Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 92273 views | 0 0 comments | 91 91 recommendations | email to a friend | print | permalink

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Million Dollar Legal Mistakes by a Billion Dollar Company
by cjleclaire
Dec 10, 2015 | 12500 views | 0 0 comments | 423 423 recommendations | email to a friend | print | permalink

by Stephen D. Hans | Dec 8, 2015 | Employment Defense Attorney

Even billion dollar companies can allow legal mistakes to occur and have it cost them millions of dollars. Such appears to be the case when executives at Giorgio Armani allegedly discriminated against the company’s own general counsel, Fabio Silva.

The NY Daily News reported that Silva began working as general counsel for Armani in October of 2014. The lawsuit brought by Silva claims that Armani’s CFO Thomas Chan repeatedly told Silva he didn’t trust Mexicans during a time that they were working on a deal with a Mexican vendor. A co-worker let Chan know that Silva was Mexican. After that, Silva says that Chan subjected him to “heightened scrutiny and unfounded criticism.” Silva filed a complaint with the company’s COO, Giorgio Fomari. However, Fomari took no actions to correct the discrimination except to tell Silva he erred by saying something in writing. When Silva asked for a raise in April based on an outstanding performance review, he says Fomari wouldn’t give him a raise because of the discrimination complaint. Of course, this is retaliation.

Later on, Silva told his bosses that he had been diagnosed with colon cancer, but explained it was operable, and minutes afterward, the company’s HR rep fired him. She said she thought it would be a good time to tell him that the company was terminating him. The reason given was that they didn’t feel they could trust him. Silva is a highly respected and experienced attorney in the fashion industry. He filed a $75 million lawsuit against Armani, which is being heard by the Manhattan Supreme Court.

Situations like this can be easily avoided when companies make it standard policy to train their employees (including top executives) in equal opportunity employment practices.

Our attorneys at Stephen Hans & Associates work with businesses to protect their rights and draw on more than two decades of legal experience. We help companies deal with employment issues and find resolutions to avoid full-blown lawsuits.
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Restaurant Industry: Several Restaurants Refusing to Serve Cops
by cjleclaire
Dec 01, 2015 | 11911 views | 1 1 comments | 365 365 recommendations | email to a friend | print | permalink

When does a restaurant have the right to refuse service?

Recently, several restaurants refused to serve police officers. According to a New York Times article a Dunkin’ Donuts worker in West Hartford, Connecticut announced to a police officer standing in the back of the line that they didn’t serve cops there. It turned out to be a poor joke, and the manager and employee ran after the officer to apologize and offer him a free meal. However, an Arby’s manager in Pembroke Pines, Florida was fired after telling a police officer that an employee refused to serve him (also a poor joke). The article goes on to give other similar instances along with survey data that shows public views of the police are the lowest in 22 years. This is a result of the Black Lives Matter movement that sprang out of instances of police brutality.

From the viewpoint of discrimination, this is an interesting development. The number of protected classes have grown since Title VII of the Civil Rights Act was passed in 1964. We now have laws that prevent discrimination based on gender, age, disability, sexual orientation, military and other classifications.

The restaurant industry’s right to refuse service cannot be based on the fact that an individual belongs to any of these protected classes. Otherwise the owner may have discrimination lawsuits to deal with. The purpose of this right is for valid reasons, such as making individuals leave who are causing trouble, being disruptive, are improperly dressed (black tie dinners, no shoes or shirts, etc.) or who are not following the restaurant’s rules.

As an employer, if you have questions about your rights to refuse service, Stephen Hans & Associates will be glad to answer your questions. Our firm represents small business owners in discrimination, employment issues and labor disputes in regulatory actions.

Queens & New York City Employment Defense Attorney

 
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Are Your Wages Equal for Men and Women?
by cjleclaire
Nov 19, 2015 | 8395 views | 0 0 comments | 235 235 recommendations | email to a friend | print | permalink

Queens & New York City Employment Defense Attorneys

Situations arise where an employee leaves and you must once hire or promote someone to fill their position. Based on skills, experience and the job description, employers offer a salary or wage for work being done as part of a position’s duties. As an employer, it is worth your time to review whether you provide equal pay to men and women who perform the same or comparable job functions.

Recently, the Equal Employment Opportunity Commission (EEOC) brought a lawsuit against an oil company for sex based discrimination and paying a female employee a lower salary than her male predecessor.

The details of the case are that SOCI Petroleum/Santmyer Oil Company, Inc. (SOCI) hired Lori Bowerstock to work in human resources in 2006 in Wooster, Ohio. When the current human resources manager’s employment ended in 2009, Bowerstock assumed his function and began performing his functions. The EEOC’s complaint alleges that the company allowed derogatory, sex-based comments against women in general and devalued their work performances and capabilities. SOCI paid Bowerstock less compensation than her male predecessor for doing the same work.

In this case, the EEOC alleges the company violated the Equal Pay Act of 1964 and Title VII of the Civil Rights Act The EEOC first sought to reach a pre-litigation settlement through its administrative conciliation process. After failing to reach a settlement, the EEOC is now pursuing permanent injunctive relief to prevent SOCI from discriminating through unequal pay to women, to enforce equal employment opportunities for women, and to obtain lost wages, compensatory and punitive damages.

Working closely with an experienced employment litigation lawyer can help you put sound policies in place that avoid discrimination and unequal pay issues. Our attorneys at Stephen Hans & Associates have successfully defended employers’ rights in litigation and settlement negotiations for more than two decades.

 

 
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What You Should Know About Weighing Age and Ability When Hiring
by cjleclaire
Nov 04, 2015 | 8215 views | 0 0 comments | 184 184 recommendations | email to a friend | print | permalink

As an employer or company owner, do you ask questions like this when interviewing a job candidate?

  • Are you planning on retiring soon?
  • How many years do you plan on working in this field?

Companies are conscious of the expenses involved with high job turnover rates. Hiring an employee who would potentially stay with the company for many years is to the company’s advantage.

However recently, the Equal Employment Opportunity Commission filed a lawsuit against a state agency for failing to hire an attorney for a vacant appeals officer position. The applicant, Joseph Bednanik was over the of 40, graduated law school with honors and had around 30 years of legal experience. He had worked 17 years with the Pennsylvania Human Relations Commission when interviewing for the appeals officer position with the Pennsylvania Office of Public Records. Bednanik had extensive experience in a related field and a good reference for the position. During the second interview, the executive director expressed concerns that Joseph may have a short tenure and retire soon. The office hired a far less experienced applicant who was 15 years younger and did not hire Bednanik because of age considerations.

The EEOC sued based on age discrimination. The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination in hiring based on the age of applicants who are 40 years or older.

While hiring someone with potential longevity in a position seems like good business sense, this is not a good idea when potential age discrimination is an issue. Business owners are wise to consult with an experienced employment litigation lawyer about human resources policies that avoid discrimination issues. For more than two decades, our attorneys at Stephen Hans Associates have successfully defended employers’ rights in litigation and settlement negotiations.

 





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New Non-Tipping Policy – Legal Considerations
by cjleclaire
Oct 27, 2015 | 8413 views | 0 0 comments | 230 230 recommendations | email to a friend | print | permalink
by Stephen D. Hans 

Danny Meyer, the owner of Union Square Hospitality Group in New York City, has 12 restaurants across Manhattan and a total of 1,800 employees. According to ABC News, he will soon start to prohibit tipping and all service employees will receive wages instead, beginning in November with his restaurant, The Modern. He plans to phase all of his restaurants into a no-tipping system by the end of the year and will raise menu prices to compensate for the change.

In a recent article, The Washington Post, mentions several restaurants that no longer permit tipping, including Dirt Candy in New York’s East Village and Riki Restaurant near Grand Central Station. The owner-chef of Dirt Candy adds a 20 percent administrative fee to the bill. She decided not to raise menu prices and calls it an “administrative fee” for legal reasons.

The tipping issue has two important considerations. The first is the business issue – what, if any, effect will such a decision have upon the business? Customers may react unfavorably because a specific, long-standing right of tipping their servers has been taken away by management.

New York restaurants that wish to adopt the no tipping policy and raise prices will be required to pay service staff the minimum wage of $8.75 ($9.00 at end of year) per hour and $13.13 ($13.50 at end of year) per hour for all hours over forty per week. The tip credit regulations which are set forth in the NYS Hospitality Industry Wage Order would not apply to a restaurant that eliminates tipping.

But the real question is how will the restaurants handle the expected tip pool with the staff? Servers and bussers have earned far more than $8.75 per hour, when including their tips. In some restaurants, they can earn $500 to $1,000 per week from tips, depending on the reputation of the restaurant. What will owners like Meyer do with the staff given this amount of tips that was earned? Obviously, servers will not settle for minimum wage alone as their compensation.

If restaurants attempt to pay “salary” to service workers, they run the risk of additional lawsuits or government investigations for the misclassification of such employees. Servers are not overtime exempt employees and, regardless of the authority the owner may want to grant such an employee, they must be paid hourly since they will always remain employees without legal management authority as defined by the law.

In the event you are unclear on either how to pay or what records must be kept, you should feel free to call our firm, Stephen D. Hans & Associates, P.C. at (718) 275-6700 to discuss this issue and general compliance with all federal and state labor laws on payroll and wages.

 
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New York City & Queens Employment Defense Firm
by cjleclaire
Oct 13, 2015 | 8936 views | 0 0 comments | 182 182 recommendations | email to a friend | print | permalink

What You Should Know About Weighing Age and Ability When Hiring

As an employer or company owner, do you ask questions like this when interviewing a job candidate?

  • Are you planning on retiring soon?
  • How many years do you plan on working in this field?

Companies are conscious of the expenses involved with high job turnover rates. Hiring an employee who would potentially stay with the company for many years is to the company’s advantage.

However recently, the Equal Employment Opportunity Commission filed a lawsuit against a state agency for failing to hire an attorney for a vacant appeals officer position. The applicant, Joseph Bednanik was over the of 40, graduated law school with honors and had around 30 years of legal experience. He had worked 17 years with the Pennsylvania Human Relations Commission when interviewing for the appeals officer position with the Pennsylvania Office of Public Records. Bednanik had extensive experience in a related field and a good reference for the position. During the second interview, the executive director expressed concerns that Joseph may have a short tenure and retire soon. The office hired a far less experienced applicant who was 15 years younger and did not hire Bednanik because of age considerations.

The EEOC sued based on age discrimination. The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination in hiring based on the age of applicants who are 40 years or older.

While hiring someone with potential longevity in a position seems like good business sense, this is not a good idea when potential age discrimination is an issue. Business owners are wise to consult with an experienced employment litigation lawyer about human resources policies that avoid discrimination issues. For more than two decades, our attorneys at Stephen Hans & Associates have successfully defended employers’ rights in litigation and settlement negotiations.

New York City  & Queens Employment Defense Firm


 
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Restaurant Industry: Keep It Free from Union Organizing
by cjleclaire
Sep 30, 2015 | 9831 views | 0 0 comments | 220 220 recommendations | email to a friend | print | permalink
by Stephen D. Hans | Sep 30, 2015 | Employment Defense Attorney, NLRB

Many people do not realize that 90 percent of the restaurants in the United States belong to independent operators or franchisees.

Traditionally, business owners and union organizers have stood on opposite sides of the spectrum in relation to labor issues. The restaurant industry has for the most part remained free from big business constraints through small independent owners and the franchise system, which have also kept franchises free from union organizing.

Since 1984, the franchise system drew clear distinctions between franchisee owners and franchises. For decades, the franchise model gave small business owners the advantage of resources to start new businesses while at the same time having the freedom to run the businesses themselves. The franchise expands the reach of the brand, while the franchisee manages daily business operations and personnel.

Until recently, the National Labor Relations Board (NLRB) followed the tradition of viewing franchises and franchisees as separate in their legal responsibilities. While a disgruntled employee could sue the restaurant owner (franchisee), the franchise would not automatically be liable as well. In December 2014, the NLRB allowed several complaints, one against McDonald’s USA LLC and McDonald’s franchisees to proceed as a joint action, alleging unfair labor practice charges. However, McDonald’s USA LLC does not control labor relations at the franchised stores.

The NRA opposes this change taken by the NLRB and is reaching out to Congress for legislation to curb the NLRB’s authority. The potential harm to business franchisees is as follows:

  • Organized labor’s ability to unionize the restaurant industry by re-labeling franchise stores as big business
  • Discouragement of small business owners to launch new businesses through franchises
  • Turning daily business operations (hiring, firing, shift schedules) over to the franchiso
  • Economic repercussions of fewer jobs created, less capitol re-invested into the economy and fewer taxes paid
  • Loss of small businesses and less contributions to the economy by independent entrepreneurs

Stephen Hans & Associates represents small business owners in labor disputes in regulatory actions, lawsuits and negotiated settlements. If you face a labor dispute, find out how we can help.

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NY Employment Defense Attorney defends Employers’ Rights
by cjleclaire
Sep 25, 2015 | 10137 views | 0 0 comments | 214 214 recommendations | email to a friend | print | permalink
by Stephen D. Hans | Sep 25, 2015 |

Per Se is a popular, exclusive restaurant located at the Time Warner Center at Columbus Circle. Known for its Nova Scotia lobster, foie gras, caviar and truffles, Per Se caters to guests who pay for luxurious dining at a prix fixe of $310 per dinner. In addition, for private dining the restaurant requires a 20 percent service fee.

In 2015, The New York Times reported that the restaurant became subject to a New York State Attorney General’s Office investigation. The investigation revealed that the restaurant had misrepresented its private dining fee as gratuities for servers. However, servers did not receive tips from the fee.

Through a settlement reached with the Attorney General’s Office, Per Se agreed to pay $500,000 to the employees affected by the restaurant’s violations of state labor law. Another aspect of the agreement was that the restaurant would train the staff members responsible for dining events so they understood the labor laws and they would make it easy for employees to lodge labor law complaints.

The agreement also required that the restaurant designate a compliance officer to monitor labor practice compliance. In essence, the Attorney General’s Office decided the restaurant had misled customers who thought they were tipping the staff, and state law prevents this type of misrepresentation.

This is not the first high profile Manhattan restaurant to agree to similar settlements. Restaurant owners of Del Posto agreed to settlements in 2012 where they paid $1.15 million to current and former employees who complained about tipping and overtime violations. They also made a separate payment of $5.25 million in another agreement and distributed it to 1,100 workers at several of the owners’ restaurants.

The error made by Per Se was in calling the fee a “service charge,” which translated to “tip” in the minds of restaurant goers. Had Per Se used different language, it could have avoided the issue. In addition, the restaurant staff told some customers the 20 percent fee was a gratuity charge. Had they simply used acceptable language, the charge would have been legal. The restaurant’s spokes person pointed out that hourly servers’ wages were on the average between $16 and $28 and that a portion of the 20 percent private dining fee went toward workers’ wages. The average servers’ salary at Per Se is $116,000 per year, which includes overtime and gratuities.

It is vital to engage an experienced employment litigation lawyer in the legal aspects of your business. You can often avoid legal disputes, lawsuits and regulatory issues. For more than two decades, Stephen Hans & Associates has successfully defended employers’ rights in litigation and settlement negotiations.

NY Employment Defense Attorney defends Employers’ Rights

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What You Need to Understand About Criminal Background Checks When Hiring Employees
by cjleclaire
Sep 15, 2015 | 12641 views | 0 0 comments | 814 814 recommendations | email to a friend | print | permalink

What You Need to Understand About Criminal Background Checks When Hiring Employees

NYC  & Queens Employment Defense Attorney

Recently, based on alleged race discrimination resulting from criminal background checks, BMW settled with the EEOC through an agreement to pay $1.6 million and provide job opportunities. All logistics employees that reapplied to continue working at BMV were given background checks. BMW policies excluded anyone convicted of a misdemeanor or felony regardless of how long ago and did not re-hire these employees. As a result, an estimated 100 workers, including those working there for several years were not re-hired and 80 percent were African American.

This violated EEOC’s 2012 guidelines  on employers’ use of criminal background checks in hiring. Under Title VII of the Civil Rights Act of 1964, the guideline prohibits employers from using practices or policies that screen individuals based on criminal history information if it significantly puts Title VII protected individuals such as African Americans or Hispanics at a disadvantage or if such screening does not help the employer accurately decide whether the person would be responsible, reliable or a safe employee.

In the situation with BMW, some employees had clearly proved they were responsible, reliable and safe but were let go based on an arbitrary company rule. BMW changed its policies so they were in line with Title VII and cooperated with the EEOC in reaching a fair settlement outside of court.

When putting screening policies and other hiring protocols in place, it is wise to work closely with an experienced employment litigation attorney. Many companies underestimate the value of legal guidance until disputes arise that lead to lawsuits. Stephen Hans & Associates offers you decades of legal experience in employment law and will vigorously protect your rights as an employer.

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New York Employment Discrimination Defense Attorney
by cjleclaire
Aug 27, 2015 | 16934 views | 0 0 comments | 498 498 recommendations | email to a friend | print | permalink
Author: Stephen D.Hans

What Can Happen if You Ignore a Discrimination Claim?

No one likes dealing with a dispute, and we often wish disputes would just go away. However, ignoring a discrimination claim can land employers into trouble and result in undesired legal consequences.

This is what occurred in a Florida discrimination case brought against a Clearwater adult entertainment club called Bliss Cabaret. The Equal Employment Opportunity Commission (EEOC) sued the club and its successor corporation Executive Gentleman’s Club for firing African American Quatavia Harden who was employed as a bartender based on her race. The manager, Patrick Franke who hired Harden objected and refused to participate in the discrimination, and consequently, he was terminated. Later in the lawsuit, the EEOC added the parent company Southeast Showclubs, LLC as a party to the lawsuit. Race discrimination and retaliation are violations of Title VII of the Civil Rights Act.

Because the defendants ignored the EEOC’s allegations and failed to respond, the Court ruled the defendants were guilty of discriminatory conduct and awarded $365,000 in relief to the EEOC, which included punitive damages, back pay, interest, compensatory damages and tax penalty offsets for Franke and Harden. The Court also granted injunctive relief that demanded the companies cease their discriminatory practices, that they incorporate non-retaliation and non-discrimination policies and report applicant flow and hiring data to the EEOC for compliance monitoring.

The best legal defense is preventative and helps you put measures in place so you do not become involved in discrimination issues. Unfortunately, companies often do not realize the importance of legal guidance until they face a lawsuit. At the first sign of a discrimination dispute, it is wise to seek legal counsel. Stephen Hans & Associates puts decades of legal experience to work on your behalf and works diligently to protect your rights as an employer.

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