Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 11638 views | 0 0 comments | 31 31 recommendations | email to a friend | print | permalink

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Obama NLRB Appointments Overturned by 3rd Appeals Court
by cjleclaire
Aug 29, 2013 | 6992 views | 0 0 comments | 46 46 recommendations | email to a friend | print | permalink

On July 17th the U.S. Court of Appeals in Richmond, VA became the third court to rule  that President Obama’s recess appointments of National Labor Review Board members last year was unlawful.

In the majority opinion, Circuit Judge Clyde Hamilton wrote: “We conclude that the president’s three Jan. 4, 2012, appointments to the board are constitutionally infirm, because the appointments were not made during ‘the recess of the Senate.’”

In 2012, appeals courts both in Washington and Philadelphia had also ruled that the appointments violated the Constitution’s Recess Appointments Clause, which threw hundreds of previous NLRB decisions into question after the rulings. 

Employers win because of the court’s ruling

The latest ruling by the Virginia court canceled NLRB decisions against two employers who contended that the board lacked a legally appointed quorum.

The Richmond case is National Labor Relations Board v. Enterprise Leasing Co.-Southeast LLC, 12-01514, U.S. Court of Appeals for the Fourth Circuit (Richmond).  The Washington case is Noel Canning v. National Labor Relations Board, 12-01115, 12-01153, U.S. Court of Appeals for the District of Columbia (Washington).

Contact an Employment Law Attorney

If the trend continues in the courts and ultimately in the Supreme Court, where the Obama Administration intends to be heard on the matter, many employers could benefit by having NLRB rulings overturned.  Employers who have pending cases before the board or anticipate other dealings before the NLRB are advised to discuss the matter with an experienced employment law attorney.  Stephen D. Hans & Associates, P.C., have advocated for New York employer for 34 years.  To discuss your NLRB or other employment law matter, contact our office  or call 718-275-6700 to schedule an appointment.

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How the Supreme Court’s Decision on DOMA Affects Employers
by cjleclaire
Aug 27, 2013 | 5425 views | 0 0 comments | 60 60 recommendations | email to a friend | print | permalink

On June 26th the Supreme Court ruled  that DOMA's exclusion of state-sanctioned, same-sex marriages from the federal definition of marriage is unconstitutional in United States v. Windsor.  This decision has now changed the rules on how employers administer health and benefits in states that recognize same-sex marriage.

Though only thirteen states and the District of Columbia currently permit same-sex marriage, employers may want to consider making changes to their benefit plans anyway.  It is possible that in the near future, other states will sanction same-sex marriages and getting ahead of the trend could in the long run, create improved employee relations, and provide administrative simplicity.

Changes in benefits in states that recognize same-sex marriage

Before Windsor, offering special enrollment under HIPAA to a same-sex spouse was the employer’s decision, now employers are required to offer special enrollment to a same-sex spouse who is eligible for HIPAA coverage.

Before Windsor, employers were not required to offer COBRA to an employee's same-sex spouse or the children of a same-sex spouse enrolled in coverage under group health plans.  Since the Supreme Court’s decision, however, employers are required to offer an employee's same-sex spouse and children independent COBRA election rights to continue coverage under group health plans.

Other plans and benefits that are affected by the recent decision include health savings accounts and dependent care assistance.  Cafeteria plans, however, for the time being remain intact and are not subject to changes at this time.

Discuss your healthcare and benefit plans with a NY employment law attorney

Landmark legal decisions have a huge impact on society and also often greatly affect how a company does business.  If you operate a business in a state that sanctions same-sex marriage, you should speak to an employment law attorney to determine how best to proceed in light of the Windsor decision.  For 34 years, Stephen D. Hans & Associates has helped New York employers navigate the legal system and he can help you.  To discuss your health plan and benefit programs or other employment law matters, contact our office  or call 718-275-6700 to schedule an appointment.

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Warning Employers: New Equality Laws Coming Down the Pike
by cjleclaire
Jul 25, 2013 | 13961 views | 0 0 comments | 201 201 recommendations | email to a friend | print | permalink

Early in April of this year, a multitude of corruption and sexual harassment scandals erupted out of our state capital.  I applaud those bringing the offenders to justice as those who prey on others and break the law should be punished.

However, as a result of these revelations, advocates and other officials are leveraging the troubles to enact reforms and new laws before the end of the legislative session in June.

Governor Cuomo’s response to the rash of scandals was: “There’s been bad publicity.  You know how you counter bad publicity?  Good publicity…”  “You know how you get good publicity?  Do something.  Pass bills that help the people of the state of New York.”

Chief among the new bills is a favorite of the governor, the 10-point “Women’s Equality Agenda”.

How does this affect employers?

The 10-point plan covers several issues that will have a direct impact on employers, their hiring and firing practices, and their sexual harassment policies.  In brief the points are:

1.    Protect reproductive health and choice

2.    Achieve pay equity

3.    Stop sexual harassment in all workplaces

4.    Allow for attorneys’ fees in employment, lending and credit discrimination cases

5.    Strengthen human trafficking laws

6.    End family status discrimination

7.    Stop source-of-income discrimination

8.    Stop housing discrimination for victims of domestic violence

9.    Stop pregnancy discrimination once and for all

10. Protect victims of domestic violence by strengthening order-of-protection laws

In reviewing the list above you can see that several of these points will directly affect you as an employer.  Even property owners who own rental property will be affected.  So yet again, there will be more regulations, laws and rules that you will be required to comply with.

A New York employment attorney can help you stay in compliance

Scandals come and go but once something becomes law, it is usually here to stay. To learn how we can help you protect yourself and your company, contact us online  or call (718)275-6700 today to schedule an appointment.  Remember, an ounce of prevention is worth a pound of cure.

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Sex discrimination can haunt you long after the fact
by cjleclaire
Jul 11, 2013 | 12437 views | 0 0 comments | 113 113 recommendations | email to a friend | print | permalink

Julie Hermann, who was recently hired by Rutgers University to forge a new path for their athletics program has become the center of a storm which could turn out to be yet another Rutgers controversy.  The issue is two-fold: Accusations of her misconduct in a coaching job she held in the 90s and; A 2008 sex discrimination lawsuit at Louisville when she was a senior athletics administrator.

In the 2008 case, an assistant track and field coach said she complained to Hermann about sexist behavior and discriminatory treatment by the head coach.  Three weeks after taking her complaint to the human resources department, the assistant coach, Mary Banker, was fired.

The revelation of Banker’s lawsuit which holds Hermann largely responsible for Banker being fired, will probably only intensify the roiling dispute at Rutgers over the hiring of Hermann in the wake of the Mike Rice abuse case.  Rice, the former men’s basketball coach, was seen berating players at practice in a video broadcast by ESPN.  The video led to Rice being fired and Tim Pernetti, the athletic director resigning after Rutgers officials were criticized for suspending Rice instead of firing him when they learned of the video.

State legislators, private donors, and other critics have been very vocal about Hermann’s hire.  In fact, some have asked her to resign.

Perception can be reality in discrimination cases

In the 2008 lawsuit, Banker was awarded $300,000 for mental and emotional distress, $71,875 in lost wages and $149,325 in attorney fees by the jury.  However, a Kentucky appeals court overturned the verdict.  Banker’s attorney is now asking the Kentucky Supreme Court to hear the case.  But whether this case is ultimately decided in or against Hermann’s favor, it is likely she will always be haunted by the alleged discrimination and it will follow her wherever she goes.

Avoid the pitfalls of missteps with a NY employment lawyer’s help

No one sets out to get embroiled in employment discrimination lawsuits but it happens.  An experienced NY employment defense lawyer can help you understand the potential pitfalls of handling employees and offer guidance on how to avoid mistakes.  To discuss your employment policies and issues, contact us online  or call 718-275-6700 today to schedule an appointment.

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Hold on to your hats employers: Unemployment discrimination becomes illegal in New York City
by cjleclaire
Jun 20, 2013 | 8544 views | 0 0 comments | 394 394 recommendations | email to a friend | print | permalink

As of, June 11, 2013, a new law went into effect that makes discriminating against job applicants because they are unemployed a violation of human rights.  Violations of this law will be punished the same way that discriminating against job applicants based on race, national origin, gender, disability, sexual orientation or any other category protected by the NYC human rights law.

With the new law in place, people who believe they have been discriminated against because of their unemployment status can file a complaint with the New York City Commission on Human Rights or can sue you in court.  Employers found in violation of the law can be found liable for:

  • Injunctive relief
  • Back pay
  • Front pay
  • Compensatory damages
  • Punitive damages
  • Attorney’s fees and costs
  • Civil fines up to $250,000
How the new law affects you

The new discrimination law is applicable to employment agencies, employers with four or more employees and includes independent contractors who do not have their own employees. 

The new law prohibits you from:

  • Basing hiring, pay and benefits, terms, conditions, or other employment privileges on a job seeker’s employment.
  •  Advertising a job (whether in print or electronically) that says being currently employed is a requirement or qualification for the position, or that unemployed job applicants will not be considered.

 However, employers may still consider job-related qualifications including:

 

  • Professional or occupational license
  • Certification
  • Registration
  • Permits or other credentials
  • Required level of education or training
  • Level of professional, occupational or field experience
You may also ask about the reasons your applicant left his or her previous job.  And you are not forbidden from determining that only applicants already employed by you should be considered for the position, compensation, or privileges (hiring from within).

 

Steps you can take to protect your company

One of the most difficult things for employers is navigating the many new regulations and laws that go into effect, often without notice.  And navigating this new job discrimination law may require the assistance of a skilled NYC employment law attorney.  However you can take a few steps right now that may help, such as:

 

  • Review your job ads for objectionable language relative to the new law.  For example, an ad stating, “experience in the last six months required,” could be a red flag.
  • Tell your human resources personnel they must not automatically eliminate candidates because they are currently unemployed.  Also, check your website and printed materials for similarly expressed concepts and remove or rewrite the language.
  • Review job application forms and interview questions regarding employment status for prohibited language and correct them.

Talk to an employment law attorney today

Stephen D. Hans & Associates, P.C. can answer your questions regarding the new human rights law.  We can help you craft and change your policies so you are in compliance with the new law and other employment law compliance issues.

 

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Is your sexual harassment policy effective?
by cjleclaire
Jun 06, 2013 | 6640 views | 0 0 comments | 344 344 recommendations | email to a friend | print | permalink

In our politically correct and litigious world, employers need to establish strong and specific policies regarding sexual harassment.  Not only is this behavior against the law but if a sexual harassment case is proved it can affect your reputation, finances, and even the future of your company.

What is sexual harassment?

The Equal Employment Opportunity Commission  (EEOC) states that it is “unlawful to harass a person (an applicant or employee) because of that person’s sex.”  And sexual harassment can manifest as: unwanted sexual advances, requests for sexual favors, and other verbal or physical actions that are sexual in nature.  Even offensive remarks about a person’s gender can constitute sexual harassment.

 Examples of sexual harassment include but are not limited to:

  • Offensive jokes
  • Slurs
  • Name calling
  • Physical assaults or threats
  • Intimidation
  • Ridicule
  • Insults or put-downs
  • Offensive objects or pictures
  • Interference with work performance

And harassers can include:

  • The victim’s direct supervisor
  • A supervisor in another area
  • An agent of the employer
  • A co-worker
  • A client of the company

Employer liabilities for sexual harassment

As an employer, you can be held liable for harassment by a supervisor that results in termination, failure to promote or hire, and loss of wages.  You can also be held liable for harassment by non-supervisory employees or non-employees over whom you have control such as independent contractors or customers on the premises.  If the accuser can show that you knew or should have known about the situation and failed to take quick and appropriate action you may find yourself paying fines, settlements or defending employees in criminal and civil court.

Prevention is the best approach – talk to an employment law attorney

The risk of EEOC complaints, civil lawsuits, hefty legal fees, and settlements of hundreds of thousands of dollars inspires the need to create a zero tolerance policy on sexual harassment for your company.  An experienced NY employment law attorney can help you determine the appropriate policies and steps you need to take to prevent and correct sexual harassment within your company.  If you have questions about your company’s sexual harassment policies contact us online  or call 718-275-6700 today to schedule an appointment.

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Warning: Your social media policies may get you in trouble with the NLRB
by cjleclaire
May 31, 2013 | 11101 views | 0 0 comments | 1072 1072 recommendations | email to a friend | print | permalink

As social media becomes the norm in everyday life, federal regulators are getting touchy about employers creating policies that limit what employees can say online.

In the past, employers have discouraged employees from making negative comments about the company or staff such as:

  • Discussing company matters publicly
  • Criticizing managers
  • Complaining about co-workers
  • Disparaging the company in general

And if an employee was found in violation of the above, often termination occurred.

However, recent rulings have made such general restrictions illegal.  The National Labor Relations Board  (NLRB) has said employees have the right to freely discuss work conditions without fear of retaliation – whether online or off line.

These actions by the NLRB have upset many companies because it is taking a law enacted during the industrial area meant to protect workers’ rights to unionize and is applying it to Internet activities of most private-sector workers.

However the NLRB claims they are merely adapting the National Labor Relations Act, to the modern day workplace.

Protect your company by modifying your social media policies

One of the best ways you can protect your company is by adopting social media policies that are focused and specific.  For example: Rather than telling employees not to disclose confidential information, specify that they should not disclose, trade secrets, proprietary information, product release dates or private client details.

Even if you believe you are following the NLRB rules, putting clear limits on social media postings without crossing the line  can still be tough.  However, employers are still entitled to enforce workplace policies including the prohibition of:

  • Sexual harassment
  • Workplace violence
  • Threats of violence,
  • Sabotage
  • Abusive and malicious activity

And you can still limit the use of social media at work, during work hours, and on company equipment.

Discuss your social media policies with an employment attorney

Considering the current trend of increased regulation and oversight, it may be wise to review your current social media policies.  An employment attorney can offer advice on how best to craft your policies so you remain compliant with NLRB rules and regulations.  To schedule an appointment, contact our office online  or call us at (718) 275-6700 today.

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Off-the-clock Claims Are Subject to Wage and Hour Lawsuits
by cjleclaire
May 13, 2013 | 4595 views | 0 0 comments | 36 36 recommendations | email to a friend | print | permalink

Author: Hans & Associates, P.C.

Off-the-clock claims are one source of wage and hour lawsuits. In an off-the-clock claim, employees assert that the employer forced them to spend time working off the time clock and they did not receive pay for it. Ways that off-the-clock work can occur are when employees work through lunch, breaks, stay late or come to work early. According to the Fair Labor Standards Act (FLSA), the rules that businesses must abide by are as follows:

  • Employers must pay FSLA covered non-exempt employees at least the minimum wage
  • For hours worked over 40 hours a week, employees receive one and one-half times their regular pay
  • Hours worked mean all time employees spend on duty, on the work premises or at other designated work places along with additional time they are permitted to work

Business practices that employers can put into place to protect against off-the-clock claims include:

  • Enforcing strict rules that prohibit off-the-clock work
  • Ensuring supervisors do not allow employees to work off-the-clock
  • Have employees keep records of time worked and submit their time records
  • Provide open lines for grievances regarding non-compensated work
  • Take disciplinary actions for violations of off-the-clock rules

Off-the-clock work can add up to significant amounts of money owed for unpaid work, and businesses are liable for paying.

At Hans & Associates, our New York employment defense lawyers offer business clients affordable services to resolve wage and hour disputes, generally through negotiated settlements outside of court.

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FSLA Challenges ― How Does Overtime Work with a Fluctuating Work Week?
by cjleclaire
May 01, 2013 | 12425 views | 0 0 comments | 38 38 recommendations | email to a friend | print | permalink

In recent years, the changes and complexities of wage and hour laws have made it difficult for small businesses to comply with regulations. Yet, with wage and hour lawsuits on the rise, small businesses are increasingly vulnerable to legal action. It is vital for small businesses to put practices in place that are in compliance with the Fair Labor Standards Act (FLSA). One issue in particular that businesses have trouble with are overtime pay and fluctuating work weeks. 

In May 2011, new FLSA revised regulations went into effect. The fluctuating work week method of computing overtime compensation for salaried non-exempt employees allowed employers to pay employees non-overtime bonuses and incentives. Employees with fluctuating work weeks must have an understanding with their employer and receive a fixed salary, whether working a few hours or many hours in the week, whether working over 40 hours or under 40 hours a week . The bonus must be included in the regular pay calculations. Previous to this revision, employers were not allowed to pay employees bonuses under the fluctuating work week method. However, the law was revised because paying bonuses for working undesirable hours is beneficial for employees.

To avoid having one or more employees claim that you did not pay them what they were owed under the FLSA, you must make sure that your business incorporates practices compliant with FLSA rules.

At Hans & Associates, a New York employment defense lawyer can help you review your wage and hours practices to ensure they are sound and provide you with legal defense if facing a wage and hours lawsuit.

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Employers Should Start Using New E-Verify Forms
by cjleclaire
Apr 24, 2013 | 6009 views | 0 0 comments | 39 39 recommendations | email to a friend | print | permalink

Author: Hans & Associates, P.C.

Staying on top of employment law changes can be difficult. On March 8, 2013, the United States Citizenship and Immigration Services (USCIS) published the Revised Employment Eligibility Verification Form, which is a new I-9 Form. Employers must use new I-9 forms by May 7, 2013, or they face penalties. Unless you are required to re-verify an employee, you do not have to complete new I-9 forms for current employees. You can download the new forms at I-9 Central.

Businesses sometimes have confusions about the differences between I-9 Forms and E-verify. I-9 forms have the purpose of helping employers verify employee's identities and employment authorizations. E-Verify is the internet based system set up by the USCIS that cross references government records to confirm an employee's authorization to work in the United States. The I-9 form is the nucleus of the E-verify system because it provides data so E-Verify can operate. However, E-verify is still a voluntary system for employers whereas submitting I-9 forms is mandatory. Other differences are that Form I-9 does not require submitting an employee's Social Security number (SSN) whereas E-Verify requires submitting an SSN. Form I-9 does not require a photo on identity documents and E-Verify does.

At Hans & Associates, our New York employment defense lawyers work with business owners to help them stay current with employment law changes and compliance requirements. We can help you comply with new changes and avoid penalties. In the long run, having an effective employment defense law firm to provide you with legal guidance can save you considerable business expenses.

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