Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 14508 views | 0 0 comments | 33 33 recommendations | email to a friend | print | permalink

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Is your sexual harassment policy effective?
by cjleclaire
Jun 06, 2013 | 7045 views | 0 0 comments | 348 348 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 | 11969 views | 0 0 comments | 1082 1082 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 | 4873 views | 0 0 comments | 38 38 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 | 13900 views | 0 0 comments | 40 40 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 | 6306 views | 0 0 comments | 42 42 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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Federal Court Denies Wage and Hour Claim against Restaurant Owner
by cjleclaire
Apr 07, 2013 | 15929 views | 0 0 comments | 45 45 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans &  Nils C. Shilitto

The U.S. District Court for the Eastern District of New York has dismissed a wage and hour lawsuit brought by an alleged employee against Prima Pasta & Café, an Italian restaurant in Howard Beach. Attorney Nils C. Shillito, of the law offices of Stephen D. Han & Associates, represented Prima Pasta & Café in the litigation.

The plaintiff in Lugardo V. Prima Pasta & Café, Inc. brought a claim against Prima Pasta for unpaid wages under the Fair Labor Standards Act and the New York Labor Law . The plaintiff claimed that he worked full time as a dishwasher, and later as a pizza preparer, for the restaurant.  However, the restaurant strongly disputed these allegations, as the plaintiff had actually only worked for the restaurant on a select few occasions, serving private parties.  Although Prima Pasta did not have any records of the plaintiff’s time worked and pay received, the owners contested his claims through their own testimony, and that of the restaurant’s manager, at the federal court trial. Despite the restaurant’s lack of records, the court, finding that the plaintiff’s testimony lacked credibility, dismissed all claims and closed the case.

The Importance of the Decision

In most litigation, the general rule is that the plaintiff possesses the burden of proof at trial.  However, in the context of wage and hour disputes where the employer does not maintain detailed time and payroll records, the courts have long held that an employee need not provide his/her own records to substantiate past time worked.  In such situations, the courts shift the burden onto the employer to disprove the plaintiff’s testimony, which is often difficult to do in the absence of adequate records.  The initial burden placed upon the employee’s testimony is not high.  For these reasons, employers without good record keeping practices often find themselves in difficult positions at trial of a wage and hour dispute.  Although maintaining detailed employment records remains absolutely vital, this case shows that it is nonetheless still possible for an employer to win in court without such records.

“Employers must keep detailed employee time and payroll records to be able to defend against wage and hour lawsuits and Department of Labor investigations with confidence,” noted Stephen Hans.  “However, for those employers who, in the past, may not have had adequate record keeping practices, this ruling gives some hope that they can still win and achieve justice.”

The attorneys at Stephen D. Hans & Associates, P.C., have protected the rights of employers in the New York City metropolitan area since 1979. To schedule an appointment, contact our office online or call us at 718-275-6700.

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EEOC Clarifies the Use of Criminal Background Checks in Hiring
by cjleclaire
Mar 15, 2013 | 13938 views | 0 0 comments | 63 63 recommendations | email to a friend | print | permalink

Author: Hans & Associates, P.C. 

NBC News reported that the Equal Employment Opportunity Commission (EEOC) approved by a four-to-one vote new rules for employers who use criminal background checks when screening candidates for hiring. The new guideline addresses the issue of workers who cannot obtain jobs or who lose jobs because of criminal records or arrests. It also addresses Title VII issues where protected classes receive disparate treatment.

Pepsi Beverages settled for $3.3 million in a case brought before the EEOC, according to a 2012 EEOC news release. The EEOC found Pepsi guilty of hiring discrimination against African Americans because it applied criminal background checks that disproportionately excluded African American applicants from permanent hire based on arrests ― even when they had not been convicted and an arrest was pending.

New EEOC guidelines require employers to obtain details about whether or not an applicant has a conviction, how long ago the individual served time and what the nature of the arrest or conviction was. There should be a different treatment of arrests and convictions. The new rules have the purpose of preventing racial and ethnic discrimination and to accomplish this, employers must only use criminal background checks when they can show that the checks are necessary for the business and are job-related.

If you have questions about applying this EEOC ruling and your liability for discrimination lawsuits when you do a criminal background check, consult an experienced New York employment defense lawyer. For decades, firm founder, Stephen Hans has helped businesses with hiring and discrimination issues.

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by cjleclaire
Mar 06, 2013 | 8127 views | 0 0 comments | 47 47 recommendations | email to a friend | print | permalink

What Does the National Restaurant Association (NRA) Think about the Proposed Minimum Wage Raise?

Author: Stephen D. Hans

In the State of the Union address, President Obama proposed that Congress should raise the federal minimum wage in stages from $7.25 to $9.00 by 2015. He also proposed continuing to raise the minimum wage based on the cost-of-living index. Raising tipped wages were also part of his proposal.

The National Restaurant Association (NRA) has traditionally opposed minimum wage increases. The NRA provides its own minimum wage overview and explains that restauranteurs must deal with the following challenges to stay solvent:

  • Impact of healthcare law
  • Rising food costs
  • Higher energy costs

Now on top of these concerns ― they face higher minimum wages. The NRA claims that based on the nature of the restaurant industry, raising the minimum wage will impair restauranteurs’ abilities to hire workers. Unlike some other industries, restaurants have high labor costs. Approximately 33 percent of restaurant sales go to cover labor. The pretax profit margin for a restaurant is generally around three to five percent. Most restaurant employees earn above the minimum wage. The statistics quoted in the article indicated that 80 percent of workers who earn the starting wage work part-time, and 70 percent are under age 25 and 46 percent are teenagers.

Stephen Hans of Hans & Associates, P.C. is a New York employment defense lawyer who for more than 30 years has provided affordable legal services to small and medium-sized business owners throughout Queens and New York City.

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by cjleclaire
Mar 06, 2013 | 7202 views | 0 0 comments | 39 39 recommendations | email to a friend | print | permalink
Federal Judge States that Judicial Approval Not Necessary for FLSA Settlements

Author: Hans & Associates, P.C.

Typically, when parties would settle their disputes over Fair Labor Standards Act (FLSA) issues, such as minimum wage and overtime claims, they had to present their settlement agreement to a U.S. District judge for approval. Because judges routinely approved FLSA settlement agreements, the approval process became a perfunctory procedure. Today with strains on federal and state budgets, courts and other agencies sustaining heavy workloads feel the financial crunch and the need to make processes more efficient. Reuters reported on a ruling from U.S. District Judge Brian Cogan, who rendered a decision that parties in FSLA disputes can settle and voluntarily dismiss cases without judicial approval. Of course, employers do so at their own risk that any release may not be considered effective in future litigation. There is a substantial body of precedent that holding that, when employers settle an FLSA dispute without Department of Labor (DOL) or court approval, the same employee still has the legal right to bring another lawsuit.

Reuters quoted Attorney Stephen Hans in the article as saying that while this judge’s decision is not binding on other courts, it may compel other judges to follow suit. When judges routinely do not alter settlements, why should they cost clients the time to go down to the courthouse for a judge’s seal of approval?

It is a fact that wage and hour cases in federal courts are multiplying like amoebas. Removing the barriers to reaching settlements is a boon for both the court system and parties to FSLA cases because it saves time and expense for everyone.

At Hans & Associates, our New York employment defense lawyers stay current with employment law changes that affect business owners. We devote a significant part of our practice to litigating wage and hour disputes.

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Keeping up with Regulatory Rulings that Affect the Restaurant Industry
by cjleclaire
Feb 26, 2013 | 9375 views | 0 0 comments | 45 45 recommendations | email to a friend | print | permalink

Author: Hans & Associates, P.C.

With the plethora of government regulations, restauranteurs caught up in the every day activities of running a restaurant hardly have time to stay apprised of new restaurant industry regulations. Even so, they must know about changing regulations and the impact on their business.

The U.S. Department of Justice (DOJ) announced in December 2012 that "food allergies may constitute a disability under the Americans with Disability Act (ADA)." Previously in October 2009, the DOH received a complaint alleging that Leslie University had violated the ADA by not making modifications in its polices that would permit students with celiac disease and/or food allergies to enjoy the university's food service and meal plan program. The DOJ investigated and reviewed the complaint and subsequently formed an agreement with Lesley University in Cambridge. The university agreed to offer non-allergic food options to students with celiac disease and other food allergies.

Learning about this ruling, people in the restaurant industry became concerned how the ruling would affect their businesses. According to the National Restaurant Association (NRA), the DOJ indicated that under the ADA restaurants may have to make reasonable accommodations for individuals with food allergies as long as it did not fundamentally alter the restaurant's operation. The DOJ clarified that restaurants may have to answer questions about ingredients but not necessarily provide alternative options.

At Hans & Associates, we keep pace with regulatory changes and rulings that affect the restaurant industry. Our New York employment defense lawyers can help you stay up-to-date and assist you with compliance and regulatory issues.

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