|December 11, 2018||Have You Been Accused of Sexual Harassment in the Workplace?||no comments|
|November 16, 2018||Employment Ad Discrimination: Where to Draw the Lines||no comments|
|November 02, 2018||Sexual Harassment Protest: Google Walkout||no comments|
|November 02, 2018||Employers: Do You Have Your Sexual Harassment Training in Place?||no comments|
|October 25, 2018||What Is the Faragher-Ellerth Affirmative Defense?||no comments|
|October 09, 2018||Paycheck Deductions: What Is Legal in New York?||no comments|
|September 20, 2018||Facts About Sexual Harassment in the Restaurant Industry||no comments|
|August 16, 2018||Company Security and Surveillance: Where Should Employers Draw the Line?||no comments|
|August 16, 2018||Changes in New York State and NYC Sexual Harassment Laws||no comments|
|August 07, 2018||How to Survive as a Small Business Owner Among a Myriad of Laws & Regulations||no comments|
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.
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.
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.
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.
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:
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.
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?”
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:
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.
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:
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.
Why Is Sexual Harassment so Prevalent?
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:
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:
The nature of the harassment included:
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.
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 http://hansassociates.com/ provides extensive legal experience to business owners regarding employment related issues.
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.
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.
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.
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.
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.