Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
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Employee Salary Histories
by cjleclaire
Apr 19, 2018 | 1187 views | 0 0 comments | 79 79 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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What Employers Should Know About the New York Women’s Equality Act
by cjleclaire
Apr 13, 2018 | 2588 views | 0 0 comments | 221 221 recommendations | email to a friend | print | permalink

Clarifications for Employers for Women in the Workplace

In June of 2014, the Governor Andrew Cuomo of New York signed amendments to the New York State Human Rights Law, which bolstered civil rights for women.

It’s important for employers understand the changes under the Women’s Equality Act so they can abide by the law and avoid discrimination disputes in the workplace.

Womans Equal Rights, NY Equality Act

How does the act affect pay equity?

Women must receive the same pay as men when performing the same work. However, the previous law enabled employers to suspend or terminate employees for discussing their wages with each other. This law prevents employers from firing or suspending employees who discuss wages with each other and also increases the amount in damages an employee can seek if an employer violates the new law.

How did the definition of “employer” change in respect to sexual harassment?

Previously, business owners with four or fewer employees were not considered “employers” under the Human Rights law, and therefore the sexual harassment law did not apply to them. The new law eliminates this distinction, and employees subjected to sexual harassment while working for any size company may file sexual harassment complaints.

Is it lawful to not hire or promote a woman because of her status of being a parent and her familial duties?

The new law prohibits employers, employment agencies, and labor organizations from discriminating against women based on their familial status. They cannot assume that because a women has children or plans to have a family that this fact disqualifies her for hiring or job promotion.

What changes were included in the act that affects pregnancy discrimination?

Employers are obligated to provide reasonable accommodations for pregnant women, due to the fact that certain pregnancies involve medical conditions. The previous law was confusing and often was wrongly interpreted. The new act clarified employers’ responsibilities to perform a reasonable analysis for pregnant employees.

Do You Have Questions about Women’s Rights in the Workplace?

Our attorneys are glad to answer your questions and address your concerns.

Stephen Hans & Associates provides decades of experience to business owners regarding employment related issues.

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How Does the New York Compassionate Care Act Affect Employers?
by cjleclaire
Apr 05, 2018 | 4895 views | 0 0 comments | 326 326 recommendations | email to a friend | print | permalink


The New York Compassionate Care Act (NYCCA) protects patients who are certified to use medical marijuana from being subject to criminal or civil marijuana charges. We live in an age where some states view marijuana as a legitimate medicine for individuals with certain types of diseases while they are being treated under a doctor’s care. Individuals with such diseases are also viewed as disabled, and employers are prohibited from discriminating against them because of their disability based on the ADA (Americans with Disabilities Act).

What Employers Should Know About the New York Compassionate Care Act (NYCCA)

The New York legislature passed the NYCCA in July of 2014 and it went into effect in January 2016. The act will sunset in seven years.

Under the law, there can be no more than five manufacturers that provide medical marijuana in New York with a maximum of 20 locations.

Patients must have their physician provide them with written certification for using medical marijuana and their documentation must state the limitations of its use. They also must register with the health department. Patients may not consume medical marijuana in a public place. Other restrictions imposed by the law are that patients cannot smoke medical cannabis but have to take it in a different form.

Diseases that qualify a patient for certification include cancer, HIV/AIDS, Parkinson’s disease, multiple sclerosis, spinal cord damage causing spasticity, epilepsy, inflammatory bowel disease, neuropathies, or Huntington’s disease. Other diseases may also result in prescribing medical marijuana.

New York State Human Rights Law

The Society for Resource Management (SHRM) points out that the New York State Human Rights Law (NYSHRL) views a certified medical marijuana patient as disabled, which also protects them from employment discrimination.

Employers can still do drug testing if that is part of their work policy and can prohibit employees who are impaired by drug use from working on the job if it poses a danger or interferes with their work. They can prohibit workers from taking medical marijuana while in the workplace. However, they cannot discriminate against employees because they are certified to use medical marijuana. 

Do You Have Questions about the NYCCA and Your Rights as an Employer?

Because disabled employees who are certified for marijuana use can bring discrimination lawsuits against employers, it is vital for employers to know their legal boundaries.

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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MORE ABOUT EMPLOYEE WAGE DEDUCTIONS
by cjleclaire
Mar 30, 2018 | 8074 views | 0 0 comments | 384 384 recommendations | email to a friend | print | permalink
by Stephen D. Hans

As an employer, have you ever wondered if a wage deduction you made was legal? New York Labor Law establishes what is legal and what is not for wage deductions. If you have questions, it is always wise to seek legal counsel from an experienced employment law defense attorney.

The NY legislature passed an amendment to NY Labor Law 193 Deductions from Wages in October 2015. The amendment went into effect on November 6, 2015 and expires on November 6, 2018, unless the legislature renews it. Two main features of the amendment are allowing employers to deduct for over payments and salary advances.

Overpayments

The amendment permits employers to make wage deductions for accidental overpayments. Overpayments refer to payments made due to a mathematical or clerical error by the employer. Note that the employer must provide the employee with a notice of the overpayment deduction prior to commencing the recovery.

Also, regulations govern how the deduction is made based on the size of overpayment along with the timing, frequency, duration and method of recovery. In addition, the employer must provide a procedure for the employee to dispute overpayment amounts and the procedure for recovering it.

Salary Advances

The employer must abide by rules the Commissioner has established for the timing, frequency, duration and method of deduction of a salary advance. There are also limitations on the periodic amount of repayment of the advance. Employers must provide employees with a notice before commencing repayment and also provide a procedure for the employee to dispute the amount or to seek delay of repayment.

In addition to wage advances and overpayments, some of the other allowed deductions include:

  • Insurance premiums
  • Prepaid legal plans
  • Pension or health and welfare benefits
  • Dues or assessments to a labor organization
  • Discounted parking or discounted passes, tokens, fare cards, vouchers or other items that entitle the employee to use mass transit

Do You Have Questions about Wage Deductions?

Our attorneys are glad to answer your questions and address your concerns.

Stephen Hans & Associates provides decades of experience to business owners regarding employment related issues.

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RESTAURANT INDUSTRY: FAQS ABOUT TIPS
by cjleclaire
Mar 30, 2018 | 7608 views | 0 0 comments | 368 368 recommendations | email to a friend | print | permalink
by Stephen D. Hans

Owners in the restaurant industry often have questions about tips. As a restaurant owner, it’s important to know your rights and responsibilities regarding tips so you can avoid disputes with employees and not put your business at risk.

The Fair Labor Standards Act (FSLA), which is federal law, and the New York Labor Law (state law) determine how restaurant owners must deal with tips.

In the past, people paid restaurant bills with cash, but today credit cards are a popular and common form of payment.

How must a restaurant owner deal with credit card tips?

When tips are received by credit card, the owner must pay the employee the tip amount due no later than the regularly scheduled payday. Credit card companies charge a fee to the merchant for use of credit cards, and the fee is a percentage of the total amount paid on the card. The employer deducts the pro-rated share of the credit card company charge from the tip when calculating the employee’s tip.

How must an employee’s wage statement reflect wages and tips?

The wage statement must indicate the amount being paid to the employee in wages and the amount paid in tips.

How should employers handle cash tips?

Employers can allow employees to leave their cash tips with the employer during a particular pay period. However, doing so must be voluntary and up to the employee. Employers can hold tips as a service to the employee, and employers would indicate the amount in tips and wages in the wage statement. Employers cannot make their service of keeping cash tips as a mandatory hiring condition or as a condition for continued employment. If employees allow employers to keep their tips, employers must keep a daily record of tips earned by each employee and have the records available for inspection by the employee and/or the NY Department of Labor.

Do You Have Other Questions about NY Labor Laws that Apply to the Restaurant Industry?

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

 

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POSTERS REQUIRED FOR BUSINESSES UNDER NY EMPLOYMENT LAWS
by cjleclaire
Feb 23, 2018 | 14995 views | 1 1 comments | 630 630 recommendations | email to a friend | print | permalink

What Posters Must Employers Display based on NY Employment Laws?

A number of laws have been passed that require employers to display posters. It is often hard to keep up with all the requirements and know whether or not you’ve displayed all the posters.

The New York Department of Labor has a list of all the posters employers must display. Also, keep in mind that certain types of industries have additional posters to display based on laws related to their specific fields. For example, business owners engaged in the sale or service of food or beverages have additional required posters to display.

The following links provide access to the posters or information about the posters:

All Employers Must Display the Following Posters

Certain Industries Must Also Display the Following Posters

Public Employees: New York State Department of Labor Division of Safety & Health Public Employees Job Safety & Health Protection Poster

Every employer engaged in the sale or service of food or beverages must post the following two posters:

Deductions from Wages

Tip Appropriation

Construction contractors must post the following:

Prevailing Wage Rate

The current Prevailing Rate Schedule must be:

Posted on the site of the public work project where workers can see and access it

Encased in, or made of, weatherproof materials

Titled “PREVAILING RATE OF WAGES” in letters at least 2 inches by 2 inches

Public Work Poster

Construction Industry Fair Play Act (English)

Construction Industry Fair Play Act (Spanish)

Get Legal Help to Deal with Employment Law Compliance

If you have questions as to whether you are incompliance with employment laws, consult with an experienced employment defense attorney. Stephen Hans & Associates offers seasoned legal guidance to assist business owners with employment issues.

 

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Job Termination: What Should You Know?
by cjleclaire
Feb 16, 2018 | 12650 views | 0 0 comments | 706 706 recommendations | email to a friend | print | permalink

Frequently Asked Questions About Job Termination

Deciding to fire or layoff an employee is often a tough decision. Sometimes employees have adverse reactions and retaliate if they believe the termination was unjust.

Here are some answers to common questions about termination provided by the New York Labor Law website:

Does New York State have “employment-at-will”?

New York is an employment-at-will state, which means if your employment contract has no restrictions against terminating an employee’s job, such as a union agreement, you can fire the employee for any reason and at any time. The employee can also resign without giving notice and suffer no legal repercussions. You can fire an employee for any reason or no reason at all.

However, you cannot fire an employee for reasons of discrimination based on the employee’s:

  • Race
  • Creed
  • National Origin
  • Age
  • Disability
  • Gender
  • Sexual Orientation
  • Marital Status

Doing so violates the New York State Division of Human Rights, which is a division of the NY government that can sue you for discrimination.

Other statues, § 201-d and § 215, of the NY State Labor Law also prohibit termination based on:

  • Political or recreational activities outside of work
  • Legal use of consumable products outside of work
  • Membership in a union
  • For complaints made to the employer, Commissioner of Labor or Commissioner’s representative about provisions that are covered in the NY Labor Law.

Shot of a businessman standing in front of a window using a digital tablet

What is your responsibility for giving terminated employees their last paycheck?

You must pay the employees’ paychecks by the regular payday for the last pay period that the employees worked. If employees request that the paycheck be mailed, the employer must mail it.

When you decide to lay off employees, must you give notice of termination?

In 2008, the NY legislature passed the New York State Worker Adjustment and Retraining Notification (WARN) Act, which requires the following:

Employers in the private sector who have 50 or more employees (part-time employees excluded) must provide at least 90 days notice before closing their business. This refers to shutting down a single site of employment that results in laying off 25 or more full-time employees during any 30-day period. Employers must send a WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

If employers are doing a mass layoff (excluding part-time employees) but not closing down the business, they must still provide at least a 90 days notice about the layoff when the layoff affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. Employers must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners.

Stephen Hans & Associates  provides decades of experience to business owners with employment related issues.

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HELPING RESTAURANT OWNERS NAVIGATE THE NEW YORK LABOR LAWS
by cjleclaire
Feb 08, 2018 | 13570 views | 0 0 comments | 507 507 recommendations | email to a friend | print | permalink

FAQ for Restaurant Owners

For restaurant owners, who are busy running their day-to-day business, New York Labor laws can seem like an added burden. Having access to a NY employment defense lawyer is often vital to navigate the laws and make your business successful.

According to the NY State Department of Labor, here are some frequently asked questions employers often ask:

Can you require employees to wear uniforms?

Yes, you can. What is considered a uniform? Black slacks and white shirts are not uniforms. A shirt with the company insignia or custom-made slacks and shirts would be considered uniforms. If your worker’s pay is minimum wage, then the cost of buying the uniform and taking care of it cannot bring the employee below the minimum wage rate. Employers must either clean and take care of the uniforms or pay their employees to care for them.

Are you limited by the number of hours an employee can work in a day?

Except for children under 18, there are no limitations on how many hours in a day an employee can work. There also are no limitations on how early or late an employer can ask an employee to work. However, in the restaurant industry, an employee must have 24 hours of rest one day in a calendar week. This does not apply to small, rural restaurants.

What are the rules for giving workers meal breaks?

For work shifts of more than six hours that begin before 11:00 a.m. and continue until 2:00 p.m., the workers must be provided with an uninterrupted lunch period of at least half an hour between 11:00 a.m. and 2:00 p.m.

Employers do not have to pay for meal periods, and they do not have to provide other breaks for workers. However, if an employer permits a break of up to 20 minutes, then the employer must count it as work time and pay the employee.

Do You Have Other Questions about NY Labor Laws that Apply to Your Business?

Our attorneys at Stephen Hans & Associates are glad to explain the laws, offer legal guidance, and provide representation for employment dispute issues.

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SEXUAL HARASSMENT IN THE WORKPLACE: GUIDANCE FOR EMPLOYERS
by cjleclaire
Jan 25, 2018 | 11730 views | 0 0 comments | 473 473 recommendations | email to a friend | print | permalink

Anti-Harassment Policies and Complaint Procedures

Your employment attorney can assist you with the wording for an anti-harassment policy, especially if you are currently dealing with harassment issues in your business and are seeking legal counsel.

Writing Anti-Harassment Policies

What should you include in a sexual harassment policy?

According to the EEOC, all kinds of harassment can occur in the workplace and sexual harassment is a specific type of discrimination. You want your policy to be broad enough to cover all types of harassment that violate federal law. Harassment involving any type of discrimination is illegal in the workplace. Therefore your policy should state that the employer does not tolerate any harassment based on the following:

  • Race
  • Sex
  • Religion
  • National Origin
  • Age
  • Disability
  • Genetic information
  • Harassment based on opposition to discrimination or complaint proceedings
  • Retaliation against anyone complaining of harassment or participating in an investigation

Harassment Complaint Procedures

Establishing a procedure for dealing with harassment complaints is vital to protect employees and also to protect your business.

What elements should your complaint procedure incorporate?

First of all, as the employer, you should encourage your employees to report harassment. Doing so can help you prevent harassment from becoming severe or widespread.

You should appoint more than one official to take complaints and make sure the officials are accessible for employees — readily available and in locations where employees can contact them. You can decide and designate which officials are appropriate to hear complaints and also make sure that the supervisors hearing complaints report them to management.

Make sure that supervisors and other management personnel protect the confidentiality of the employee who is complaining. While this may not always be possible in every instance, try as much as possible to make confidentiality part of the procedure.

Should you limit reporting complaints to immediate supervisors?

This type of limitation could be detrimental, especially if the supervisor is party to the harassment. Designating an official outside the employee’s chain of command is preferable, and that way you have a better chance of ensuring there is impartial handling of complaints.

Do You Have Other Questions about Dealing with Sexual Harassment Issues in Your Business?

Our attorneys at Stephen Hans & Associates are glad to answer your questions, offer legal advise, and if necessary, represent you in employment dispute issues.


Sexual Harassment in the Workplace: Investigation
by cjleclaire
Jan 23, 2018 | 9662 views | 0 0 comments | 373 373 recommendations | email to a friend | print | permalink

How Should You Conduct Harassment Investigations?

It is vital to conduct an investigation as soon as possible when an employer receives a complaint of sexual harassment (or any other type of discrimination harassment). Delays in investigating can be viewed as neglect and as a failure to take effective measures to prevent harassment in the workplace, which makes employers vulnerable to sexual harassment claims.

harassment Q & A

What Comprises an Effective Investigation?

The EEOC  recommends that employers incorporate the following into their investigations to ensure prompt and effective investigations:

Ensure the investigation is conducted immediately, thoroughly and with impartiality. Individuals who are alleged harassers should have no control, whether direct or indirect, over the investigation.

  • Those who should be interviewed during the investigation include:
  • The employee complaining about harassment
  • The alleged harasser(s)

Anyone with relevant information or who would be expected to have reasonable information about the harassment.

sexual harassment in the workplace, is the employer responsible

Ask the Complainant, Alleged Harassers and Witnesses Specific Questions

The following are some examples of specific questions that the EEOC suggests employers ask during a harassment investigation:

Questions for Complainant

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

was there harassment

Questions for the Alleged Harasser

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions for Witnesses

  • What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you? When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

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

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January 27, 2018
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