Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
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New York City’s Ban on Discrimination for Sexual and Reproductive Health Decisions
by cjleclaire
Jul 12, 2019 | 2340 views | 0 0 comments | 663 663 recommendations | email to a friend | print | permalink

What Does This New Protected Class Mean for NYC Employers?

New York City passed legislation that bans discrimination for sexual and reproductive health decisions.

While New York City has some of the United States’ most expansive human rights laws, this law gave specific rights, creating new protected class regarding “sexual and reproductive health decisions.” The law went into effect in New York City on May 20, 2019.

This new protected class joined the already existing anti-discrimination protected classes of New York City Human Rights Law. Protected classes include age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, gender identity or expression, sexual orientation and alienage or citizenship status.

What Does the New Protected Category Mean in Everyday Language?

It means that employers are subject to discrimination litigation if they make decisions in hiring, promoting or firing employees based on this new class. Examples would be deciding to fire an employee because she got an abortion, or deciding not to hire an employee based on the employee’s decision whether to use or not use birth control.

According to an article in The National Law Review, the following are examples of services related to sexual and reproductive health decisions:

  • Fertility-related medical procedures
  • Sexually transmitted disease prevention, testing and treatment
  • Family planning services and counseling
  • Use of birth control drugs and supplies
  • Emergency contraception
  • Sterilization procedures
  • Pregnancy testing
  • Abortion

What Actions Should Employers Take?

As an employer, you should revise your handbooks and employment policies by adding the protected category of “sexual and reproductive health decisions.” You should also train your managers, employees and any HR personnel on this new legal change.

The repercussions of a lawsuit based on this protected class could result in having to hire or reinstate an employee, compensate for back pay, pay compensatory damages (and in extreme cases punitive damages), pay civil penalties and cover the employee’s attorney’s fees and costs.

Our attorneys at Stephen Hans & Associates represent employers in employment related issues and can help you protect your rights.

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Why Working Off the Clock Can Be a Liability
by cjleclaire
Jul 12, 2019 | 2131 views | 0 0 comments | 229 229 recommendations | email to a friend | print | permalink

Working off the clock can be problematic for an employer. One reason is that time clocks or time sheets exist to document an employee’s work hours. When workers do not punch in, the book keeping of hours worked becomes nebulous. However, aside from that, employees can be subject to wage and hour lawsuits, penalties and other additional expenses when they fail to pay employees for time worked.

What Is “Working Off the Clock”?

Working off the clock refers to work an employee does that is not paid or does not count toward the total number of weekly hours worked.

According to the U.S. Department of Labor, work that is done off the clock includes “all the time an employee must be on duty, on the employer’s premises or at any other prescribed place of work.”

Why Is Working Off the Clock Illegal?

The Fair Labor Standards Act (FLSA) establishes the law for wages and hours that employees work. The FLSA addresses overtime, minimum wage and various protections for most workers. Exceptions exist for overtime pay regarding certain administrative and professional employees in some industries, and also for executives, managers and commission based sales employees.

Most employees, those who are not exempt and work over 40 hours in a week, must receive overtime pay for the hours exceeding the 40-hour workweek.

An employee receiving an hourly wage must receive payment for all the work done, even when working extra hours on tasks that are not requested, but which the employer allows.

Examples that Qualify as Working Off the Clock

If you call employees outside of work or send them work related emails that they must answer, you would be encouraging unpaid work or work done “off the clock.”

If you allow your employees to come in early or stay late to finish their work tasks, you can run into problems as an employer. Perhaps your restaurant worker is cleaning up or your laborer is simply dropping off equipment at another site outside of work hours. Off-the-clock work includes employees who work outside of the scheduled hours, for example to get a worksite ready for the production day. Workers who correct errors in paperwork past the time they should’ve gone home also qualify as working off the clock. Even having an employee wait to receive an assignment, despite the fact the employee is not doing anything but waiting, qualifies as work time.

If you are unsure about whether your employees are working off the clock, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.

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What Is Fissuring in the Workplace?
by cjleclaire
Jul 02, 2019 | 5706 views | 0 0 comments | 710 710 recommendations | email to a friend | print | permalink

How Fissuring Is Changing the Work Environment

Fissuring in the workplace is a relatively new term. You may have heard about fissuring, a term coined by David Weil. He and Tanya Goldman in the article “Labor Standards, the Fissured Workplace and the On-Demand Economy” explain fissuring as follows:

It “means that in more and more workplaces, the employment relationship has been broken into pieces often shifted…to individuals who are treated as independent contractors.”

Other terms have become prevalent that also reflect this employment change. These are terms such as standard employment, non-standard employment, alternative work arrangements, independent contractors and contract employees.

The business models that typically accomplish fissuring use:

  • Temporary agencies
  • Labor brokers
  • Franchising
  • Licensing
  • Third-party management

What Does Fissuring Mean for Employers and Employees?

As stated by an article in The American Prospect, the workplace is undergoing a change, and fissure is what is happening to the U.S. workforce.

Back in the day, an employee worked for a company, received benefits, stayed with the company long-term and received a pension for retirement. The average worker often spent a lifetime working for the same company.

In an effort to reduce labor costs and also lasting ties to workers, companies have implemented a variety of employment strategies. Strategies include hiring through apps, employing temp workers and freelancers along with contracting out and in some cases, misclassifying employees.

Today, many people have two or three part-time jobs because main jobs are not available. Multiple part time jobs are necessary for them to make financial ends meet.

Yet, various wage changes have also emerged as a result of the fissured workplace. New York, New Jersey, California, Illinois, Maryland, Massachusetts and Connecticut have all enacted $15 minimum wage laws.

The History Behind the Wage Increases

Governor Cuomo of New York created a wage board and held hearings throughout New York. At the hearings, many fast-food workers testified that they couldn’t survive on the $8.25 minimum wage. The New York legislature enacted legislation to raise wages to $15 per hour. Subsequently, the New York City’s Taxi and Limousine Commission engaged in a similar action and raised wages to a minimum of $17.22 per hour for app -based drivers.

The newest emerging trend is for cities to create boards that help workers raise their pay. In this effort, the boards appear to be taking on the previous function of labor unions, which were known in the past for working to equalize pay.

As Bob Dylan sang back in the 1960s, “The Times, They Are a Changin’.“

At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.



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Hairstyle Discrimination in the Workplace
by cjleclaire
Jun 19, 2019 | 6697 views | 0 0 comments | 879 879 recommendations | email to a friend | print | permalink

Are Your Company Policies Compliant with Hairstyle Discrimination Law?

Hairstyle discrimination can be a form of racism in the workplace, according to NYC Human Rights Law. The NYC Human Rights Law “protects the rights of New Yorkers to maintain natural hair or hairstyles closely associated with their racial, ethnic, or cultural identities.”

In particular, hairstyle discrimination has been a form of anti-black racism. Hairstyle discrimination includes work policies that prohibit natural hairstyles associated with Black people. Examples include policies that ban locs, cornrows, twists, braids, Bantu knots, fades, Afros and the right to keep hair in an uncut or untrimmed state.

The NYC Commission on Human Rights issued a Legal Enforcement Guidance on Race Discrimination on the Basis of Hair in February 19, 2019 that addressed this issue.

Why Africans’ Hairstyles Are Protected

In some cases, the hairstyle may protect the health of the hair. Black hair is susceptible to loss and breakage and other medical conditions when the hair is subjected to tension. Individuals may suffer from skin and scalp damage when forced to straighten or relax their hair.

Hairstyles are also protected because individuals may wear a particular hairstyle for medical, religious, financial, personal or spiritual reasons.

Discriminatory targeting of Black children and adults for their hairstyles traces back to white slave trading days. At that time, the hairstyle was described as “dreadful.” The term later developed into “dreadlocks.”

Historical Anti-Discrimination Established at the Federal Level

The U.S. Department of Defense, which is the largest employer in the nation, enacted a ban on Black hairstyles in 2014. After Black service members protested, it later reversed its decision. In 2017, the Army lifted its ban on female soldiers wearing locs and removed the words “matted and unkempt” from its Black hairstyle description in the Army’s appearance regulations.

If you are unsure about how revise your appearance policies to avoid hairstyle discrimination, our attorneys at Stephen Hans & Associates are glad to provide legal advice.

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Earned Safe and Sick Time Act (ESSTA) Proposed Amendments
by cjleclaire
Jun 19, 2019 | 6302 views | 0 0 comments | 850 850 recommendations | email to a friend | print | permalink

Will NYC Add Personal Time and Expand Employee Protections?

The NYC Council is considering expanding ESSTA to include paid “personal time” for employees. Employees could use personal time for any reason. In addition, the employee would not have to document the reason for extended paid time off work.

If Passed, What Are the Provisions of the New Bill?

According to the National Law Review, employees and non-agency employed domestic workers, who work more than 80 hours in a calendar year, are eligible. They could earn one hour of personal time for every 30 hours worked, up to a maximum of 80 hours per year. Currently, ESSTA provides eligible employees with sick and safety time. Personal time would be additional.

An employer could count the unused 80 hours from a previous year for the current year, establishing the maximum time as already earned. However, additional time would not keep accruing year after year. ESSTA applies to employers with five or more employees, and the personal time would apply to employers of this size as well. The exception would be domestic workers who would be entitled to be paid for personal time for any size of employer.

What Employers Would Remain Unaffected by Personal Time?

Employers who already provide paid vacation or other paid time off would not have to pay for personal time. The only requirement is that the paid time off could be used in the same way and under the same conditions as personal time as covered by the new law.

Employees Would Have Expanded ESSTA Protections for Leave Use

Currently ESSTA allows employers to restrict the use of earned time for up to 120 days. However, under the new bill, employers could only restrict use for up to 90 days after the employee began employment.

Employees would have expanded protection against retaliation. To prove retaliation, employees would only have to show that the protected activity under ESSTA was a “motivating factor for adverse employment action.

Employers could receive penalties of up to $500 for each employee violation of the new law. All civil penalties could also apply on a per employee basis.

The NYC corporation counsel would have the right to investigate potential ESSTA violations and bring civil actions against employers to enforce the law.

Our attorneys at Stephen Hans & Associates will continue to stay abreast of further developments regarding this bill.

 

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Pre-Employment Testing for Marijuana and THC
by cjleclaire
Jun 03, 2019 | 6657 views | 0 0 comments | 2218 2218 recommendations | email to a friend | print | permalink

Drug Testing: New York City ‘s New Law

A ban on pre-employment testing for marijuana and THC recently became law in New York City. Pre-employment testing for marijuana and THC had long been an accepted standard in the employment process for certain industries. However, the legal landscape is changing. With the legalization of medical marijuana (and recreational marijuana in certain states), employers must re-evaluate certain company policies. New York is no exception.

On May 10, New York City passed a law that prohibited employers, labor organizations and employment agencies from conducting pre-employment testing for THC. THC is an active ingredient in marijuana and cannabis. The law goes into effect in one year, on May 10, 2020. This time interval provides NYC employers with time to prepare.

Industries Exempt from the Ban on Pre-Employment Testing for Marijuana and THC

According to JDSupra, industries that are safety-sensitive are not subject to the new law. Some of these industries include:

  • Police and law enforcement positions
  • Jobs requiring OSHA certification or construction safety training under New York state laws
  • Commercial driver’s license positions
  • Positions involved with the supervision or care of children, medical patients or vulnerable persons
  • Positions capable of significantly impacting the health or safety of employees or the public

Employees applying for state or federal jobs would still be subject to pre-employment drug testing. This would include state employees, truck drivers, pilots or contractors.

The Reason for the Ban on Pre-Employment Testing

Legislators considered the practice discriminatory for job applicants. Washington D.C. has also passed a law that prohibits employers from testing for marijuana before extending a job offer. The NYC law is more comprehensive because at no point prior to hiring may the prospective employer require the drug test.

However, once the company hires the applicant, then the individual is an employee. Companies can test for drugs if an employee appears to be under the influence of marijuana while working.

Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employers. We also represent business owners in employment litigation

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Should You Hire Interns?
by cjleclaire
May 23, 2019 | 3725 views | 0 0 comments | 837 837 recommendations | email to a friend | print | permalink

New York Laws that Govern Paid and Unpaid Interns

Some businesses hire interns or take on unpaid interns. This may seem like a good idea, and the costs of paying an intern are usually less than a regular worker. However, if taking on an unpaid intern, it is vital that the business owner understands the requirements.

NY law defines the rules that differentiate an employee from an unpaid intern.

If the employment relationship does not meet all the 11 criteria for an unpaid intern, then the employer must pay the intern based on minimum wage law.

NY Law for Hiring Unpaid Interns

Under New York Labor Law, the 11 criteria are as follows:

  1. The training must be similar to training in an educational program.
  2. The training is for the intern’s benefit. An example would be that the academic institution would give the student credit for the internship. Any benefit to the employer would be incidental.
  3. The intern does not replace regular workers and must work under close supervision. When interns receive the same supervision as other employees, it indicates an employee relationship and not an intern relationship.
  4. The employer does not gain an advantage from the intern’s work. In fact, the intern may sometimes actually impede the business’s operations.
  5. Once the internship concludes, the intern is not necessarily entitled to a job.
  6. The intern receives written notification about not being paid any wages.
  7. Persons who supervise the intern must be competent, knowledgeable and have adequate experience to meet the educational goals and requirements of the training program.
  8. Interns do not receive employee benefits (i.e. health and dental insurance, discounted or free goods or services or pension/retirement credit).
  9. The intern is receiving general training for the type of industry or business. The intern is not receiving training for a specific job with the employer who is offering the program.
  10. The employer uses a different screening process to acquire an unpaid intern than the process being used to hire employees. The process is based on an educational program and not a job.
  11. The advertisements, postings or solicitations for interns focus on education rather than employment.

If you have concerns about hiring interns, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in all types of employment related disputes.

 
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Biometrics and Employee Identification
by cjleclaire
May 20, 2019 | 4593 views | 0 0 comments | 766 766 recommendations | email to a friend | print | permalink


New York City Has Proposed a Biometrics Privacy Law

Biometrics is a new technology identification system being used by a variety of industries for various purposes. The primary means of identification include:

  • Fingerprints
  • Handprints
  • Retinal scans
  • Facial recognition
  • Iris scans

Businesses have started using biometrics for time clocks, for entry to secure areas and to login to phones and computers. To this degree, biometrics directly relates to employment situations.

States with Biometric Privacy Laws

While new technology is often uncharted territory from a legal perspective, three states have already adopted biometric privacy laws: Illinois, Texas and Washington. What the laws have in common is requiring consent before collecting biometric information. Illinois law is the most restrictive and requires employers to destroy the employee’s biometric information after a certain period of time if no longer employed by the business.

New York City Proposed Biometric Privacy Law

The National Law Review published an article in January 2019 that described the proposed bill under consideration by the New York City Council. The bill would require businesses to give notice to customers if they are collecting biometric identifier information, and it included a provision that if a person’s information was collected, retained, converted, shared or stored in violation of the law, the person had the right to take legal action.

Under the proposed NYC law, business owners using biometrics would be required to do the following:

  • Post a clear and conspicuous sign in plain language that explains the business is collecting, retaining, converting, storing and sharing biometric information.
  • Business must also make the following available online:
  • How long they are retaining or storing the information
  • The type of biometric information collected
  • Purpose of the collection
  • Privacy policy regarding biometric information
  • Whether they are sharing information with third parties

At this point, employers should be aware of the fact that a biometric privacy law has been proposed. Currently, NY State Labor Law Section 201-a states that unless allowed by law, no employer can require a person to be fingerprinted as a condition for securing employment or continued employment.

Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employment. We represent business owners in employment litigation matters.

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What is the Gender Expression Non-Discrimination Act (GENDA)?
by cjleclaire
May 20, 2019 | 3807 views | 0 0 comments | 675 675 recommendations | email to a friend | print | permalink

New York Passed GENDA in January, 2019

With the passage of GENDA, LGBTQ youth and transgender individuals have protection against discrimination and harassment based on New York’s Human Rights Law. In addition, criminal offenses based on gender identity will now fall under the state’s hate crimes law.

Facts About the New Law

GENDA also protects youth against “conversion therapy.” Conversion therapy is a practice that attempts to change a person’s sexual orientation from homosexual to bisexual or heterosexual through the use of psychological or spiritual interventions. Mental health professionals have long known that therapy directed toward changing gender orientation puts patients at risk in terms of their health.

The new law reinforces regulations put in place by the New York Governor Cuomo in 2016, which restricted the use of conversion therapy for minors.

The bill for Gender Expression Non-Discrimination Act (GENDA) had been debated in the state legislature for 16 years, passing the Assembly a number of times and only recently passing the Senate.

What Does GENDA Mean for Employers?

It makes gender identity or expression a protected class in the same way that race, ethnic origin, age, sex, religion, disability and other discrimination categories are protected classes. Discrimination based on gender identity or expression is illegal in the workplace.

It is important for employers to understand the legal definition of this protected class:

The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender. (Legislation.nysenate.gov)

As an employer, you should update your handbook, policies, and training materials to comply with the new law.

Note that inquiring about gender identity or expression during a job interview may also be viewed as discriminatory in the same way that questions about other protected classes are considered discrimination.

If you have concerns about GENDA, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in employment related disputes.

 
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Are Cashless Restaurants Legal?
by cjleclaire
Apr 24, 2019 | 8103 views | 0 0 comments | 384 384 recommendations | email to a friend | print | permalink

Could Going Cashless Result in Legal Problems?

Going cashless is an emerging trend that business owners and restaurateurs are discussing, contemplating and testing. Some businesses have already gone cashless.

What Are the Advantages of a Cashless System?

According to CBS News some ideas in favor include:

  • Safer establishments due to no cash on hand
  • Direct reporting into the accounting system
  • More taxes getting paid

What Businesses Have Been Considering Going Cashless?

Bluestone Lane Coffee along with the salad chain Sweetgreen, both located in Philadelphia have gone cashless. They comprise a total of six stores. Nationwide chains including Dos Toros, Dig Inn and Tender Greens no longer accept cash. Companies that have experimented with cashless stores include Starbucks, Milk Bar, Amazon, Walmart and Shake Shack.

Is a Cashless System Discriminatory?

Pew Research conducted a survey that found the following demographics rely on cash for almost all of their purchases:

  • 34% of African Americans
  • 17% of Hispanics
  • 29% of people earning less than $30,000 a year

Are There States or Cities that Have Passed Laws Banning Cashless Restaurants?

Restaurant Business reported that the city of Philadelphia passed a law, becoming the first city in the U.S. to ban cashless systems for local restaurants and businesses. The law goes into effect July 1, 2019.

Massachusetts also banned restaurants and other retail businesses from refusing to accept cash payments. New Jersey recently passed a law, on March 18, 2019, that required businesses to accept cash. The law goes into effect immediately, and businesses face a $2,500 fine for the first offense and a $5,000 fine for the second offense.

Lawmakers in New York City are currently working to pass a bill that will prohibit retail businesses from refusing cash payments.

Is suing a business for going cashless potentially a new form of discrimination lawsuit?

While no lawsuits of this type have been reported in the mainstream media, media outlets are publishing articles arguing that the practice is discriminatory.

If you are considering making the change, it is wise to consult with an attorney and seek legal advice.

At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.

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