Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
Jan 16, 2013 | 63818 views | 0 0 comments | 72 72 recommendations | email to a friend | print | permalink

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Can You Ask Employees to Undergo Medical Screening and Ask About Medical History?
by cjleclaire
Jan 27, 2016 | 2139 views | 0 0 comments | 95 95 recommendations | email to a friend | print | permalink

New York Employment Defense Attorney talks about Non Discrimination Act

Knowing what you can ask and must not ask employees or job applicants is vital for businesses. With all the information available on the internet today, gathering information may seem like the natural thing to do. However, there are lines you must not cross.

The Genetic Information Nondiscrimination Act of 2008 (GINA) is a relatively recent ant-discrimination law. According to GINA, employers, employment agencies and labor organizations do not violate GINA when acquiring medical information about an employee’s disease or disorder that is not genetic information.

A recent settlement with the EEOC provides an example of what is considered a GINA violation. Joy Mining Machinery settled with the Equal Employment Opportunity Commission (EEOC) regarding a lawsuit where the company requested family medical history on its pre-placement form. The form asked employees whether they had a family medical history for “TB, Cancer, Diabetes, Epilepsy and Heart Disease.” While these questions are routine for doctors, not only are employers prohibited from asking for such medical history, they are also not allowed to purchase genetic information about applicants or employees except under narrow exceptions.

The agreement Joy Mining entered into as part of the settlement included considerable equitable relief and prohibition from unlawful retaliation. The company agreed not to inquire about medical genetic information, to train its management and HR employees regarding GINA, and the EEOC will monitor compliance with the settlement provisions.

At Stephen Hans & Associates, our attorneys counsel company owners, their managers and HR personnel regarding GINA and other anti-discrimination laws. With legal issues, many gray areas exist, and getting questions answered so you follow good practices is important. Working with legal experts to take preventative measures helps you avoid the high costs of legal defense in lawsuits.

 
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What Does the 2016 Minimum Wage Hike Mean for You as an Employer?
by cjleclaire
Jan 19, 2016 | 3061 views | 0 0 comments | 164 164 recommendations | email to a friend | print | permalink

Author: Stephen D. Hans

A minimum wage increase of $8.75 to $9.00 went into effect in New York on December 31, 2015. For employers, it obviously means you must pay higher wages to all employees who were receiving minimum wages. However, that’s not the only factor you must consider.

The New York Department of Labor released new posting required for the wage increase on December 31, 2015. GovDocs offers the posting as part of its New York Post Compliance Package

In fact, businesses must display posters not just for minimum wages. Other employment laws also require postings. Here is the complete list:

  • Minimum Wage Information
  • Discrimination
  • Laws Governing the Employment of Minors (Child Labor)
  • Time Allowed To Vote
  • Fringe Benefits
  • Deduction from Wages
  • Tip Appropriation
  • No Smoking
  • New York Correction Law Article 23-A

New York Correction Law Article 23-A is NY Law that prohibits employers from discriminating against persons who were convicted of one or more criminal offenses. You may not be aware of it, but if you deny employment to someone who was previously convicted of a crime, you must provide the person with a written statement at the time you deny the employment or license.

Let’s face it. In our society today, business owners must know about and comply with many laws and regulations just in order to run a business. It’s vital for you to address legal factors and work with an employment law attorney who can help you put measures in place. Failing to adhere to the law and stay in compliance with regulations can result in heavy fines.

At Stephen Hans & Associates, our attorneys offer human resources consulting to keep you apprised of legal and regulatory requirements. We can explain the recent wage law changes and how it affects your business. Let us help you prevent lawsuits and regulatory hearings that threaten your business.

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Million Dollar Legal Mistakes by a Billion Dollar Company
by cjleclaire
Dec 10, 2015 | 7061 views | 0 0 comments | 368 368 recommendations | email to a friend | print | permalink

by Stephen D. Hans | Dec 8, 2015 | Employment Defense Attorney

Even billion dollar companies can allow legal mistakes to occur and have it cost them millions of dollars. Such appears to be the case when executives at Giorgio Armani allegedly discriminated against the company’s own general counsel, Fabio Silva.

The NY Daily News reported that Silva began working as general counsel for Armani in October of 2014. The lawsuit brought by Silva claims that Armani’s CFO Thomas Chan repeatedly told Silva he didn’t trust Mexicans during a time that they were working on a deal with a Mexican vendor. A co-worker let Chan know that Silva was Mexican. After that, Silva says that Chan subjected him to “heightened scrutiny and unfounded criticism.” Silva filed a complaint with the company’s COO, Giorgio Fomari. However, Fomari took no actions to correct the discrimination except to tell Silva he erred by saying something in writing. When Silva asked for a raise in April based on an outstanding performance review, he says Fomari wouldn’t give him a raise because of the discrimination complaint. Of course, this is retaliation.

Later on, Silva told his bosses that he had been diagnosed with colon cancer, but explained it was operable, and minutes afterward, the company’s HR rep fired him. She said she thought it would be a good time to tell him that the company was terminating him. The reason given was that they didn’t feel they could trust him. Silva is a highly respected and experienced attorney in the fashion industry. He filed a $75 million lawsuit against Armani, which is being heard by the Manhattan Supreme Court.

Situations like this can be easily avoided when companies make it standard policy to train their employees (including top executives) in equal opportunity employment practices.

Our attorneys at Stephen Hans & Associates work with businesses to protect their rights and draw on more than two decades of legal experience. We help companies deal with employment issues and find resolutions to avoid full-blown lawsuits.
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Restaurant Industry: Several Restaurants Refusing to Serve Cops
by cjleclaire
Dec 01, 2015 | 7000 views | 1 1 comments | 342 342 recommendations | email to a friend | print | permalink

When does a restaurant have the right to refuse service?

Recently, several restaurants refused to serve police officers. According to a New York Times article a Dunkin’ Donuts worker in West Hartford, Connecticut announced to a police officer standing in the back of the line that they didn’t serve cops there. It turned out to be a poor joke, and the manager and employee ran after the officer to apologize and offer him a free meal. However, an Arby’s manager in Pembroke Pines, Florida was fired after telling a police officer that an employee refused to serve him (also a poor joke). The article goes on to give other similar instances along with survey data that shows public views of the police are the lowest in 22 years. This is a result of the Black Lives Matter movement that sprang out of instances of police brutality.

From the viewpoint of discrimination, this is an interesting development. The number of protected classes have grown since Title VII of the Civil Rights Act was passed in 1964. We now have laws that prevent discrimination based on gender, age, disability, sexual orientation, military and other classifications.

The restaurant industry’s right to refuse service cannot be based on the fact that an individual belongs to any of these protected classes. Otherwise the owner may have discrimination lawsuits to deal with. The purpose of this right is for valid reasons, such as making individuals leave who are causing trouble, being disruptive, are improperly dressed (black tie dinners, no shoes or shirts, etc.) or who are not following the restaurant’s rules.

As an employer, if you have questions about your rights to refuse service, Stephen Hans & Associates will be glad to answer your questions. Our firm represents small business owners in discrimination, employment issues and labor disputes in regulatory actions.

Queens & New York City Employment Defense Attorney

 
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Are Your Wages Equal for Men and Women?
by cjleclaire
Nov 19, 2015 | 5248 views | 0 0 comments | 220 220 recommendations | email to a friend | print | permalink

Queens & New York City Employment Defense Attorneys

Situations arise where an employee leaves and you must once hire or promote someone to fill their position. Based on skills, experience and the job description, employers offer a salary or wage for work being done as part of a position’s duties. As an employer, it is worth your time to review whether you provide equal pay to men and women who perform the same or comparable job functions.

Recently, the Equal Employment Opportunity Commission (EEOC) brought a lawsuit against an oil company for sex based discrimination and paying a female employee a lower salary than her male predecessor.

The details of the case are that SOCI Petroleum/Santmyer Oil Company, Inc. (SOCI) hired Lori Bowerstock to work in human resources in 2006 in Wooster, Ohio. When the current human resources manager’s employment ended in 2009, Bowerstock assumed his function and began performing his functions. The EEOC’s complaint alleges that the company allowed derogatory, sex-based comments against women in general and devalued their work performances and capabilities. SOCI paid Bowerstock less compensation than her male predecessor for doing the same work.

In this case, the EEOC alleges the company violated the Equal Pay Act of 1964 and Title VII of the Civil Rights Act The EEOC first sought to reach a pre-litigation settlement through its administrative conciliation process. After failing to reach a settlement, the EEOC is now pursuing permanent injunctive relief to prevent SOCI from discriminating through unequal pay to women, to enforce equal employment opportunities for women, and to obtain lost wages, compensatory and punitive damages.

Working closely with an experienced employment litigation lawyer can help you put sound policies in place that avoid discrimination and unequal pay issues. Our attorneys at Stephen Hans & Associates have successfully defended employers’ rights in litigation and settlement negotiations for more than two decades.

 

 
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What You Should Know About Weighing Age and Ability When Hiring
by cjleclaire
Nov 04, 2015 | 5663 views | 0 0 comments | 170 170 recommendations | email to a friend | print | permalink

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.

 





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New Non-Tipping Policy – Legal Considerations
by cjleclaire
Oct 27, 2015 | 5913 views | 0 0 comments | 218 218 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 | 6111 views | 0 0 comments | 170 170 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 | 6933 views | 0 0 comments | 210 210 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 | 7250 views | 0 0 comments | 202 202 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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