Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 26485 views | 0 0 comments | 47 47 recommendations | email to a friend | print | permalink

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Know and Follow the Regulations for Tip Pools
by cjleclaire
Feb 04, 2015 | 6780 views | 0 0 comments | 274 274 recommendations | email to a friend | print | permalink
Author: Stephen D. Hans

In the restaurant business and hospitality industry in general, employees who provide services, such as servers, hosting staff, bartenders and bus persons typically receive tips from customers. Under the Fair Labor Standards Act (FSLA),  which is a federal law, tipped employees are workers who “customarily and regularly receive more than $30 per month in tips.”

A tip pool is a common fund used by an employer where all tipped service employees pool their tips together, and the employer then divides the tips fairly among the employees.

Based on the NY Hospitality Industry Wage Order, employers can require directly tipped employees to participate in a tip pool. This law also establishes tip credits for employers using tip pools. It also allows tipped employees to take legal action against employers who violate tip pool regulations.

As an employer, here are some violations to avoid:

• Including employees in tips pools who do not belong based on their duties, such as cooks, dishwashers and other kitchen workers

• Failing to pay tipped employees overtime when their schedules exceed 40 hours or their work day exceeds 10 hours

• Including managers and employers in tip pools

• Failing to keep daily records that show tips collected by employees for each shift, occupations eligible for tip pooling, shares each occupation receives and the amount each employee received in tips by date

Participants have the right to view the tip polling records.

Employers are at risk for collective or class action lawsuits when employees believe restaurant owners have violated tipping pool regulations. By working closely with a New York employment defense lawyer, you can ensure you comply with regulations and protect your restaurant and your bottom line.

Our employment defense attorneys at Stephen Hans & Associates bring decades of legal experience to the table and help restaurant owners handle all types of employment related disputes.

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A Different Slant on Class-Based Hiring Discrimination
by cjleclaire
Jan 29, 2015 | 7701 views | 0 0 comments | 315 315 recommendations | email to a friend | print | permalink
Author: Stephen D. Hans

Most employers are familiar with the pitfalls of discriminating against applicants in protected classes under Civil Rights laws. For the most part, African Americans, Hispanics and other minority groups experience the brunt of this type of discrimination. Some companies bend over backwards to accommodate Hispanic and Spanish-speaking job candidates so they can show diversity in hiring. However, recently a case brought by the Equal Employment Opportunity Commission (EEOC) had a different twist.

The EEOC charged Lawler Foods, Inc. and Lawler Foods, Ltd. in Houston, Texas with discrimination against African-American and non-Hispanic applicants.

Since 2007, Lawler staff who were hiring for the company had been telling non-Hispanic applicants that they could not hire them because they were not Hispanic or did not speak Spanish. Statistical and anecdotal evidence showed the following about Lawler Foods’ treatment of non-Hispanic applicants:

• Rude behavior towards them

• Making them wait endlessly for interviews while at the same time interviewing Hispanic applicants

• Non-Hispanic applicants typically having better qualifications of more education and more relevant work experience than Hispanic applicants, but not being hired

• Reliance on word-of-mouth hiring

• Advertising that indicated a preference for Spanish-speaking applicants

When the EEOC could not reach a settlement with Lawler Foods, it pursued a lawsuit, alleging that the Lawler companies were in violation of Title VII of the Civil Rights Act. Company employers had excluded people on the basis of national origin or race, and this was, in effect, class-based recruitment.

Employers who face unusual employment situations should consult with an employment defense attorney to ensure their policies and hiring practices are in compliance with discrimination laws. Our attorneys at Stephen Hans & Associates have extensive experience as employment defense lawyers and can help you deal with employment related disputes and litigation.

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← How Do 2015 Minimum Wage Increases Affect NY Restaurants? Are Employers Free from Liability When Using Staffing Agencies to Terminate Employees?
by cjleclaire
Jan 23, 2015 | 8903 views | 0 0 comments | 232 232 recommendations | email to a friend | print | permalink
Companies often find that staffing agencies are valuable resources for helping them fill temporary or permanent positions and for handling human resources issues.

However, recently, an outside staffing agency was involved in a disability discrimination lawsuit the Equal Employment Opportunity Commission (EEOC) brought against Sony Electronics.

Both Sony Electronics and Staffmark Investment LLC ended up settling the lawsuit, which addressed alleged discrimination against a temporary employee who had a prosthetic leg. Staffmark sent the employee to inspect Sony televisions on a temporary basis. While working her second day, a Staffmark employee approached the woman and removed her from the workplace. The explanation given was that the company had concerns she would get bumped or knocked down. The EEOC investigation revealed that Sony’s management had prompted the Staffmark employee to remove the worker. Consequently, the judge considered Sony to be complicit in the violation of the Americans with Disabilities Act (ADA).

It was an expensive error for both companies, resulting in payments from Staffmark of $100,000 and from Sony of $86,000 to the employee.

In addition to the monetary penalty, the federal judge ordered the following:

• Sony must report all employee complaints of disability discrimination to the EEOC for the next two years

• Sony must train certain management and supervisory employees in employment discrimination laws, including the ADA

• Sony must not require that the employee keep the facts of the case confidential, must not waive her rights to file discrimination with a government agency or prevent her from applying or working with Sony or any of Sony’s clients

If you face discrimination issues as an employer, Stephen Hans & Associates can provide you with effective legal representation. For more than 20 years, Stephen Hans & Associates, has successfully defended employers and helped them resolve employment issues that have resulted in litigation.
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How Do 2015 Minimum Wage Increases Affect NY Restaurants?
by cjleclaire
Jan 15, 2015 | 8985 views | 0 0 comments | 259 259 recommendations | email to a friend | print | permalink
Author: Stephen D. Hans

Minimum wage increases took effect on December 31, 2014, raising the New York minimum wage from $8.00 to $8.75 per hour for employees who work based on hourly wages. By the way, another minimum wage increase also occurs approximately a year from now, on December 31, 2015, raising hourly wages to $9.00 per hour.

According to the New York Department of Labor , most employees working for restaurants or hotels in New York State are covered by the wage increase. However, the hourly wage increase does not apply to tipped employees, such as servers, persons busing tables or hotel bellhops. Even so, their overtime rates are affected and must increase when they work over 40 hours per week or work days with spreads over 10 hours for that day.

The maximum tip credits employers can claim also increased by the same amount that minimum wages increased, which would be $.75 beginning 2015 and $.025 beginning 2016. Tip credits are $3.75 in 2015 and $4.00 in 2016. Non-overtime hourly wages along with credits for meals and lodging did not increase.

Pay increases apply for tipped employee’s call-in pay and uniform maintenance pay. In addition, employers must pay the difference for any tipped employee’s hourly pay combined with tips that does not add up to the minimum wage figure.

It is important to comply with changes in wage and hour laws. Business owners who fail to do so often find themselves embroiled in disputes and subject to lawsuits. Our employment defense attorneys at Stephen Hans & Associates  offer employers decades of legal experience from protecting our clients’ rights in wage and hour disputes

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How Do 2015 Minimum Wage Increases Affect NY Restaurants?
by cjleclaire
Jan 08, 2015 | 8503 views | 0 0 comments | 178 178 recommendations | email to a friend | print | permalink

Author: Stephen Hans

Minimum wage increases took effect on December 31, 2014, raising the New York minimum wage from $8.00 to $8.75 per hour for employees who work based on hourly wages. By the way, another minimum wage increase also occurs approximately a year from now, on December 31, 2015, raising hourly wages to $9.00 per hour.

According to the New York Department of Labor , most employees working for restaurants or hotels in New York State are covered by the wage increase. However, the hourly wage increase does not apply to tipped employees, such as servers, persons busing tables or hotel bellhops. Even so, their overtime rates are affected and must increase when they work over 40 hours per week or work days with spreads over 10 hours for that day.

The maximum tip credits employers can claim also increased by the same amount that minimum wages increased, which would be $.75 beginning 2015 and $.025 beginning 2016. Tip credits are $3.75 in 2015 and $4.00 in 2016. Non-overtime hourly wages along with credits for meals and lodging did not increase.

Pay increases apply for tipped employee’s call-in pay and uniform maintenance pay. In addition, employers must pay the difference for any tipped employee’s hourly pay combined with tips that does not add up to the minimum wage figure.

It is important to comply with changes in wage and hour laws. Business owners who fail to do so often find themselves embroiled in disputes and subject to lawsuits. Our employment defense attorneys at Stephen Hans & Associates offer employers decades of legal experience from protecting our clients’ rights in wage and hour disputes.

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NYC Employment Law — Pre-tax Transit Benefits
by cjleclaire
Dec 17, 2014 | 8765 views | 0 0 comments | 183 183 recommendations | email to a friend | print | permalink

As employers, sometimes it is difficult to keep with the employment law changes, which is why you should consult periodically with an employment defense lawyer and stay apprised of new laws.

At the end of October 2014, New York City Mayor Bill de Blasio signed the Affordable Transit Act  into law. Under the new law, NYC companies with 20 or more full-time employees must offer their employees pre-tax transit benefits. The new act follows the limits already established by the IRS , which allows a $130 pre-tax benefit that can be deducted from salaries for mass transit expenses. Advantages the new law offer for employers and employees are:

  • Employees can opt into the new program and save over $400 a year on Metro Card expenses
  • Employers save more than $100 a year per employee in tax liability
  • An estimated 450,000 New Yorkers not currently offered pre-tax transit benefits now have access to them

The new law goes into effect on January 1, 2016. Employers violating the law are subject to civil penalties but have 90 days to correct a violation before having the penalty imposed. Also businesses have a grace period until July 1, 2016 to adjust to the law and are not subject to penalties occurring prior to that date.

The intent of the new law is to make mass transit more affordable for New Yorkers, and it is also an initiative aligned with deal with climate changes.

Stay on top of legal changes by consulting with skilled lawyers. Our employment defense attorneys at Stephen Hans & Associates offer employers decades of legal experience that helps protect their rights along with their bottom lines.

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Bunny Jackson
|
December 23, 2014
An instructive post. People to really know who they want to reach and why or else, they'll have no way to know what they're trying to achieve. People need to hear this and have it drilled in their brains..

Thanks for sharing this great article.

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Wage and Hour Regulation Pitfalls
by cjleclaire
Dec 10, 2014 | 10443 views | 0 0 comments | 227 227 recommendations | email to a friend | print | permalink

Business owners can get themselves into trouble when not understanding wage and hours laws. What appears to be a bright idea that cuts corners and saves money is sometimes a violation that leads to costly consequences.

The Fair Labor Standards Act (FLSA) establishes minimum wages and standards for overtime pay, and federal enforcement falls under the United States Department of Labor's Wage and Hour Division.

Some common wage and hour pitfalls that a NY employment litigation lawyer can help you avoid include:

  • Voluntary work hours. Even though employees work off the clock voluntarily past their scheduled work hours, they must receive overtime compensation for that work done. Documenting all employee work is necessary to protect your rights as an employer, and any work exceeding 40 hours, even though not at the employer's request, must be paid.
  • Travel time. When your employees travel as part of the job, calculating work time and overtime pay can be challenging. By consulting with an experienced employment litigation lawyer, you can receive legal advice about travel policies that comply with wage and hours law.
  • Employee misclassification. Business owners must classify employees based on their job duties and hourly wages or salaries. Salaried employees generally do not receive overtime pay, whereas hourly employees do. The types of duties the employees perform are the basis for classifying an employee and in particular whether the duties include management. Classifying an hourly employee as a manager when the employee has no management responsibilities is misclassification, which can be subject to disputes and claims or lawsuits. Our attorneys can help you ensure your employees' classifications fall within the letter of the law.

Stephan Hans & Associates can help you comply with wage and hour laws for your business in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

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Are You Staying on Top of Regulations that Affect Your Restaurant?
by cjleclaire
Dec 04, 2014 | 9396 views | 0 0 comments | 761 761 recommendations | email to a friend | print | permalink

A recent change in regulations predicted to arrive soon is that the Food and Drug Administration (FDA) will release a national menu labeling standard for chain restaurants. The standard will address calorie and nutritional information required on menus and at point of sale.

The National Restaurant Association (NRA) explains the relevance of the new standard for restaurant owners. The new menu label standard is covered by the 2010 health care law. This federal law takes priority over state and local rules and limits a restaurant's legal liability. The new standard will only apply to chain restaurants operating in 20 or more locations under the same brand name. Restaurants the new standards apply to will have a six month grace period once the standard is officially released before having to comply.

The NRA has worked closely in collaboration with regulators to protect restaurant owners who are making good-faith efforts to comply so they are not subjected to penalties for human errors or reasonable fluctuations in ingredients or service sizes. Also, restaurants are allowed the freedom to present easily understood nutritional information to consumers in their own way.

Through a recent study conducted by Johns Hopkins University's Department of Health Policy, the NRA indicates restaurant chains have reduced calories in many of their menu items, providing consumers with healthier choices. The study reviewed more than 60 large chain restaurants. Statistics showed a 12 percent drop in calories in 2013 menu items over 2012 menu items. These efforts on the part of restaurants show a willingness to comply with regulations that promote health and wellness, which is also the purpose in the upcoming menu standards for consumer nutritional information.

Do you have questions about meeting restaurant regulatory rules? Stephan Hans & Associates advises businesses and helps them implement regulations. The firm also represents employers in disputes with regulatory agencies. We are a well-established employment litigation firm located in Long Island City, Queens and our employment litigation experience dates back to 1979.
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What about Wellness Programs as Part of Health Coverage?
by cjleclaire
Nov 28, 2014 | 10060 views | 0 0 comments | 786 786 recommendations | email to a friend | print | permalink

Today many companies offering health insurance also provide wellness programs, which are a preventative medicine approach to health. Today, 94 percent of employers with more than 400 employees and 63 percent of smaller companies offer some type of wellness program, according to the Kaiser Foundation.

In a recent case brought by the Equal Employment Opportunity Commission (EEOC) against Flambeau, Inc., a Wisconsin based company, the court found that the company was in violation of the Americans with Disabilities Act (ADA). Flambeau required employees to submit to biometric testing and a health assessment as part of its wellness program. Failure to do so resulted in canceling the employee’s medical insurance and unspecified disciplinary action.

The court had no disagreement with voluntary wellness programs, but the program Flambeau offered was anything but voluntary since it could result in penalizing an employee who refused testing and assessment by making that employee pay 100 percent for health coverage premium costs. Also, Flambeau’s biometric testing and assessment of disabilities were not job related and they violated the ADA, which prohibits making disability-related inquiries.

If you already have an existing wellness program or are considering incorporating one, it is wise to discuss the matter with your lawyer beforehand to ensure compliance with federal and state laws.

Stephan Hans & Associates has provided employers with effective legal advice and representation for more than thirty years. If your business is in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester, we are glad to provide you with trustworthy legal assistance.

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What Is the Professional Exception to Employment At-Will Termination?
by cjleclaire
Nov 04, 2014 | 10948 views | 0 0 comments | 848 848 recommendations | email to a friend | print | permalink

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.

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