Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 203224 views | 0 0 comments | 397 397 recommendations | email to a friend | print | permalink

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Overtime Myths in the Restaurant Industry
by cjleclaire
Oct 11, 2017 | 2431 views | 0 0 comments | 201 201 recommendations | email to a friend | print | permalink

Overtime myths can circulate in any line of work, and the restaurant industry is no exception. Some of the most prevalent myths deal with wages and overtime. As an employer, it is vital that you don’t fall for these myths because they could lead to unnecessary disputes, lawsuits or compliance penalties.

An Employee Can Waive the Right to Overtime

Sometimes employers get the idea that if an employee is willing to work longer hours and waive overtime, it works out well for both of them. However, under the FLSA (Fair Labor Standards Act) , when an employee who is not an exempt employee (not a manager, executive, etc.) works overtime (over 40 hours in a workweek), employers must pay the employee for overtime. A workweek can begin or end on any day that the employer designates.

In fact, an employee, who waived overtime, actually has the legal right to turn around and sue the employer for overtime pay.

An Employer Can Compensate an Employer in Other Ways than Paying Overtime

Another myth is that an employer can compensate an employee who works more than 40 hours by giving the employee extra time off called compensatory time or “comp time.” Employers cannot compensate in ways other than paying overtime. The FLSA requires overtime work to be paid at a rate of not less than one and a half times the employee’s regular pay rate.

An Employer Does Not Have to Pay Overtime for Unauthorized Overtime Work

It can be frustrating for employers who instruct their employees not to work over 40 hours and discover that unauthorized work was done. Employers may feel justified in not paying the employee overtime. However, overtime work must be paid, whether it was authorized or not. Employers can devise other ways to penalize employees who work unauthorized over their 40 hours but they cannot deny them overtime pay.

Legal Representation for Employers

When you have questions about overtime, wage and hour or other employment issues, it is wise to consult with an experienced employment law defense attorney. Stephen Hans & Associates has assisted employers for more than two decades with employment issues.

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Starbucks Baristas Complain About Company’s Parental-Leave Policies
by cjleclaire
Sep 25, 2017 | 5007 views | 0 0 comments | 483 483 recommendations | email to a friend | print | permalink
Posted on by sdhans

Starbucks made its company stand out from many others when it put in place a six-weeks paid parental leave policy for eligible birth mothers. Starbucks made this a nationwide policy. Indeed they did stand out as being “a different kind of company” that “put our people first.” (Grub street.com)

However, female Starbucks executives get 16 weeks of fully paid parental leave and male executives get 12 paid weeks. Starbucks considers this difference in paid parental leaves a fringe benefit to attract executive talent to the company’s ranks.

A group of baristas met with Starbucks executives to discuss making the leave policy universal, but executives told them to view it as a very competitive benefits package instead. There was no discussion about making the policy universal.

What Is U.S. Federal Law on Parental Leaves?

A parental leave applies to both parents and is a leave from work taken after a child is born, adopted, or placed as a foster child. Under the Family Medical Leave Act (FMLA), which is federal law, parents may take this leave any time during the first year of having the child with them.

psrenting or psrensl leave

The FMLA does not require employers to pay employees for the time off, but it does require larger employers to provide up to 12 weeks of unpaid leave per year to workers who need to take the time in caring for a new child.

Did you know that the United States, Suriname, Papua New Guinea and several Pacific Ocean island countries are the only countries the world that do not have laws requiring employers to pay for parental leaves?

Given the status of parental leave in the U.S., Starbucks has been quite generous in making its parental leaves “paid” time off.

Do You Have Legal Questions About Pregnancy Leaves or Parental Leaves?

If you have questions, our attorneys at Stephen Hans & Associates are glad to help. We can provide you with seasoned legal advice based on more than 20 years of employment law experience.

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What Are Wage Theft Lawsuits in the Restaurant Industry?
by cjleclaire
Sep 12, 2017 | 5080 views | 0 0 comments | 488 488 recommendations | email to a friend | print | permalink

A number of wage theft lawsuits and settlements have been occurring during the past five years. However, they haven’t received as much media attention as restaurant workers’ fight for higher minimum wages.

As a restaurant owner, you should be aware of what wage theft is and the ways it can occur. Ensure your restaurant managers aren’t engaging in wage theft activities.

Examples of Wage Theft and Related Lawsuits

Large chain restaurants have been subject to lawsuits for reducing hours, not paying proper wages for side work and for misappropriating tips.

Requiring workers to work off the clock is not legal but some chain restaurants have been settling claims that allege they’ve been doing this. The Huffington Post reported about several well-known restaurant chains that settled or paid huge sums in wage theft lawsuits.

 

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Ruby Tuesday settled a case for $3 million in 2014. The restaurant avoided paying bartenders and servers overtime by having them do checklists before or after clocking in for work. They also shaved hour totals down to 40 hours/week when workers went over 40 hours.

Outback Steakhouses settled a $3 million lawsuit to workers claiming that the restaurant required workers to complete pre-shift work before clocking in.

A Papa John’s New York franchise had to pay more than $2 million in overtime rates under the order of New York State Attorney General Eric Schneiderman for rounding down hours worked to the whole number to avoid paying overtime, and for paying workers the “tipped minimum wage” when they mainly did un-tipped work and for not reimbursing employees for the purchase and maintenance costs of bicycles used in deliveries.

Red Robin Restaurants in Pennsylvania paid $1.3 million for requiring tipped workers to share tips with kitchen expeditors when the restaurant was taking tip credits and not paying servers a full minimum wage. Kitchen expeditors had no contact with customers and did not qualify to be paid as tipped workers.

What Are Wage Theft Lawsuits in the Restaurant Industry?

Johnny Rockets had to pay 55 servers more than $570,000 under order of the Department of Labor (DOL) because they required servers to share tips with cooks and dishwashers.

Fourteen TGI Fridays servers received $485,000 to settle claims for having to spend more than 20 percent of their work time doing side work instead of directly relating to customers, which violates the 80/20 rule for tipped employees. Part of this settlement amount was also due to being forced to work off the clock.

Are You Concerned About Wage Theft?

If so, get legal advice as soon as possible. Stephen Hans & Associates is an employment law defense firm and can advise the best course of action for you to take as an employer

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Baawda
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September 13, 2017
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National Origin and Race Discrimination and Retaliation: EEOC Sues Long Island Company
by cjleclaire
Sep 12, 2017 | 5071 views | 0 0 comments | 445 445 recommendations | email to a friend | print | permalink

Claims of national origin and race discrimination along with retaliation were the basis of an EEOC lawsuit brought against a Long Island Company headquartered in Massapequa, NY in August 2017.

A&F Fire Protection Co, Inc. is a sprinkler installation company that allegedly violated federal law by allowing a hostile work environment where black and Hispanic employees were routinely subjected to racial insults.

Details of the National Origin and Race Discrimination Allegations

The EEOC’s lawsuit alleged that repeated racial harassment occurred with workers being called the “N-word,” “spics,” “jigaboo,” and “wetbacks.” The company failed to take action to end the discrimination and instead either forced complaining employees to quit or fired them, which is retaliation under federal law.

Prior to filing a lawsuit, the EEOC used its conciliation process to try and reach a settlement. The lawsuit against the company seeks the following:

  • Back wages
  • Compensatory damages
  • Punitive damages
  • Changes in employment policies to prevent future harassment or retaliation

The EEOC New York District Office Regional Attorney Burstein pointed out that the abuse was pervasive and that upon learning about racial harassment, employers are obligated by law to ensure it stopped. The EEOC New York District Office Director Kevin Berry emphasized that retaliation against the employee who complains against discriminatory behavior is one of the EEOC’s top priorities when reviewing claims. Another EEOC Trial Attorney, Kirsten Peters reminded employers that even one utterance of a racial slur by a supervisor in a workplace constitutes a hostile work environment and can be legally actionable based on recent case law.

At the First Sign of a Discrimination Dispute, Consult with an Employment Defense Attorney

At the first sign of a discrimination dispute in your workplace, you should consult with an employment defense attorney. Had the above company consulted with an experienced lawyer instead of retaliating, it’s likely they could have made the necessary changes in employment polices and settled outside of court, avoiding the high costs of litigation and potential punitive damages that the EEOC is pursuing.

Legal Representation for Business Owners

Business owners can rely on the decades of experience that our attorneys at Stephen Hans & Associates have had in successfully dealing with employment issues.

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Gurugramhu
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September 14, 2017
It's a good concept, a game should be able to bind the player for at least 20 minutes, and these free games without WiFi have that ability.

How Can You Find Out What Federal Employment Laws Apply to Your Business?
by cjleclaire
Aug 31, 2017 | 6132 views | 0 0 comments | 293 293 recommendations | email to a friend | print | permalink

Running your own business can feel overwhelming when you get a glimpse of all the laws that affect your operation.

It is smart for business owners to consult with an employment attorney to ensure handbooks, contracts, non-disclosure agreements and other legal documents are in order. Even so, there is a certain amount of self-education that is necessary. At Hans & Associates we like to keep our clients apprised of tools that can assist them with gaining legal understanding and remaining in compliance with employment laws.

 

Federal Employment Laws at Elaws

For federal laws, the Department of Labor (DOL) has a tool called Elaws , which includes the FirstStep Employment Law Advisor and other advisors that are useful. You can obtain a basic understanding of federal employment laws that relate you your particular industry.

FirstStep Employment Advisor

For example, the FirstStep Employment Advisor takes you through the basics, such as: do you know which posters federal law requires your company to display? You can answer “no” and then choose the link that applies to your industry. Restaurants, hotels, caterers, etc. is one category; agriculture is another, and so on.

Piggybank and calculator. Isolated on white background

FirstStep is just one of a number advisor categories that provide regulatory information about employment law. Here are other areas you can access:

  • Pay and Benefits
  • Safety and Health
  • Posters and Record keeping
  • Youth Employment
  • Veteran’s Issues
  • Fair Labor Standards Act (FLSA)

With Pay and Benefits, you can use the advisor to help you calculate overtime pay. Or you can get help deciding whether a particular employee is exempt from the minimum wage and overtime requirements. You may have questions about whether a work related activity counts as “hours worked” and whether you owe the employee pay for it.

Consult with Experienced Employment Defense Lawyers

If you have questions about employment law compliance issues or legal concerns, our attorneys at Stephen Hans & Associates are glad to help. We can provide you with seasoned legal representation based on more than 20 years of employment law experience.

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How Many Racist Statements Does It Take to Create a Hostile Work Environment?
by cjleclaire
Aug 16, 2017 | 5965 views | 0 0 comments | 95 95 recommendations | email to a friend | print | permalink

If is severe enough, one racist statement can create a hostile work environment, according to the United State Court of Appeals for the Second Circuit. This court hears appeals for New York, Vermont and Connecticut.

As reported in The Legal Intelligencer , in the case Daniel v. T&M Protection Resources, Inc., the plaintiff alleged harassment, termination and retaliation because of the worker’s race, national origin and sexual orientation.

Details of the Daniel v. T&M Protection Resources, Inc. Appeal

The court concluded that the single use of the N-word as a severe racial slur was sufficient evidence to overcome the defense’s request for summary judgment in the hostile work environment claim. Previously, the district court had found in favor of the company, Protection Resources, which is located in Manhattan.

Daniel Otis worked as a fire safety director at the company and was eventually terminated in retaliation for his complaints of discriminatory treatment.

Among various derogatory comments the supervisor made about Daniel were slurs about his looking like a gorilla, complaints about his English accent and telling him to go back to England. He also rubbed his genitals against him and asked him whether he was gay. At one point the supervisor became angry and called him the N-word. A week after filing his complaint, Daniel was under investigation and then the company fired him for receiving personal mail at the workplace.

The district court found that use of a racial slur during one yelling incident was not enough to constitute a hostile work environment claim.

However, the appeals court ruled that the lower court erred in adjudicating that a one-time use of a severe racial slur did not support a hostile work environment claim. It was the court’s opinion that the use of the unambiguously racial epithet, “n—–,“ by a supervisor in the presence of his subordinates was a single act that can quickly alter employment conditions and create an abusive working environment.

Are You a Small or Medium-Sized Business Owner Facing Hostile Work Environment Allegations?

If so, get legal advice as soon as possible. Stephen Hans & Associates is a New York law firm with decades of experience representing business owners in employment disputes.

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September 26, 2017
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Race Discrimination Lawsuit: Rosebud Restaurants Settled, Paying $1.9 Million
by cjleclaire
Jul 26, 2017 | 7649 views | 1 1 comments | 388 388 recommendations | email to a friend | print | permalink

Author: NYC Employment Defense Attorneys

In a race discrimination lawsuit, the EEOC sued Rosebud Restaurants and parties settled for the amount of $1.9 million.

The EEOC brought a lawsuit against Rosebud, which operates 13 Italian restaurants in Chicago and nearby suburbs.  The restaurants were not hiring African Americans, and restaurant managers and the Rosebud owner Alex Dana used racial slurs when referring to African Americans. When the EEOC started investigating, a number of the restaurants had not hired any African American employees at all. In addition, Rosebud failed to maintain employment applications for one year, which violated federal law. The restaurants also failed to file employer information reports, which would contain information such employment by job category, race, ethnicity and gender.

Before taking legal action, the EEOC first attempted to use its conciliation process to resolve the issue. When a settlement could not be reached, it filed a lawsuit for racial discrimination in hiring based on Title VII of the Civil Rights Act of 1964.

Outcome of the Race Discrimination Lawsuit

Details of the settlement include:

  • African American applicants who were denied jobs will receive $1.9 million from Rosebud.
  • Rosebud now has hiring goals for qualified African American job applicants, including that 11% of future employees will be black.
  • The settlement decree prohibits Rosebud from engaging in future racial discrimination or retaliation
  • Rosebud must recruit African American applicants
  • Rosebud must train managers and employees against race discrimination and retaliation
  • For four years, Rosebud must periodically submit reports to the EEOC that show compliance with the settlement decree’s terms
  • Rosebud must post notices that inform employees about the decree’s terms

The parties were able to resolve the lawsuit through lengthy negotiations. The negotiations occurred prior to depositions and significant pre-trial motions that could have resulted in considerable litigation costs.

Consult with Experienced Employment Defense Lawyers

If you face employment issues such as discrimination or wage and hour disputes, Stephen Hans & Associates can provide you with seasoned legal representation based on more than 20 years of employment law practice experience.

 


 
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pradip
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August 29, 2017

NEW YORK FIFA — THE FREELANCE ISN’T FREE ACT
by cjleclaire
Jul 12, 2017 | 10288 views | 0 0 comments | 452 452 recommendations | email to a friend | print | permalink

What does FIFA mean for business owners?

Small business owners in New York City already are under a lot of regulations, but even so, another one has been added to the list — FiFA, The Freelance Isn’t Free Act.

The act passed in the fall of 2016 and went into effect on May 15, 2017. New York City is the first city in the nation to have this kind of law.

FIFA Guidelines that Business Owners Must Abide By

The NYC.gov site explains the responsibilities for business owners as outlined in the law.

Hiring Party Definition

A business other than a government entity that hires a freelancer is a hiring party.

Freelance Workers

Any individual that a business owner hires or retains as an independent contractor to provide services in exchange for compensation is a freelance worker. A few common examples are home contracting and repair, photographers, graphic and web designers and translators. You may want to consult with an employment defense lawyer if you have questions as to whether someone working for your business meets the legal definition of an independent contractor/freelance worker.

Written Contracts

All work that is done for $800 or more within a 120-day period must have a written contract. You and the freelance worker must both keep copies of the contract.

Timely Payment

You must pay the freelance worker for all completed work on or before the date stated in the contract. If the contract does not state a payment date, then payment is due within 30 days after the freelancer finishes the work.

Legal Recourse

A freelance worker has the legal right to file a complaint with the DCA’s Office of Policy & Standards, and the DCA notifies business owners when a complaint is filed. The business owner must respond to the notice of complaint in writing within 20 days. In civil actions filed by freelancers, the judge will presume the violation occurred if the business owner hasn’t responded to the notice.

Retaliation

Retaliation against freelancers, which includes penalizing, threatening or blacklisting freelancers for exercising their legal rights is illegal.

Civil Actions

As a result of a civil action, if the court finds the business owner violated FIFA, the business can be liable for:

  • Double damages for late payment or nonpayment
  • Additional damages for failure to provide a written contract or retaliation
  • Attorneys’ fees and costs

Stephen Hans & Associates has decades of experience assisting business owners with employment related concerns.

 

 
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July 20, 2017
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NYC Carwash Law Ruled Illegal Due to Promoting Unionization
by cjleclaire
Jul 12, 2017 | 10039 views | 0 0 comments | 434 434 recommendations | email to a friend | print | permalink

Recently a NY federal judge ruled that the NYC Carwash law was illegal because it promoted unionization of carwashes.

 

In 2015, the NYC Council passed a law to regulate car wash businesses. The Council believed the law would protect low wage car wash employees who were being denied proper wages and tips by requiring carwash owners to carry bonds. Shops that had not unionized had to buy a $150,000 bond. Unionized shop owners only needed to purchase a $30,000 bond because workers would have stronger protections through a union.

A group of NYC car wash owners sued the city over the new law and alleged that it illegally favored unionized car washes.

Federal Court Ruling on Unionization and NYC Carwashes

A federal judge of the Federal District Court in Manhattan heard the case and ruled that the NYC law violated federal law because it favored unionization and “impermissibly intrudes on the labor-management bargaining process.” (The New York Times ) The United States Supreme Court had ruled on similar cases to this in the 1970s and 1980s.

The law would have affected the estimated 100 to 200 NYC carwash businesses, of which less than 10 percent are unionized.

Due to the lawsuit, the 2015 law had never gone into effect and awaited the court ruling.

The president of the union representing carwash workers said he would support one level of bond, valued at $150,000 for all carwash owners. These surety bonds ensured that workers would have money available in the event of wage theft.

Are You a Small or Medium-Sized Business Owner Facing Unionization?

If so, get legal advice and ensure you protect your rights. Stephen Hans & Associates is a New York law firm that assists business owners with employment and labor law issues. We have decades of experience helping businesses with unions and unionization issues.

 

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amali
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August 10, 2017
The Council believed the law would protect low wage car wash employees who were being denied proper wages and tips by requiring carwash owners to carry bonds. Shops that had not unionized had to buy a $150,000 bond. Unionized shop owners only needed to purchase a $30,000 bond because workers would have stronger protections through a union. buy uk assignment online

SEX DISCRIMINATION IN THE MEDICAL FIELD
by cjleclaire
Jun 12, 2017 | 15404 views | 0 0 comments | 348 348 recommendations | email to a friend | print | permalink

Sex discrimination occurs frequently in the medical field. It often manifests in the form of disparaging comments made to a female doctor about whether she intends to have children or not.

According to an article in NPR, the Physician Moms Group (PMG) is a professional forum where female physicians interact and receive support from each other regarding various types of work related issues. The group has more than 65,000 members. Thousands of members’ Facebook posts have appeared in the PMG forum where mothers talk about balancing motherhood and their professions.

Research Study by JAMA Internal Medicine

Motivated by the extent of the PMG posts, researchers undertook a study, which was recently published in JAMA Internal Medicine. The study showed survey results of more than 6,000 physician mothers.  Professionally, these mothers encompassed a broad span, ranging from pediatricians to surgeons. The survey asked questions to determine whether workplace discrimination existed, and in particular, whether it existed regarding motherhood.

The following were the published results:

  • Of the total number of female physicians, 77.9 percent reported discrimination (4 out of 5).
  • Nearly 66 percent reported gender discrimination.
  • About 33% reported maternal discrimination, which included discrimination based on pregnancy, a maternity leave or breastfeeding.
  • All of the women who reported maternal discrimination said the discrimination was based on pregnancy or a maternity leave.
  • About 50 percent said the discrimination was due to breastfeeding.

What form did the discrimination take?

  • Disrespectful treatment (the most common)
  • Being excluded from administrative decision-making
  • Unequal pay and benefits compared to male counterparts

Repercussions on the Medical Field

Aside from the potential repercussions of discrimination lawsuits, the medical field already faces staffing challenges. Approximately 50 percent of the women, who experienced maternal discrimination, also complained of professional burnout.

In fact, statistics show that women have a higher incidence of being at risk for self-reported burnout than men. Today, about one third of all practicing physicians are women. Projections indicate there will be a shortage of 90,000 physicians by 2025. This is crucial given the fact that the country already faces a growing and aging population that needs medical attention.

Administrators in the medical field are wise to deal with any instances of workplace discrimination and should put firm policies in place to prevent its occurrence.

Stephen Hans & Associates  has decades of experience assisting business owners with employment related concerns.

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