Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
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Best Business Practices When Screening Applicants with Criminal Records
by cjleclaire
Mar 16, 2017 | 3174 views | 0 0 comments | 252 252 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 | 4911 views | 0 0 comments | 326 326 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 | 4616 views | 0 0 comments | 105 105 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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Recent Ruling on Tip Credits, Tip Pooling and Tipped Employees
by cjleclaire
Feb 24, 2017 | 5370 views | 0 0 comments | 303 303 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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Employers, Protect Yourselves | 2017 Harassment Claims
by cjleclaire
Jan 20, 2017 | 7726 views | 0 0 comments | 582 582 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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How Do Workers Feel About Overtime Pay?
by cjleclaire
Jan 12, 2017 | 6417 views | 0 0 comments | 435 435 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

The federal overtime rule has been put on hold, and employers are waiting to see whether the DOL will effectively appeal the injunction imposed by the U.S. District Court in Texas. However, it’s worth your while to consider what kinds of problems the rule sought to resolve and where today’s workforce stands on certain issues.

Today’s Workplace Issues with Overtime

With businesses using texting and emails, the line between work and home life continues to blur. Many workers don’t consider the time they spend on texts or emails outside of work as hours working off-the-clock. A Harris Poll conducted in 2016 showed that 63% workers would work-off-the-clock even if doing so was against company policy.

Here is what survey done by The Workforce Institute revealed:

An overwhelming 81 percent of U.S. salaried employees report they conduct work outside of their standard work hours — often more than once a week.

Why Do Employees Work Off-the-Clock?

Reasons given include urgent deadlines and heavier-than-usual workloads. One-third of those surveyed said they have more work than they can complete during regular work hours.

What Matters Most to Employees?

According to a worldwide survey conducted by Ernst & Young, workers struggle to manage work and family. They give underlying reasons for struggles, such as:

  • Expenses have gone up but salaries haven’t
  • Work responsibilities have increased
  • Younger workers now have children, which means more responsibilities at home
  • The lack of opportunity to advance
  • Excessive overtime hours
  • Work environments that don’t encourage teamwork
  • Employers that don’t allow flexible work schedules

In fact, lack of flexible work schedules rank near the top as reasons to quit one job and take on another, surpassed only by competitive pay and benefits.

Desired Changes in the Work Environment

Balancing home life with work matters significantly because top desirable workplace changes included:

  • Paid parental leave onsite or subsidized childcare
  • Telecommuting one or two days a week
  • Relocating closer to family
  • The ability to shut off emails and calls when needed

While workers want more pay, and certainly pay for overtime, many also simply want more time to spend away from work with their families.

Stephen Hans & Associates works with business owners to help them deal with employment and labor issues.

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Employers Walk the Line on Employees’ Social Media Comments
by cjleclaire
Nov 23, 2016 | 11310 views | 0 0 comments | 334 334 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

As employers, if you feel that an employee’s comment on social media, such as Facebook or Twitter is damaging to your business’s reputation, it is wise to seek legal counsel before firing the employee. Employers can end up in a wrongful termination lawsuit if they do not carefully walk the line where social media is involved. They also may be subject to publicity backlash.

New York Employment-at-Will

Like most states, New York is an “employment-at-will” state. Under the NY Labor Code this means an employer can at any time and for any reason terminate the employment of a worker unless a law (for example discrimination laws) or agreement (union labor contract) provides otherwise.

Employer Social Media Policies

A Forbes Magazine article points out that employers can issue policies that prohibit employees from revealing trade secrets, criticizing customers or creating a hostile work environment through social media posts about the company. Doing so is within their legal rights and protects the company.

However, if an employee has a grievance against the company that is discussed with other company employees online, National Labor Relations Board  (NLRB) advisories and rulings protect employees under these circumstances — even when they’re not union members. Such communication is protected when it aims to improve working conditions.

To Terminate or Not to Terminate an Employee?

Another important factor to consider is whether terminating an employee will result in public backlash that is more damaging than keeping the worker employed.

Uber terminated a driver who had tweeted a link to an article that claimed driving for Uber was not much safer than driving a taxi. The pubic backlashed negatively on social media against Uber when the employee was terminated. Uber ended up reinstating the driver.

Receiving sound legal advice is often the best way to become informed so you can make the right decision.

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

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Food Waste Law Tax Incentive for Restaurant Owners
by cjleclaire
Oct 20, 2016 | 9130 views | 0 0 comments | 487 487 recommendations | email to a friend | print | permalink

Author: Stephen D Hans & Associates

Food waste is a problem that restaurants and other businesses in the food industry have grappled with for years.

An article entitled “It’s Time to Rethink Restaurant Food Waste” points out that 84 percent of the food waste restaurants generate ends up in land fills. A corporation with a billion dollar revenue loses money on more than 3 million pounds of food that it pays for but does not use. A 15.7 percent food loss exists across the food industry.

Donating food to charities is a way to offset the loss and help the needy at the same time.

Congress Passed a Law that Increases Tax Incentives against Food Waste

In December of 2015, Congress passed the PATH ACT, which improved the tax incentives for food donation.

Food diet for pets

Here is how the law improved tax incentives:

  • Now not only C corporations but other corporations can also carry forward the deductions for five years, the same way C corporations do.
  • Farmers can claim 25 percent of the donated food’s fair market value as the food production cost and so can other “cash method” accounting taxpayers.
  • The allowable charitable contributions cap was raised from 10 percent to 15 percent.

This change for C corps is permanent and it also included 2015 donations made by corporations that were not C corps. The law creates an advantage for small and mid-sized restaurant owners, enabling them to donate food to charities and write off a percentage of the donation for up to 15 percent of their adjusted gross income.

Lucky Stores Inc, v. Commission of Internal Revenue is also case that affected charity donations and tax write offs. It was fundamental in establishing the fair market value (FMV) of unused food.

Stephen Hans & Associates is an employment litigation firm that assists restaurant owners and defends small and medium sized businesses in discrimination, labor law and other employment related matters.

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How Prevalent Is Sexual Harassment in the Workplace?
by cjleclaire
Oct 17, 2016 | 8871 views | 0 0 comments | 480 480 recommendations | email to a friend | print | permalink

As an employer, being knowledgeable about sexual harassment and the types of challenges you can potentially face is to your advantage. With proper insight, you can take preventative measures against having harassment arise in your work environment.

EEOC Study on Sexual Harassment

In 2015, the Equal Employment Opportunity Commission (EEOC) received an estimated 28,000 charges that alleged sexual harassment from employees who worked for private employers or state or local government employers.

Of all the harassment charges filed, the greatest percentage (45%) was based on sex.

Other discrimination harassment incidents broke down percentage-wise as follows:

  • Racial — 34%
  • Disability — 29%
  • Age — 15%
  • National Origen— 13%
  • Religious — 5%

Sexual Harassment Definition and Examples

The EEOC did not limit its investigation to workplace discrimination that would be legally actionable because it geared the study to understanding why the behavior was occurring and sought to come up with preventative strategies. The study considered unwelcome or offensive workplace conduct based on sex (sexual orientation, pregnancy and gender identity), race, color, national origin, religion, age, disability and/or genetic information. It also considered behavior that was detrimental to an employee’s work performance, professional advancement and/or mental health.

Examples included (but were not limited to): offensive jokes, slurs, name calling, undue attention, physical assaults or threats, unwelcome touching or contact, intimidation, ridicule or mockery, insults or put-downs, constant or unwelcome questions about an individual’s identity and offensive objects or pictures.

Study Findings

The EEOC Select Task Force discovered that women who experienced sexual harassment ranged from 25% to 85%. The main difference in responses was because some workers did not label the experience as “sexual harassment.” However, when behavior examples were used, the incident rate rose to 75%. Some examples described a sexual advance and other behaviors pointed to sexually crude terminology or displays (posting pornography for example). The two categories broke down into behavior that was a “come on” or a “put down.” With these types of examples, close to 60% of the women surveyed reported they had experienced harassment.

Based on these statistics, every business should be concerned about preventing sexual harassment.

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

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More About Women’s Rights in the News — the ERA
by cjleclaire
Sep 16, 2016 | 10572 views | 0 0 comments | 485 485 recommendations | email to a friend | print | permalink

As an employment defense litigation lawyer, I pay attention to civil rights issues, and lately women’s rights issues have gained attention from the media.

Actress Patricia Arquette has actively worked toward passing the Equal Rights Amendment (ERA), notable in her Oscar acceptance speech in 2015 and also in her recent testimony in June 2016 at a DNC Platform Committee hearing in Phoenix. There she urged the party to make ERA a priority. Even more recently, her letter to the editor appeared in The New York Times in support of the ERA.

Arquette is quoted as saying, “All of the things we want for women, including equal pay and effective legal recourse for gender-based violence, are in the ERA.” Arquette says, “… Polling shows the country is with us—we need Congress to catch up.”

In 2015, the ERA Coalition/Fund for Women’s Equality conducted an online poll to survey a nationally representative sample of 1,107 people. The poll showed that a large percentage of men and women, 94 percent, agree that the ERA should be added to the Constitution.

Facts about the Equal Rights Amendment

The ERA has had a long run at trying to get ratified as an amendment. It was first introduced in 1923, now almost 100 years ago. The amendment was passed by Congress in 1972: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

At first, a seven-year deadline existed for states to ratify the amendment so it could become a part of the Constitution. Then, the deadline was extended to 10 years. Thirty-five states ratified the amendment by 1982. However, the required ratification by 38 states to add the amendment to the Constitution never occurred. Since that time, even though the ERA is introduced to Congress every session, it has been 30 years since Congress has voted on it.

With enough political pressure, the amendment may finally be considered again, pass and get ratified. Its ratification would affect how companies do business.

Stephen Hans & Associates is an employment litigation firm that defends small and medium sized businesses in discrimination, labor law and other employment related matters.

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