Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 174641 views | 0 0 comments | 342 342 recommendations | email to a friend | print | permalink

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NEW YORK FIFA — THE FREELANCE ISN’T FREE ACT
by cjleclaire
Jul 12, 2017 | 2233 views | 0 0 comments | 174 174 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 | 2216 views | 0 0 comments | 63 63 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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SEX DISCRIMINATION IN THE MEDICAL FIELD
by cjleclaire
Jun 12, 2017 | 8409 views | 0 0 comments | 293 293 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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Lockheed Martin Age Discrimination Lawsuit | $51.5 Million in Damages
by cjleclaire
Apr 20, 2017 | 16441 views | 1 1 comments | 819 819 recommendations | email to a friend | print | permalink

In January 2017, a federal jury in Camden, NJ awarded a verdict of $51.5 million against Lockheed Martin for alleged age discrimination.

Law.com reported that the lawsuit claimed Lockheed Martin had a practice of laying off older employees and replacing them with newer employees for the same position.

Age Discrimination

Lockheed Martin Age Discrimination Case Details

Plaintiff Robert Braden, whose title was Project Specialist, Senior Staff at the Lockheed Martin facility in Moorestown, NJ brought a lawsuit against the company after being laid off when he was 66 years old. The company laid off five employees out of the 110 employed at the facility, and all five were over 50 years old. Braden said the company gave no reason for laying him off and did not use any objective measures to decide which employees to lay off. Despite laying off employees, the company continued to recruit and hire younger employees for positions Braden was also qualified to hold.

Braden brought the lawsuit under the New Jersey Law Against Discrimination (NJLAD) and the American Discrimination in Employment Act (ADEA).

Work Background Details about Braden, the Plaintiff

Braden first started working for the Moorestown facility in 1984 when RCA was the owner, and as the company went through a series of different owners as a result of mergers and acquisitions, he eventually became a Lockheed Martin employee in 1995.

The Verdict

The jury awarded Braden $520,000 in back pay under the ADEA and another $520,000 for emotional distress. They also awarded $50 million in punitive damages against Lockheed Martin.

If you are a business owner and have questions about age discrimination, consult with an experienced employment lawyer to avoid disputes and lawsuits.

Stephen Hans & Associates is an employment and labor law firm that assists small and medium sized business owners. This has been our legal focus for more than 20 years.

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WHAT IS THE NEW YORK WOMEN’S EQUALITY AGENDA?
by cjleclaire
Apr 20, 2017 | 14932 views | 0 0 comments | 781 781 recommendations | email to a friend | print | permalink

In October 2015, New York passed eight bills that were known as the Women’s Equality Agenda. Seven of the provisions of this law went into effect on January 19, 2016. As an employer, it is important to understand your rights and responsibilities under this new equal pay law in New York.

What Are the Main Changes in the Women’s Equality Agenda that Affect Employers?

One aspect of the Women’s Equality Agenda increases women’s protection against pay differentials based on sex by replacing the current “any other factor than sex” exception, which typically referred to seniority, merit, or a quantity/quality of production system and other non-sex related factors. The law replaces the “any other factor than sex” with “a bona fide factor other than sex, such as education, training or experience.”

The factor must be job-related and the exception would not be valid if the employee could demonstrate that:

  • The employer uses “a particular employment practice that causes a disparate impact on the basis of sex.”
  • There was an alternate employment practice that would accomplish the same business purpose and the “employer has refused to adopt such a practice.”

Also, the law defines “business necessity” as a factor that bears a relevant relationship to the employment in question.

Geographical Location

Two comparable employees in two different physical locations that are in the same geographic region should not show a differential in pay.

Right to Share Wage Information

Companies cannot prohibit employees from sharing wage information, and this would allow employees to discover whether pay was equal for both sexes.

Penalty for Wage Violation

Previously, employees who did not receive equal pay could collect 100% of the pay owed. But under the new law, employers owe them 300% in liquidated damages for the wages found to be due.

If you have questions or concerns about equal pay, Stephen Hans & Associates provide you with legal information and advise you in what to do.

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Best Business Practices When Screening Applicants with Criminal Records
by cjleclaire
Mar 16, 2017 | 15540 views | 0 0 comments | 868 868 recommendations | email to a friend | print | permalink
Author: Stephen D. Hans & Associates

When an applicant with a criminal record applies for a job at your company, the screening can become complicated. You cannot make your decision based on any type of discrimination.

The EEOC provides guidelines you should consider following when asking about criminal backgrounds.

For example, let’s say two applicants have comparable educational and employment experience backgrounds. They are both college graduates in the same field with equivalent job performance histories. Both applicants have criminal convictions for possessing marijuana as minors. One is African American and one is Caucasian. Your reason for hiring one over the other cannot be based on belonging to protected classes under Title VII of the Civil Rights Act including race, color, sex, or nationality.

employment best practices

You should follow these hiring guidelines:

  • Treat applicants with similar criminal records consistently. If you screen out African American candidates because of a particular criminal record then you should also screen out other individuals of different colors and races with the same criminal record.
  • Sometimes a policy or practice can significantly disadvantage people of a certain protected class in a certain region. However, it may be important if you can show that in the geographical area where you are recruiting, the percentage of Hispanics or African Americans with arrest records is not higher than Caucasians in the same area. This establishes that you aren’t disadvantaging protected classes based on criminal backgrounds.
  • Delay asking for criminal background information until later in the hiring process. It’s better if you can evaluate an applicant’s other qualifications before asking about a criminal record. However, depending on the laws where your business operates, you may be required to check criminal backgrounds early in the process.
  • Evaluate the criminal history in relation to the risks and responsibilities of the job. The nature of the crime, how long ago the criminal arrest or conviction occurred and the nature of the job are factors to consider.
  • Treat arrest records differently than conviction records. Arrest records can be inaccurate and are not proof a crime was committed. Even so, an arrest can lead to an investigation of the conduct underlying the arrest and be a factor in a negative employment decision.
  • Review the accuracy and relevance of a conviction record before making an employment decision based on the arrest record. After reviewing the criminal record, you may decide it was inaccurate.
  • Give applicants an opportunity to explain their criminal history. Hearing the applicant’s side of the story is often important, including how their views and life has changed since the arrest or conviction.

Stephen Hans & Associates assists small and medium sized business ownerwith employment related concerns.

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What Kinds of Employment Records Does Your Business Have to Keep?
by cjleclaire
Mar 10, 2017 | 15062 views | 0 0 comments | 175 175 recommendations | email to a friend | print | permalink

There is a lot of administration involved with running a business, and sometimes you wonder what records to keep and how long you have to keep them.

The EEOC (Equal Employment Opportunity Commission)clarifies what your record keeping requirements are under federal law as the following:

  • The EEOC requires you to keep all employment records for personnel for one year. If you fire an employee, then you must keep that former employee’s records for one year from the date of termination.
  • The Age Discrimination in Employment Act (ADEA) requires employers to keep all payroll records for three years. Also if you have employee benefit plans such as pensions and insurance plans, and any written seniority or merit system, you must keep records of these plans for the full time the plan is in effect. Or if you fir the employee, for one year after the employee’s termination.
  • The Fair Labor Standards Act (FLSA) requires you to keep records that could be applicable to the Equal Pay Act (EPA) for at least three years. This includes any records that would explain the reason for paying different wages to employees of opposite sexes who work in the same establishment. You should keep for at least two years records that show wage rates, job evaluations, seniority, merit systems and collective bargaining agreements.

employment records

 

What Records Do You Need if the EEOC Files a Charge on You?

While no one wants to think about having a claim filed against the business with the EEOC, it’s good to be prepared in the event it happens. Let’s say you discover an employee has filed a claim with the EEOC against you. First of all, you’ll receive an EEOC Notice of Charge in the mail that explains your record keeping requirements. You must maintain:

  • Personnel or employment records pertaining to the matter charged and under investigation
  • Matters related to the person bringing the charge or persons allegedly aggrieved according to the charge
  • Records for all other employees holding or seeking similar positions to those people allegedly affected

You must keep these records throughout any EEOC investigation. After the investigation, there is a final disposition period, which means a 90-day statutory period within which the aggrieved person, the party bringing the charge, or the EEOC may file a lawsuit. You must keep records during the disposition period and also throughout the lawsuit and during any appeals being decided.

If you have questions about record keeping or need representation during an EEOC claim, Stephen Hans & Associates can provide you with seasoned legal guidance and litigation.

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Is It Time to Update Your Severance Agreements?
by cjleclaire
Feb 28, 2017 | 11383 views | 0 0 comments | 173 173 recommendations | email to a friend | print | permalink
Author: Stephen D. Hans

Keeping your handbooks, employment agreements, severance agreements and other documents current with laws and legal trends can seem like a lot of work. However, when you get caught on the wrong side of a legal dispute, hindsight says it was well worth the time.

The National Law Review recently published an article entitled “SEC Targets Severance Agreements that Impede Whistleblowers”. The article lists a number of companies the SEC went after because their severance agreements that employees signed had clauses that warned the employee would waive severance or other benefits if they engaged in the following types of activities against the company:

  • Filing a complaint with the SEC
  • Filing a complaint with a government agency
  • Disclosing confidential information, except when disclosure is required by law, in response to a subpoena or with the company’s permission
  • Relaying communication that disparaged, denigrated, maligned or impugned the company or its officers, directors or other associates
  • Voluntarily communicating or contacting a government agency

severance agreements

 

SEC Settled with a Number of Companies

Between 2015 and 2016 and continuing into 2017, the SEC has settled with a number of companies. While names were withheld, examples of settlements included:

$130,000 owed in penalties and an agreement put in place to amend confidentiality statements stating that employees were allowed to report possible violations to the SEC and other government agencies

  • $180,000 penalty
  • $1.4 million penalty
  • $340,000 owed in penalties and the implementation of a mandatory yearly training program to inform employees about their whistleblower rights

Employee termination agreement or contract

 

EEOC Targets Companies

The EEOC has also targeted companies with severance agreement clauses that interfere with the EEOC’s ability to investigate possible discrimination violations.

Get Legal Help with Revising Documentation

Private companies along with public companies are at risk for lawsuits if their legal documents contain clauses that impede employees in regards to reporting information to government agencies.

Stephen Hans & Associates assists small and medium sized business owners with regulatory and employment related concerns.

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July 01, 2017

Recent Ruling on Tip Credits, Tip Pooling and Tipped Employees
by cjleclaire
Feb 24, 2017 | 11712 views | 0 0 comments | 481 481 recommendations | email to a friend | print | permalink

The Ninth Circuit Court decision in a recent case was a landmark ruling that favored tipped employees in the debate of tip pooling. It clarifies whether an employer who is not taking a tip credit can do tip pooling, which divides tips among tipped and non-tipped employees.

The Issue with Tip Pooling with Non-Tipped Employees

The National Law Review  discussed the case of Oregon Rest & Lodging Ass’n v. Perez, which was appealed to the Ninth Circuit Court.

The crucial question was whether employers have the right to share the tips of waitresses, bartenders and casino dealers, etc. (tipped employees) with non-tipped employees like busboys, hostesses and floor managers. When a tipped employee works hard to deliver great customer service and as a result of such efforts receives a large tip, then having to turn it over to other non-tipped employees seems rather unfair.

What Does the FLSA Say?

The Fair Labor Standards Act (FLSA) makes it clear that when employers take a tip credit and pay non-tipped employees less than minimum wage, the tipped employees must receive their tips. However, when the employer does not take a tip credit and tipped employees receive minimum wage or higher, are the tips fair game for pooling among employees?

DOL Rule About Tip Pooling

The Department of Labor (DOL) established its own rule in 2011 because the FLSA wasn’t clear on this point. The DOL decided tipped employees still deserved their tips and pooling was unfair.

Recent Case Conclusion

The Ninth Circuit reviewed at the issue from different angles and various precedent setting cases. It also considered the intent of the law. A Senate Committee report stated, “Tipped employees should have stronger protection” and “tip is … distinguished from payment of charge … [and the customer] has the right to determine who shall be the recipient of the gratuity.” The court majority decided that the DOL rule was fair and that tips are the property of the tipped employee whether the employer claims a tip credit or not.

Stephen Hans & Associates represents business in disputes and provides legal advice to help them deal with employment and labor issues.

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Lilah Beau
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July 11, 2017
Right when a tipped agent attempts to pass on mind blowing customer advantage and due to such attempts gets an immense tip, by then turning it over to other non-tipped specialists seems, by all accounts, to be to some degree out of line.

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Employers, Protect Yourselves | 2017 Harassment Claims
by cjleclaire
Jan 20, 2017 | 13671 views | 1 1 comments | 735 735 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

The Equal Employment Opportunity Commission (EEOC) has spent considerable researching and analyzing harassment claims related to federal anti-discrimination laws. Such laws protect individuals based on race, color, religion, sex, national origin, disability, age or genetic information harassment.

business-people-hans-blog

According to the Chair of the EEOC, Jenny R. Yang :

“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces.”

The Commission has opened up to the public for input on proposed enforcement guidance.

Harassment Claims on the Rise in the Workplace

Between 2012 and 2015, harassment claims from the private sector increased from slightly more than 25% to 30% to 31% percent of the federal charges filed for 2013, 2014 and 2015 respectively. Dealing effectively with harassment has been an EEOC priority since 2013.

Guidance Based on the Harassment Prevention Report

Employers can benefit from reading about the EEOC’s positions on harassment law. The report gives explanatory examples and recommends practices that companies can implement.

Employer discrimination

Information Contained in the Report

The report describes the scope of hostile work environment claims. It gives examples so you understand the extent to which harassment can occur outside of the regular place of work and how it can impact the workplace. It covers subjectively and objectively hostile work environments.

It can help you determine whether the harassment is severe or pervasive. A single severe incident of harassment can result in a hostile work environment. Pervasive, which means ongoing actions, can also result in a hostile work environment, and the report provides examples of pervasive harassment.

Numerous best practices actions exist that employers can take. One is conducting anonymous employee surveys on a regular basis to detect whether harassment is occurring. Repeated communication to employees about how the company provides easy access to a complaint system is another example. You can implement practices that protect both yourselves as employers and your employees.

You can download the EEOC Proposed EG on Unlawful Harassment for Public Input and provide your feedback to the EEOC.

Stephen Hans & Associates is an employment litigation firm. We have assisted small and medium sized businesses with employment law issues for more than 20 years.

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July 13, 2017
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