Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 10006 views | 0 0 comments | 13 13 recommendations | email to a friend | print | permalink

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How Can Employers Avoid Litigation with the EEOC?
by cjleclaire
Sep 16, 2014 | 1458 views | 0 0 comments | 87 87 recommendations | email to a friend | print | permalink

The Equal Employment Opportunity Commission (EEOC) can bring litigation against employers on behalf of workers who file discrimination or harassment claims with the EEOC. Because the EEOC is selective about filing lawsuits it litigates only in a limited number of cases where the grievance is substantial and it deems a lawsuit is warranted. However, by working with an experienced employment lawyer, employers can receive effective legal guidance that often helps them settle and avoid litigation.

A recent case in point where the EEOC decided to litigate involved a restaurant in Fresno, California called Sal's Mexican restaurant. In the lawsuit, the EEOC claimed allegations of sexual harassment and gender discrimination, asserting that a male supervisor sexually harassed a hostess in 2009. She was a teenager at the time and the supervisor's harassment involved unwanted sexual advances, propositions, grabbing her body parts and attempting to kiss her. As a condition for employment the supervisor also made her give him hugs and back rubs. She complained to management repeatedly but management did not handle her complaints. The sexual harassment continued until her resignation from the hostess position in 2010.

Although the restaurant never admitted liability, the owner avoided litigation by entering into a two year conciliation agreement with the EEOC and former hostess. Actions taken in the conciliation included:

  • Hiring a third party employment consultant for assistance with drafting and implementing policies and procedures to address and prevent discrimination and sexual harassment in the workplace
  • Providing all employees with training about their rights and responsibilities regarding workplace discrimination and harassment
  • Monetary relief of $15,000
  • Agreeing to establish a record keeping system to track and monitor complaints  

If you face discrimination or harassment allegations, consult with an experienced employment litigation attorney as soon as possible. For more than three decades, Stephan Hans & Associates has provided effective legal advice and representation to employers in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

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Recent Supreme Court Ruling on Homecare Union Dues Requirement
by cjleclaire
Sep 11, 2014 | 1416 views | 0 0 comments | 63 63 recommendations | email to a friend | print | permalink
Business Employment Attorney in Queens, NY

Many employers are interested to know about cases that affect the power of unions. For decades, unions have challenged employers through disputes or ongoing negotiations over employment terms and other issues.

This summer the U.S. Supreme Court’s ruling in a particular case may influence how unions operate nationwide, potentially limiting their ability to gather revenue from certain non-union members.

The U.S. Supreme Court ruled in the case Harris v. Quinn on June 30, by a narrow five to four decision, that the union could not deduct union fees from government checks that provided for homecare by personal assistants.

Factors in the Harris v. Quinn case involved the role of Medicaid recipients and the State of Illinois, which shared a joint role in determining the employment relationship of personal assistants (PAs). PAs are workers who provide homecare services for recipients in need of institutional care. The State compensates PAs, and customers propose a Service Plan that establishes guidelines for the PA’s duties. PAs were allowed under executive order to join a labor union that would engage in collective bargaining on their behalves under the Illinois Public Labor Relations Act. Service Employees International Union Healthcare Illinois & Indiana (SEIU-HII) became the exclusive union for rehabilitation program employees. The issue in the case was that the SEIU-HII required all workers who did not wish to join the union to pay a union fee. A group of Rehabilitation Program PA’s brought a class action lawsuit against the SEIU-HII, alleging that the required fee violated their First Amendment rights.

In many instances, the individuals providing homecare were relatives who had taken in a loved one to live with them so the loved one could avoid entering an institution.

If as an employer, you face issues with a union, it is wise to consult with an experienced employment litigation and labor law attorney. Since the founding of the firm in 1979, Stephen Hans & Associates has offered effective legal assistance to business owners facing labor law issues.

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An Intern's Right to Sue for Discrimination in New York
by cjleclaire
Sep 03, 2014 | 3712 views | 0 0 comments | 176 176 recommendations | email to a friend | print | permalink
Legal loopholes sometimes exist that preclude bringing a lawsuit because the letter of the law does not protect an individual's rights. In the past, this may have been the case with interns, who because they did not receive any pay for their work could not be considered employees and therefore did not receive protection under employment discrimination laws.

However, this fact changed on July 22, 2014, when the Governor of New York signed into law an amendment providing civil rights protections for interns. Under this amendment to NY civil rights law, the definition of an intern is an individual who performs work for an employer for the purpose of training and:

  • The employee is not committed to hire the person performing the work at the conclusion of the training period
  • The employer and person performing the work agree that the person is not entitled to wages for the work performed
  • The work performed provides or supplements training that may enhance the intern's employability, provides the intern with beneficial experience, does not displace regular employees and is performed under the close supervision of existing staff

Interns have the right to freedom from discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status or domestic violence victim status.

For employers, an integral aspect of running a successful business involves staying apprised of legal and regulatory changes. An experienced employment litigation attorney can work with you to ensure your business policies and operating procedures comply with new employment laws.

At Stephen Hans & Associates, our attorneys offer business owners valuable legal assistance and representation in cases involving disputed employment or labor law issues.

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What Employers Should Know about Paternity Leaves
by cjleclaire
Aug 21, 2014 | 5708 views | 0 0 comments | 241 241 recommendations | email to a friend | print | permalink

Queens NY Employment Defense Attorney

The Family Medical Leaves Act (FMLA) grants the right to mothers and fathers to take up to 12 weeks off for maternity or paternity leaves so they can spend time with a newborn. As an employer, understanding your obligations under this law can help you avoid discrimination disputes.

Recently, the New York Post reported that a gay man sued his employer, ASMALLWORLD, for retaliating against him for taking a paternity leave. ASMALLWORLD is a private website, by invitation only, for socially prominent business owners and individuals. When Tonny Uy’s daughter was born in 2012, he requested a paternity leave. The employee handbook allowed 40 days of paid leave for a newborn baby. Prior to asking for the leave, the company considered him a model employee.

Initially, the company was unwilling to grant the leave until he referenced the company rule. Tonny stated that the supervisor’s attitude toward him changed after the leave. She became critical of his job performance. Months later he was told that because of budget cuts, his job was being reduced to part time, and the company terminated him. However, three months prior to his termination, the company issued a new handbook that did not provide for paid family medical leaves. Shortly after he left the company, he discovered that the company made his replacement a full-time employee.

Tonny sued based on gender discrimination. He claimed that female employees had no problem being granted maternity leaves, but his treatment arose out of the fact he was male and seeking a paternity leave to spend time with his newborn child.

The company now faces a lawsuit for what the Post reported as unspecified damages.

Employers are wise to consult with an experienced employment law defense attorney and find out whether their policies or actions could be in violation of employment or labor laws. Stephen Hans & Associates has assisted business owners with employment law issues for decades, dating back to the founding of our firm in 1979.

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The Annual Pay Notice Requirement of the New York Wage Theft Prevention Act Could Be Close to Ending
by cjleclaire
Jul 18, 2014 | 18239 views | 0 0 comments | 335 335 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

After the Wage Theft Prevention Act went into effect, restaurant owners and other types of business owners became burdened with paperwork as they complied with annual requirements. They had to provide wage notices to all employees by February 1 of every year. This was a costly and cumbersome requirement.

Recently the New York legislature passed a bill that eliminates the annual reporting requirement. The bill is sitting on Governor Cuomo's desk awaiting his signature.

Business owners must still provide wage notices when hiring a new employees and earnings statements to employees. In fact, the penalties for failing to do so are stiffened by the new bill. Here are some aspects of the new bill you should be aware of:

  • Fines for failures to provide new hires with pay notices were $50 a week and up to a maximum fine of $2,500 and they increased to $50 per week and a $5,000 maximum fine.
  • Fines for failures to provide earning statements were $100 a week with a $2,500 maximum and increased to $200 a day and up to a $5,000 maximum fine
  • Owners can no longer dissolve an business entity and create a new one to avoid penalty fees because the fees pass on to the new business entity

We understand that you do not have time to keep up with new laws that require compliance and can potentially affect your business. As employment law attorneys, we keep our clients informed and help them stay compliant with legal changes as they occur. Stephen Hans & Associates has assisted business owners with employment law compliance issues for decades, dating back to the founding of our firm in 1979.

 

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How Much Can Allegations of Discrimination Cost You?
by cjleclaire
Jun 11, 2014 | 15615 views | 0 0 comments | 404 404 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

Discrimination is a serious issue for employers. It can lead to disputes, lawsuits and even forced business sales. Forced business sale, substantial fines and the disgrace of being ousted from the National Basketball Association (NBA) are the challenges Clippers owner Donald Sterling faced over racial comments he made in a taped conversation with his girlfriend, V. Stiviano.

CNN reports this is not the first time discrimination has been a issue for Mr. Sterling. In an earlier lawsuit, Sterling paid millions to settle a federal case where African American and Hispanic claimants accused him of excluding them from his rental properties.

Initially, Sterling agreed to have his wife, Shelly Sterling, handle negotiations to sell the Clippers. Various bidders came forward, such as CEOs of Microsoft and Oracle, Oprah Winfrey and film producer, David Geffen. Recently Forbes magazine reported that after negotiations were in progress, Sterling recanted on the agreement to allow Shelly to negotiate the sale. Subsequently, his estranged wife Shelly had Sterling, who is 80 years old, declared mentally incapacitated, which allowed her to control the trust. Recently, she announced the sale of the team to former Microsoft CEO Steve Ballmer for $2 billion, which is quadruple the highest price ever paid for an NBA team.

It has been decades since Sterling bought the Clippers in 1981 for $13.5 million. The family will lose millions of dollars through capital gains taxes from the sale, which would have been avoided by having the team ownership pass through Sterling’s trust to his estate upon his death. A stepped up basis (current market value at time of death, not time of purchase) is used for estate valuations.

After the sale announcement, Mr. Sterling filed a lawsuit, suing the NBA for damages. However, Shelly Sterling informed parties that the Sterling trust will indemnify the NBA for lawsuits being brought by Sterling.

Needless to say, most business owners do not have millions at stake, but the importance of adhering to anti-discrimination policies does not lack emphasis through this example, even for billionaires.

Stephen Hans & Associates, an employment litigation law firm that has served business clients in the Long Island City and New York area since 1979.

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Wage and Hours Cases Setting Precedents for Tipped Employees
by cjleclaire
May 31, 2014 | 18021 views | 0 0 comments | 541 541 recommendations | email to a friend | print | permalink

 

Restaurant owners are subject to numerous regulations they must comply with and as various cases are litigated, rulings establish new precedents that can change how the industry does business. Maintaining a viable restaurant in today's world often requires due diligence from a legal perspective. The best way to stay on top of a changing legal landscape is to work closely with an employment law attorney who can keep you apprised.

Several recent cases are significant for the restaurant industry in how it manages tipped employees:

  • Matthew Scott v. Souper Salad is a class action case brought against LNC Ventures LLC, the owner of the Souper Salad chain, which has restaurants in 45 locations. The plaintiff alleged the company violated the Fair Labor Standards Act (FLSA) by requiring tipped employees to spend more than 20 percent of their time doing non-tipped employees' work. Tasks included cleaning, stocking supplies, sorting silverware and food preparation. Tipped employees work for lower rates than minimum wage employees and the lawsuit alleged these tasks prevented them from making fair wages. The plaintiff sought compensation for all hours worked that were less than minimum wage, interest, liquidated and punitive damages and attorneys' fees. The case settled out of court under a confidential agreement.
  • Flood et al. vs. Carlton Restaurants et al is a lawsuit brought by several employees against Carlson Restaurants Inc., which owns TGI Friday's. The plaintiff is seeking certification as a class for TGI Friday's workers nationwide. Some of the FLSA allegations claimed in the lawsuit are that restaurant managers require off-the-clock work before the restaurant opens and after it closes that is not reflected on employee time cards and records. In addition, the plaintiff alleges that in violation of the FLSA, tipped employees have to spend significant time performing tasks that do not allow them to earn tips, such as food preparation, stocking inventory and cleaning. The case is being tried in the New York Southern District Court.

If you are a business owner with questions or concerns about wage and hours issues, contact Stephen Hans & Associates, an employment litigation law firm that has served clients in the Long Island City and New York area since 1979.

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Best practices for avoiding employee lawsuits
by cjleclaire
May 16, 2014 | 10238 views | 0 0 comments | 542 542 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

Small businesses often feel like a family. You’re a small group, perhaps you socialize outside of work or have a company baseball team where everybody gets along great. The idea that one of your employees might sue you never enters your mind—until one of them does. And as far as the law is concerned, no matter how much you like your employees, they are still your employees. And the law has ‘protections’ in place for employees. When you run a small business, you need take steps to protect yourself and your company.

The ABCs of employee lawsuits

Most employee lawsuits stem from behavior on the job and by their very nature they can be difficult to defend. Discrimination, harassment and retaliation make up the lion’s share of suits filed against employers. The U.S. Equal Employment Opportunity Commission (EEOC) protects employees if they are a member of a “protected class” such as race, religion, gender, age, and disability. And what many employers do not know is that the EEOC can prosecute on behalf of claimants—which means that your employee may not even need to have an attorney in order to file a suit against you.

An employee must show four things in order to file a discrimination or harassment complaint with the EEOC:

That he/she is a member of a protected class

That he/she is qualified and performing in a satisfactory manner

That he/she suffered an adverse employment action because he/she was a member of a protected class.

The good news is that just because the court allows the suit to proceed doesn’t mean that you have lost. It simply means that you now have the burden to prove that the employment action you took was for legitimate business reasons. This is where documentation really counts, such as written warnings, performance reviews, time cards, evaluations, disciplinary actions, etc.

If you have an employee handbook which outlines your policies and procedures it will likely be your most valuable asset in an employee lawsuit. Your handbook should contain policies on:

  • Discrimination, harassment and retaliation
  • Any disciplinary processes
  • The procedure to take in making complaints

Such policies should also include an open door policy for reporting all complaints of discrimination, harassment and retaliation. It’s also wise to have employee training in your anti-discrimination policies.

Best practices for protecting against employee lawsuits

To help reduce and avoid preventable employee lawsuits, the following is a good guide to use:

Hire an experienced employment attorney. Even though you have a small business and you need to control costs, downloading template policies from the Internet will not protect you. An experienced attorney understands the federal, state, and local laws that apply to employment and he or she can keep you in compliance with these laws.

A comprehensive employee handbook. If your handbook does not cover discrimination, harassment and retaliation, then it is incomplete. Your attorney can help you draft a proper handbook that protects both you and your employees.

Know employment law. Even if you have an attorney, you would be well-advised to become familiar with employment laws yourself. Ignorance of the law is never an effective defense.

Document everything. Every action taken with employees should be documented. Just as you would keep comprehensive book keeping records, so should you keep comprehensive employee records. And since former employees may also have standing to sue you, it’s wise to maintain records for at least ten years.

Don’t assume you are too small a fish to fry. Small business owners can wrongly believe that since they have few assets no one will bother suing them. However, that type of assumption can land you in court. In some cases, you may only need an annual revenue of $500,000 and as few as four employees to be legally liable.

To avoid employee lawsuits talk to an experienced NY employment attorney

Unfortunately, employee lawsuits are not diminishing. Employees sue their employers and former employers in the hundreds of thousands every year. To ensure you are protected talk to an experienced NY business litigation attorney about your current situation. Your attorney can help you determine how best approach your employee dispute.

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Employee retaliation claims and how to avoid them
by cjleclaire
Apr 29, 2014 | 8771 views | 0 0 comments | 364 364 recommendations | email to a friend | print | permalink


Although there are thousands of employment discrimination cases filed every year, they are not easy for the plaintiff to win. The plaintiff must persuade juries that their employer made an employment decision based on a personal bias against race, religion, sex, age, etc. However, juries are much more receptive to a claim that a manager, supervisor or employer treated an employee unfairly after he or she made an accusation of discrimination or harassment.

Because jurors often see the act of striking back at complaining employees as a natural reaction and human nature, the employer is often the one who suffers in such cases. Employees who file retaliation claims and win are frequently awarded punitive damages—sometimes numbering in the millions. Therefore, a retaliation claim is not something an employer should take lightly.

Reduce your exposure to employee retaliation claims

While it is unlikely you can completely avoid retaliation claims, there are steps you can take that can reduce your risk of having such claims filed against you.

Implement policies against retaliation. You should already have anti-discrimination and harassment policies in place. If your existing policies don’t cover retaliation, then you should update your current policies to include a strong non-retaliation policy. This policy should assure your employees that they will not suffer reprisal for filing complaints. The policy should also contain the process for reporting any retaliation that might occur.

Train managers and supervisors. Implementing non-retaliation policies is a good start but you should also provide training to your supervisors and managers. These employees need to understand what non-retaliation means and how to apply the policy correctly. Provide training on what constitutes retaliation and how to respond to a retaliation complaint. Further, all training should be documented in the event you need to show the steps you have taken to prevent unlawful retaliation.

Do not treat claimants differently. You should never treat an employee who has filed a complaint like an outcast or pariah. Such treatment only validates the employee’s claim of unlawful conduct and renders your policies invalid. Instead, be proactive and communicate with the claimant. Provide him or her with a copy of your non-discrimination policy and offer to help them if they experience problems. And you should follow up to ensure there have been no further problems or incidents. All of these interactions with the claimant should also be documented and kept on file.

Review subsequent employment actions. Any employment actions taken after the complaint that affect the claimant should be reviewed before you make any changes. Such as change of supervisors, transfers to different departments, change of schedule, etc. Your personnel department, legal adviser and/or management personnel should review any proposed actions/changes to ensure that it does not constitute retaliation.

To discuss retaliation claims contact a NY business litigation attorney

When facing a retaliation claim, keep a cool head and talk to an experienced NY business litigation attorney  about your situation. Your attorney can help you determine the best approach to take in your circumstances.

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What is a retaliation claim and why are they so popular?
by cjleclaire
Mar 27, 2014 | 8181 views | 0 0 comments | 367 367 recommendations | email to a friend | print | permalink

According to the U.S. Equal Employment Opportunity Commission (EEOC), in 2012, 38 percent of all EEOC claims were for retaliation.

The reason retaliation claims have become so popular in recent years is because case law and legislative developments have:

Broadened the field of people protected against retaliation

Relaxed the burden for establishing retaliation

Expanded the damages available to a plaintiff in such a claim

Further, retaliation claims have a much higher success rate than discrimination claims.

The basics of a retaliation claim

In essence, a retaliation claim is that the employer ‘took revenge’ or retaliated for an action the employee took that was legally within the scope of employment law.

For an employee to establish an unlawful retaliation claim, he or she must show that:

They took part in a protected activity (such as file a claim)

Their employer took an unfavorable action against them

There was a connection between the protected activity and the unfavorable employer action.

For an employee to establish protected activity they must show the participation in the activity was protected by employment law such as:

  • Filing a claim
  • Testifying
  • Assisting/taking part in an investigation
  • Opposing an unlawful employment practice

The Supreme Court and Congress have broadened coverage and damages

A number of U.S. Supreme Court rulings have expanded anti-retaliation protection to cover things such as:

Broadening the term “employee” to include former employees

Allowing oral complaints to have a comparable weight as filed complaints

The “scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”

Further, legislation passed by Congress has expanded the range of damages and expanded anti-retaliation protections, including compensatory and punitive damages and protections for a wider range of individuals.

Retaliation is easier to believe than discrimination

The other side of this coin is that it is generally easier to believe that a person could retaliate against an accusation of wrongdoing rather than just blindly discriminate against someone because of their race, religion or age. Individuals who are tasked with fact finding are after all human beings and often make a connection between an accusation and a reaction of retaliation. And chances are, plaintiffs in retaliation claims are on counting on that.

Retaliation claims require an experienced NY business litigation attorney to navigate

A retaliation claim can be tricky for a variety of reason but maybe moreso because of that intangible human factor. People generally believe that others seek revenge and often have personal experiences of such occurrences. This alone can make a juror sympathetic toward a plaintiff. If you face a retaliation claim you should speak to an experienced NY business litigation attorney immediately. A skillful attorney can help you determine the legal remedies available in your situation.

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