|November 04, 2014||What Is the Professional Exception to Employment At-Will Termination?||no comments|
|October 16, 2014||What Employers Should Understand about Disability Discrimination||no comments|
|October 01, 2014||Importance of Educating Your Managers about Religious Discrimination Laws||no comments|
|September 16, 2014||How Can Employers Avoid Litigation with the EEOC?||no comments|
|September 11, 2014||Recent Supreme Court Ruling on Homecare Union Dues Requirement||no comments|
|September 03, 2014||An Intern's Right to Sue for Discrimination in New York||no comments|
|August 21, 2014||What Employers Should Know about Paternity Leaves||no comments|
|July 18, 2014||The Annual Pay Notice Requirement of the New York Wage Theft Prevention Act Could Be Close to Ending||no comments|
|June 11, 2014||How Much Can Allegations of Discrimination Cost You?||no comments|
|May 31, 2014||Wage and Hours Cases Setting Precedents for Tipped Employees||no comments|
Author: Stephen D. Hans
As described in our earlier blog article, there are exceptions to at-will employment terminations, making them unlawful, and termination based on discrimination is one of them. Another unlawful reason for termination under New York case law is the professional exception.
The New York State Bar published an article that explains the professional exception. In the case Wieder v. Skala, Wieder was a civil litigation attorney associated with the Skala law firm (defendant in the case). Wieder discovered that one of the firm’s partners made a mistake in a real estate transaction and covered it up. When he confronted the partner, the partner admitted he had “lied about the real estate transaction and later admitted in writing that he had committed several acts of legal malpractice and fraud and deceit.” Weidner reported the misconduct to the Appellate Division Disciplinary Committee as required by the Code of Professional Responsibility under the New York State Bar. The firm fired him for reporting the misconduct and Wieder sued for wrongful termination. The court ruled in favor of Wieder, finding that there was a professional exception to the at-will employment rule based on the New York Bar’s Code of Professional Responsibility. However, in cases that did not involve members of the New York Bar, the court did not find that a professional exception applied. It ruled that in these other types of cases, such instances are best left to the New York Legislature. The legislature has not passed any laws to clarify this point and subsequently, there is no legal recourse to being fired for reporting illegal activities in most employment situations.
If you are a business owner and have questions or unsure about whether an employee termination is legal, it is wise to consult with an experienced employment litigation lawyer.
Stephan Hans & Associates is a well-established employment litigation firm located in Long Island City, Queens and our employment litigation experience dates back to 1979.
Business owners typically look from an employer’s perspective and fire employees who cannot do the job. For the most part, this line of reasoning is valid and especially if you have at-will employment, where the employer has the right to terminate an employee for any reason whatsoever. However, there are legal exceptions to the “whatsoever” conditions of at-will employment, and discrimination underpins the majority of these exceptions.
Firing an employee or not hiring an employee because of disability is a form of discrimination. The Americans with Disabilities Act requires employers to provide:
Certainly, accommodating a worker who has a disability is harder than managing an employee who has no disability. Even so, this fact does not constitute undue hardship.
The Equal Employment Opportunity Commission (EEOC) is bringing a lawsuit against Harrison Poultry and this lawsuit serves as a recent example of disability discrimination. The EEOC determined that Harrison Poultry discriminated against an employee with a disability who was on an approved leave. A physician diagnosed the employee with emphysema. Instead of granting an accommodation to the employee who requested a 12 day extension to his vacation so he could comply with doctor’s orders, the company fired him.
On behalf of the worker, the EEOC first attempted to settle with Harrison Poultry, but when unable to reach a settlement, the EEOC filed a lawsuit. The lawsuit seeks back pay, compensatory and punitive damages and injunctive relief to prevent future disability discrimination. The EEOC alleges that granting the extension would not have resulted in undue hardship on the company. In fact, as it turned out, the employee’s position was not filled again until three months later.
Litigation often makes time consuming demands on business owners. Understanding discrimination laws and consulting with an experienced employment litigation attorney can help employers avoid costly lawsuits and the lost production time involved with them. Stephen Hans & Associates brings decades of experience to every legal matter involving employment disputes.
Restaurant owners must ensure their managers understand employment laws and put policies in place that protect their business against discrimination lawsuits. Providing a non-hostile work environment to employees is an essential guarantee of their civil rights.
Recently, the Equal Opportunity Employment Commission (EEOC) brought a lawsuit against Food Lion, based on religious discrimination. Food Lion is a supermarket chain, headquartered in North Carolina that employs an estimated 73,000 workers. The store cited in the claim was located in Winston Salem, N.C. The manager hired an employee, Victaurius L. Bailey to work as a meat cutter. Bailey was also a Jehovah's Witness minister and elder. Based on his faith, terms of his employment schedule allowed the employee to attend church services on Sundays and church related meetings on Thursday evenings. The store manager who hired him agreed not to schedule him for work on Sundays and Thursday evenings. When the company transferred Bailey to a different store in Winston Salem, the manager at the new store told him he did not see how it was possible to keep him if he could not work on Sundays. He was fired in 2011 due to his unavailability for Sunday work.
However, this decision to fire him violated Title VII of the Civil Rights Act, which requires employers to attempt to make reasonable accommodations based on an employee's religious beliefs unless it causes undue hardship for the company. The EEOC sued on behalf of the worker and sought back pay, along with past and future monetary losses, compensatory damages, punitive damages and injunctive relief.
An experienced employment law attorney can help you avoid terminations that violate civil rights laws and can potentially result in discrimination cases. Stephan Hans & Associates is a well-established employment litigation firm located in Long Island City, Queens and our employment litigation experience dates back to 1979.
The Equal Employment Opportunity Commission (EEOC) can bring litigation against employers on behalf of workers who file discrimination or harassment claims with the EEOC. Because the EEOC is selective about filing lawsuits it litigates only in a limited number of cases where the grievance is substantial and it deems a lawsuit is warranted. However, by working with an experienced employment lawyer, employers can receive effective legal guidance that often helps them settle and avoid litigation.
A recent case in point where the EEOC decided to litigate involved a restaurant in Fresno, California called Sal's Mexican restaurant. In the lawsuit, the EEOC claimed allegations of sexual harassment and gender discrimination, asserting that a male supervisor sexually harassed a hostess in 2009. She was a teenager at the time and the supervisor's harassment involved unwanted sexual advances, propositions, grabbing her body parts and attempting to kiss her. As a condition for employment the supervisor also made her give him hugs and back rubs. She complained to management repeatedly but management did not handle her complaints. The sexual harassment continued until her resignation from the hostess position in 2010.
Although the restaurant never admitted liability, the owner avoided litigation by entering into a two year conciliation agreement with the EEOC and former hostess. Actions taken in the conciliation included:
If you face discrimination or harassment allegations, consult with an experienced employment litigation attorney as soon as possible. For more than three decades, Stephan Hans & Associates has provided effective legal advice and representation to employers in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.
Many employers are interested to know about cases that affect the power of unions. For decades, unions have challenged employers through disputes or ongoing negotiations over employment terms and other issues.
This summer the U.S. Supreme Court’s ruling in a particular case may influence how unions operate nationwide, potentially limiting their ability to gather revenue from certain non-union members.
The U.S. Supreme Court ruled in the case Harris v. Quinn on June 30, by a narrow five to four decision, that the union could not deduct union fees from government checks that provided for homecare by personal assistants.
Factors in the Harris v. Quinn case involved the role of Medicaid recipients and the State of Illinois, which shared a joint role in determining the employment relationship of personal assistants (PAs). PAs are workers who provide homecare services for recipients in need of institutional care. The State compensates PAs, and customers propose a Service Plan that establishes guidelines for the PA’s duties. PAs were allowed under executive order to join a labor union that would engage in collective bargaining on their behalves under the Illinois Public Labor Relations Act. Service Employees International Union Healthcare Illinois & Indiana (SEIU-HII) became the exclusive union for rehabilitation program employees. The issue in the case was that the SEIU-HII required all workers who did not wish to join the union to pay a union fee. A group of Rehabilitation Program PA’s brought a class action lawsuit against the SEIU-HII, alleging that the required fee violated their First Amendment rights.
In many instances, the individuals providing homecare were relatives who had taken in a loved one to live with them so the loved one could avoid entering an institution.
If as an employer, you face issues with a union, it is wise to consult with an experienced employment litigation and labor law attorney. Since the founding of the firm in 1979, Stephen Hans & Associates has offered effective legal assistance to business owners facing labor law issues.
However, this fact changed on July 22, 2014, when the Governor of New York signed into law an amendment providing civil rights protections for interns. Under this amendment to NY civil rights law, the definition of an intern is an individual who performs work for an employer for the purpose of training and:
Interns have the right to freedom from discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status or domestic violence victim status.
For employers, an integral aspect of running a successful business involves staying apprised of legal and regulatory changes. An experienced employment litigation attorney can work with you to ensure your business policies and operating procedures comply with new employment laws.
At Stephen Hans & Associates, our attorneys offer business owners valuable legal assistance and representation in cases involving disputed employment or labor law issues.
Queens NY Employment Defense Attorney
The Family Medical Leaves Act (FMLA) grants the right to mothers and fathers to take up to 12 weeks off for maternity or paternity leaves so they can spend time with a newborn. As an employer, understanding your obligations under this law can help you avoid discrimination disputes.
Recently, the New York Post reported that a gay man sued his employer, ASMALLWORLD, for retaliating against him for taking a paternity leave. ASMALLWORLD is a private website, by invitation only, for socially prominent business owners and individuals. When Tonny Uy’s daughter was born in 2012, he requested a paternity leave. The employee handbook allowed 40 days of paid leave for a newborn baby. Prior to asking for the leave, the company considered him a model employee.
Initially, the company was unwilling to grant the leave until he referenced the company rule. Tonny stated that the supervisor’s attitude toward him changed after the leave. She became critical of his job performance. Months later he was told that because of budget cuts, his job was being reduced to part time, and the company terminated him. However, three months prior to his termination, the company issued a new handbook that did not provide for paid family medical leaves. Shortly after he left the company, he discovered that the company made his replacement a full-time employee.
Tonny sued based on gender discrimination. He claimed that female employees had no problem being granted maternity leaves, but his treatment arose out of the fact he was male and seeking a paternity leave to spend time with his newborn child.
The company now faces a lawsuit for what the Post reported as unspecified damages.
Employers are wise to consult with an experienced employment law defense attorney and find out whether their policies or actions could be in violation of employment or labor laws. Stephen Hans & Associates has assisted business owners with employment law issues for decades, dating back to the founding of our firm in 1979.
Author: Stephen D. Hans
After the Wage Theft Prevention Act went into effect, restaurant owners and other types of business owners became burdened with paperwork as they complied with annual requirements. They had to provide wage notices to all employees by February 1 of every year. This was a costly and cumbersome requirement.
Recently the New York legislature passed a bill that eliminates the annual reporting requirement. The bill is sitting on Governor Cuomo's desk awaiting his signature.
Business owners must still provide wage notices when hiring a new employees and earnings statements to employees. In fact, the penalties for failing to do so are stiffened by the new bill. Here are some aspects of the new bill you should be aware of:
We understand that you do not have time to keep up with new laws that require compliance and can potentially affect your business. As employment law attorneys, we keep our clients informed and help them stay compliant with legal changes as they occur. Stephen Hans & Associates has assisted business owners with employment law compliance issues for decades, dating back to the founding of our firm in 1979.
Author: Stephen D. Hans
Discrimination is a serious issue for employers. It can lead to disputes, lawsuits and even forced business sales. Forced business sale, substantial fines and the disgrace of being ousted from the National Basketball Association (NBA) are the challenges Clippers owner Donald Sterling faced over racial comments he made in a taped conversation with his girlfriend, V. Stiviano.
CNN reports this is not the first time discrimination has been a issue for Mr. Sterling. In an earlier lawsuit, Sterling paid millions to settle a federal case where African American and Hispanic claimants accused him of excluding them from his rental properties.
Initially, Sterling agreed to have his wife, Shelly Sterling, handle negotiations to sell the Clippers. Various bidders came forward, such as CEOs of Microsoft and Oracle, Oprah Winfrey and film producer, David Geffen. Recently Forbes magazine reported that after negotiations were in progress, Sterling recanted on the agreement to allow Shelly to negotiate the sale. Subsequently, his estranged wife Shelly had Sterling, who is 80 years old, declared mentally incapacitated, which allowed her to control the trust. Recently, she announced the sale of the team to former Microsoft CEO Steve Ballmer for $2 billion, which is quadruple the highest price ever paid for an NBA team.
It has been decades since Sterling bought the Clippers in 1981 for $13.5 million. The family will lose millions of dollars through capital gains taxes from the sale, which would have been avoided by having the team ownership pass through Sterling’s trust to his estate upon his death. A stepped up basis (current market value at time of death, not time of purchase) is used for estate valuations.
After the sale announcement, Mr. Sterling filed a lawsuit, suing the NBA for damages. However, Shelly Sterling informed parties that the Sterling trust will indemnify the NBA for lawsuits being brought by Sterling.
Needless to say, most business owners do not have millions at stake, but the importance of adhering to anti-discrimination policies does not lack emphasis through this example, even for billionaires.
Stephen Hans & Associates, an employment litigation law firm that has served business clients in the Long Island City and New York area since 1979.
Restaurant owners are subject to numerous regulations they must comply with and as various cases are litigated, rulings establish new precedents that can change how the industry does business. Maintaining a viable restaurant in today's world often requires due diligence from a legal perspective. The best way to stay on top of a changing legal landscape is to work closely with an employment law attorney who can keep you apprised.
Several recent cases are significant for the restaurant industry in how it manages tipped employees:
If you are a business owner with questions or concerns about wage and hours issues, contact Stephen Hans & Associates, an employment litigation law firm that has served clients in the Long Island City and New York area since 1979.