Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 150215 views | 0 0 comments | 278 278 recommendations | email to a friend | print | permalink

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New Non-Tipping Policy – Legal Considerations
by cjleclaire
Oct 27, 2015 | 12190 views | 0 0 comments | 248 248 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 | 13027 views | 0 0 comments | 197 197 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 | 14074 views | 0 0 comments | 240 240 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 | 14930 views | 0 0 comments | 234 234 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 | 16618 views | 0 0 comments | 834 834 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 | 21481 views | 0 0 comments | 518 518 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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New York City Employment Defense Attorneys
by cjleclaire
Aug 18, 2015 | 21121 views | 0 0 comments | 462 462 recommendations | email to a friend | print | permalink

What Is GINA and Why Is It Important to You as an Employer?

Your employment application questions can set you up for a discrimination lawsuit if you are not within the parameters of federal anti-discrimination laws.

GINA or the Genetic Information Nondiscrimination Act is one of the more recent nondiscrimination laws, passed in 2008. This law bears similarities to the Americans with Disabilities Act (ADA) in prohibiting employers from discriminating against applicants or employees based on medical or genetic information, which are often associated with disabilities.

The Equal Employment Opportunity Commission (EEOC) recently brought a lawsuit based on GINA and the ADA against Bedford Weaving, Inc. located in Virginia. The EEOC alleged that the company included questions on its employment application that asked for medical history and genetic information. Pamela Hendrick, who suffers from chronic obstructive pulmonary disease (COPD) applied for work at the company in 2013 and disclosed her medical information in response to questions on the application. The company told Hendrick they had no open positions. However, they in fact had two open positions, and Hendricks qualified for both of them. In addition, companies are required by law to retain applications and hiring documentation for up to one year, and the company failed to do so.

GINA prohibits employers from requesting medical information during the application process and the ADA prohibits requesting disability information.

After parties could not reach a settlement during the pre-litigation conciliation process, the EEOC decided to sue and is seeking damages for back pay, compensation, injunctive relief and punitive damages.

If you have issues arising related to GINA or the ADA, seek legal advice as soon as possible. By working with a competent lawyer, you can often put preventative measures in place to avoid discrimination disputes. Stephen Hans & Associates has decades of legal experience defending employer’s rights in employment litigation and settlement negotiations.

Author: Stephen D. Hans

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Largest Delivery Company in the Nation Sued for Religious Discrimination
by cjleclaire
Aug 04, 2015 | 18805 views | 0 0 comments | 248 248 recommendations | email to a friend | print | permalink

Stephen Hans: Posted on

Religious discrimination has been in the news a lot recently. The Equal Employment Opportunity Commission (EEOC) just filed a lawsuit against the United States’ largest package delivery company, UPS (United Parcel Service, Inc.) based on claims of religious discrimination.

The EEOC alleges that the UPS uniform and appearance policy conflicts with employee’s civil rights to observe their religious practices. Numerous employees were denied hiring or promotions as a result of the UPS policy, when in fact their hair and beards were an aspect of their religious practices.

Examples include a Muslim who applied for a driver helper position in Rochester, N.Y. He wore a beard as part of his religious practice and was told he had to shave his beard and that God would understand if he shaved his beard to obtain a higher paying job. He was eligible for a lower paying job if he decided not to shave the beard. The EEOC found instances at other facilities where Muslims and Christians were forced to shave their beards against their religious beliefs. In addition, a Rastafarian holding a part-time supervisor position in Fort Lauderdale did not cut his hair as part of his religious observance. When he requested a religious accommodation for the appearance policy, the manager told him he did not want any “employees looking like women on his management team.”

The EEOC claims when employees requested religious accommodations for particular positions that UPS put them on hold for years.

When religious accommodations create no undue hardship for an employer, failure to make the accommodation is in violation of Title VI of the Civil Rights Act. In this case, UPS has consistently upheld an appearance policy without making accommodations for employees’ religious practices. UPS employs more than 300,000 workers nationwide and operates in every state.

As a business owner, at the first sign of discrimination issues, it is wise to consult with an experienced employment defense attorney for legal advice. Stephen Hans & Associates brings extensive legal experience to the table when defending your rights as an employer and can provide you with valuable legal guidance.

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Is the Job Applicant’s Age a Factor You Consider When Hiring?
by cjleclaire
Jul 29, 2015 | 18180 views | 0 0 comments | 166 166 recommendations | email to a friend | print | permalink
Author: Stephen Hans

As a business owner, have you heard your manager claim that someone is too old to hire for a particular job? Or, have there been discussions that a younger person would be a better candidate for any number of reasons?

This line of thinking is something to watch out for because it very well may fall under age discrimination and put you at risk for an employment dispute or lawsuit.

Recently, the largest rent-a-car company in the nation, Enterprise Holdings Inc. settled a claim against its subsidiary Enterprise Rent-A-Car Company of Los Angeles. The Equal Employment Opportunity Commission (EEOC) filed charges alleging that the Los Angeles location in Burbank, California denied 10 job applicants positions between 2008 and 2011 based on age. According to the EEOC, all of the applicants were age 40 and older, but the company hired younger less qualified candidates instead. The EEOC found that the company hired no applicants over 40 into their management trainee position during this three-year period. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination of persons who are 40 or older when hiring or promoting employees.

The company disputed the allegation and argued that it failed to hire the older applicants because they were less qualified.

However, rather than pay the expenses of litigation, Enterprise Rent-A-Car of Los Angeles settled for $425,000 and entered into a three-year conciliation agreement. Besides the monetary payment, conditions of the agreement included:

  • Redistribution of the company’s anti-discrimination policy to all employees in the L.A. metro area
  • EEO training emphasizing age discrimination for all staff
  • Maintenance of an appropriate record-keeping system
  • Public press release on the matter

No company is too large or too small to benefit from trustworthy legal defense when facing allegations of discrimination. Stephen Hans & Associates is glad to provide your business with effective legal guidance and representation.

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NYC Employment Defense Discrimination Attorney
by cjleclaire
Jul 22, 2015 | 16652 views | 0 0 comments | 185 185 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

What If an Employee Can’t Work the Schedule the Employer Wants?

In many situations, a schedule conflict is a reason not to hire a prospective employee. However, when the employee’s religion is the reason for the schedule conflict, you must be careful not to violate discrimination laws.

In 2014, the Equal Employment Opportunity Commission (EEOC) brought a religious discrimination lawsuit against a Dunkin’ Donuts franchisee on behalf of Darrell Litrell. Litrell applied for a baker position, was hired and told he would start on a Friday afternoon. He informed the manager that because of his faith as a Seventh-day Adventist, his Sabbath began Friday at sundown and lasted until sundown on Saturday. For this reason, he couldn’t start the job on a Friday afternoon. Subsequently, the manager revoked the job offer.

Litrell sought recourse from the EEOC, which took his case. The franchisee failed to reach a pre-litigation settlement with the EEOC through the conciliation process, and consequently, the case went to trial. The U.S. District Court for the Western District of North Carolina found in favor of the EEOC, ruling that the prospective employee’s rights had been violated under Title VII of the Civil Rights Act of 1964.

The court’s ruling against Dunkin’ Donuts included:

    • Paying $22,000 to Litrell in damages
    • An injunctive relief prohibiting the company from future religious discrimination as part of a five-year consent decree
    • Implementation of a policy to address religious discrimination
    • Annual training for all employees
    • Required reporting of all religious accommodation requests to the EEOC
    • Posting of its religious accommodation policy in all its North Carolina restaurants and facilities

When you have issues that arise with employees regarding potential discrimination, seek legal counsel as soon as possible. Stephen Hans & Associates has decades of legal experience defending employer’s rights in employment disputes and often works to help businesses avoid such issues in the first place.

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