 0 comments | 173 173 recommendations | email to a friend | print | permalink

In November of 2018, we wrote a blog about allegations that Facebook faced in ad discrimination lawsuits against women.

After 18 months of negotiations, Facebook recently reached a settlement that included paying $5 million. According to USA Today, Facebook primarily derives its income from advertising, which comprises most of the $56 billion in revenue earned last year. Their settlement incorporated provisions for aggressive oversight and their commitment to removing categories from the Facebook platform that enabled advertisers to discriminate based on protected classes.

Not only must Facebook deal with lawsuits, it also must deal with investigations by government entities. The State of Washington conducted an investigation of its ad platform that lasted 20 months, and the company settled this issue in July. The Department of Housing and Urban Development (HUD) is also conducting an investigation.

Ad Platform Allegations

The company’s ad platform contained targeting tools that advertisers could use to focus advertising on specific demographics. However, in areas such as jobs or housing and development, ad targeting enabled Facebook clients to discriminate and not send ads to certain groups of individuals. They could exclude individuals over the age of 40 (age discrimination) or those in particular ethnic or racial groups, such as African Americans, Hispanics and Jews and individuals of a particular sexual orientation.

Advertising that promoted credit cards, renting, housing or job interviews could exclude protected classes and deny them the same opportunities as other demographics.

Settlement Details

Although plaintiffs reached a settlement with Facebook in various lawsuits, they have continued to pursue legal action against the companies that initiated the discriminatory advertising.

Facebook’s settlement terms include having the National Fair Housing Alliance, the ACLU and the Communication Workers of America meet with the company twice yearly for three years to monitor progress. They will be able to identify issues by testing the ad platform. In addition, Facebook has agreed to study and evaluate potential prejudice that its algorithms have incorporated into targeting for ads.

Facebook has already eliminated targeting options for certain types of ads, which will no longer incorporate the option of targeting audiences based on age, genre or zip codes.

 

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Will NYC Pass a Paid Vacation Bill?
by cjleclaire
Mar 11, 2019 | 6702 views | 0 0 comments | 417 417 recommendations | email to a friend | print | permalink

Two Weeks of Employee Paid Vacation

A paid vacation bill is under consideration and Mayor De Blasio has made a pledge to support the bill. It appears the NYC Earned Safe and Sick Time Act will serve as a model for the new paid vacation bill.

The National Law Review stated that no other city or state in the nation has a law like this. New York City would be the first if the law passes.

The paid vacation bill would apply to private sector employers, who have at least five employees, and the requirement to receive the benefit is that the employees must work at least 80 hours a year.

What Are the Requirements of the Earned Safe and Sick Leave Law?

New York City's Paid Safe and Sick Leave Law has the following provisions:

§  Employers with five or more employees, who work more than 80 hours per calendar year in NYC, must provide paid safe and sick leave to employees.

§  Safe and sick leave accrues at a rate of one hour of leave for every 30 hours worked, up to 40 hours per calendar year.

§  Accrual begins on the employee's first day of employment

§  Employees can begin using accrued leave 120 days after their first day of work

§  Employers with fewer than five employees must provide unpaid safe and sick leave.

Paid Family Leave, Another Paid Time-Off Benefit in NY

In addition to the above law, New York also has the new Paid Family Leave benefit, which was passed into law. This paid time off enables employees who are sick, have a sick family member or who have a newborn baby to take paid time off from work. As of 2019, paid family leave is now 10 weeks (previously it was eight weeks) and the average weekly wage for the leave has increased from 50 to 55 percent.

At Stephen Hans & Associates, we work with employers to help them understand and comply with employment laws and deal with employment issues.

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Marijuana Legalization in New York
by cjleclaire
Mar 06, 2019 | 8868 views | 0 0 comments | 436 436 recommendations | email to a friend | print | permalink

Governor Cuomo Is Supporting the Legalization of Marijuana

If the legislature passes the Cannabis Regulation and Taxation Act, Governor Cuomo believes it could generate $300 million in revenue a year for New York.

The legislature is expected to vote on legalizing marijuana on April 1, 2019, and if passed, marijuana could go on sale in April 2020.

Taxes that the law would generate include a 20 percent state tax and two percent local tax on sales from wholesalers to resellers. Taxation for growers would be by the gram.

How Would the Legalization Potentially Affect Business Employers?

While drug testing is more prevalent in the workplace today, testing for marijuana is more complex than testing for alcohol. Also, there are no uniformly established THC levels to determine what would constitute drug impairment under the influence of marijuana. As it stands, observation is the best form of detection and that would include slurred speech, slow reactions, dilated pupils, impaired body movements, poor short-term memory and other physical signs. (Reference: Buffalo Business First)

If you have concerns about employment issues, our attorneys at Stephen Hans & Associates are glad to advise you. We represent employers in employment related disputes and issues.

 

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