Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 7953 views | 0 0 comments | 13 13 recommendations | email to a friend | print | permalink

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Are contestants of reality shows, employees?
by cjleclaire
Oct 23, 2013 | 14563 views | 0 0 comments | 228 228 recommendations | email to a friend | print | permalink

American Idol faces a discrimination lawsuit filed by 10 black former contestants who were disqualified from the show.  The plaintiffs claim they were disqualified for reasons other than singing, including criminal history, and were given the “right to sue” by the Equal Employment Opportunity Commission (EEOC), allowing the lawsuit they filed in July to move forward.

The lawsuit alleges that over the course of a 10-year period, Idol producers engaged in a pattern of racial discrimination by using the arrest history of black male contestants as a reason for disqualification.  The suit also claims that 31 percent of all black Idol semi-finalists were disqualified for reasons unrelated to their singing ability.  And further alleges that white and non-black contestants were not subjected to the same standard for disqualification.

Proving the claims

In order to prove that American Idol discriminated against the plaintiffs after asking about arrest histories, the young men must first prove that they were employees of the show.  This is a significant hurdle to overcome for the plaintiffs because asking an employee or a job applicant about previous arrests is a violation of California law.  Additionally, the plaintiffs must also prove that the discrimination took place within 300 days of filing their lawsuit.

Independent contractors and employees are not the same

Treating an employee as an independent contractor, can get you in hot water and subject you to possible lawsuits and heavy fines.  In order to prevent future liability, as a business owner it is important to understand the difference between an independent contractor and an employee:

An independent contractor:

•    Operates under a business name

•    Has their own employees

•    Maintains a separate business checking account

•    Advertises business services

•    Invoices for work completed

•    Has more than one client

•    Has own tools and sets own hours

•    Keeps business records

An Employee:

•    Performs duties dictated or controlled by others

•    Is given training for work to be done

•    Works for only one employer

Talk to a NY employment law attorney about your employment issues today

Running a business is a challenge in today’s world and employers can often make unintended mistakes for which they pay dearly.  Treating an employee as an independent contractor is just one of the many things that can put you and your business at risk.  To discuss your employee issues, contract needs or other employment matters, contact an experienced NY labor & employment  law attorney today.

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Appeals court determines award is subject to withholding
by cjleclaire
Oct 15, 2013 | 7416 views | 0 0 comments | 154 154 recommendations | email to a friend | print | permalink

In Noel v. New York State Office of Mental Health Central New York State Psychiatric Center, an employee sued his employer under Title VII and won a $318,217 judgment. Part of that judgment included $280,000 for back and front pay. The employer sent a check directly to the employee for the net amount after withholding of $139,582.

The employee returned to court and argued that he was entitled to the full award. Stating that since the settlement was a jury award the payment wasn’t wages subject to withholding because was a judgment against a liable party. The employer, argued that according to the tax code that the award was taxable wages—and the Internal Revenue Service took the employer’s side. The trial court ruled in favor of the employee and instructed the employer to repay the withheld taxes.

However, the federal appeals court reversed that decision and ruled that the award was wages and subject to withholding. Stating that Title VII awards for back and front pay are wages, and employers have a duty to withhold federal and state income taxes and FICA taxes.

This is a good illustration to employers who are involved in employment litigation. Ensure that your management and HR personnel know that back and front wages are subject to withholding and fully taxable.  And settlement agreements should include language that clearly spells this out so there is no confusion regarding the taxability of payments.

Talk to an employment law attorney today

Whenever possible, it is preferable to avoid litigation with current and former employees.  However, when you need to go to court an experienced NY employment law attorney be an invaluable resource. If you are facing an employment lawsuit or investigation or if you need help to avoid employment disputes contact us online or call 718-275-6700 to schedule a consultation today.

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New laws restrict access to employee social media accounts
by cjleclaire
Oct 10, 2013 | 2497 views | 0 0 comments | 55 55 recommendations | email to a friend | print | permalink

In 2012, state legislatures started introducing laws to restrict employers from obtaining user names and passwords to employees' personal and private social media accounts.  As 2013 rolls forward, the trend is continuing with proposed legislation 26 states .  Twelve states already have such laws in place enacted  since the beginning of 2012.

Champions of keeping employers out of employee’s personal social media accounts site privacy as the issue and claim that employer’s concerns about protecting proprietary company information is already covered by other laws.  Further they claim that employers screening social media accounts of job applicants are dancing dangerously close to discrimination issues, which is expressly illegal.

Businesses are fighting back and state that the new laws keeping them out of employee’s social media accounts provide a venue for employees to divulge proprietary information and inhibit their ability to investigate such matters.  Some states, are trying to add amendments to allow companies to require access to personal digital accounts when investigating allegations that the employee has given away proprietary company information or has engaged in other forms of workplace misconduct  In Colorado, employers can request access to their employees' personal accounts when investigating reported breaches of compliance, regulatory and securities laws; and  company proprietary information or financial data

However, it is clear in the Colorado law that fishing expeditions are forbidden and the employer must have supporting information to pursue this avenue of investigation—and fines can be assessed against employers for violations.

The states and legal guidance

States with such laws already on the books include:

•    Arkansas

•    California

•    Colorado

•    Delaware

•    Illinois

•    Maryland

•    Michigan

•    New Mexico

•    Oregon

•    Utah

•    Vermont

•    Washington

States with pending legislation include:

•    Arizona

•    Connecticut

•    Georgia

•    Hawaii

•    Iowa

•    Kansas

•    Louisiana

•    Maine

•    Massachusetts

•    Minnesota

•    Mississippi

•    Missouri

•    Montana

•    Nebraska

•    Nevada

•    New Hampshire

•    New Jersey

•    New York

•    North Carolina

•    North Dakota

•    Ohio

•    Pennsylvania

•    Rhode Island

•    Texas

•    West Virginia

•    Wisconsin

Discuss your social media policy with a NY employment law attorney

If you need assistance in developing employee social media policies that comply with the new laws, contact us online  or call 718-275-6700 to schedule a consultatio
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Supreme Court Ruling puts limits on employer liability in harassment cases
by cjleclaire
Sep 11, 2013 | 9535 views | 0 0 comments | 138 138 recommendations | email to a friend | print | permalink

In Vance v. Ball State University, the Supreme Court considered the definition of supervisor to determine employers’ liability for workplace harassment .  At the heart of the case was the issue of whether a supervisor was an employee with authority to direct and oversee work or, an employee who had the power to take employment actions such as hiring, firing, demotion, promotion, or discipline on a harassment victim.

The importance of the distinction

Making this distinction was important because under the Civil Rights Act, the position of the harasser affects the level of employer liability.  For example, if the harasser is only the victim’s coworker, the employer is only liable if it failed to control working conditions.  However, if the harasser is a supervisor and some action is taken against the victim, the employer is exposed to a higher level of liability.

Even when no definitive action is taken, the employer is still required to show that reasonable action was taken to prevent and quickly correct any harassment.  Further, the employer would also need to show that the harassed employee failed to avail themselves of preventive or corrective opportunities the employer provided.

The outcome

In the Vance case, a female employee filed a suit against her employer, alleging that another employee created a racially hostile work environment.  In both the district court and the appeals court, the employer was found not liable because the harassing employee was not a supervisor.

The plaintive took the case to the Supreme Court.  In a 5-4 vote the high court ruled that, for the purposes of vicarious liability under Title VII, an employee is a supervisor only if they have the authority to take tangible employment actions against the victim.

Talk to a NY Employment Law Attorney About Your Harassment Policies

A harassment lawsuit against your company can have devastating effects.  A NY employment law attorney can provide advice and guidance on how to best craft your harassment policies so your company is protected.  Stephen D. Hans & Associates has helped New York employers develop company policies that protect them against lawsuits for 34 years.  To discuss your harassment policies or other employment law matters, contact our office  or call (718)275-6700 to schedule an appointment.

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Obama NLRB Appointments Overturned by 3rd Appeals Court
by cjleclaire
Aug 29, 2013 | 6208 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 | 4932 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 | 12764 views | 0 0 comments | 200 200 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 | 11383 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 | 7855 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 | 6077 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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