NYC Employment Law — Pre-tax Transit Benefits

As employers, sometimes it is difficult to keep with the employment law changes, which is why you should consult periodically with an employment defense lawyer and stay apprised of new laws.

At the end of October 2014, New York City Mayor Bill de Blasio signed the Affordable Transit Act into law. Under the new law, NYC companies with 20 or more full-time employees must offer their employees pre-tax transit benefits. The new act follows the limits already established by the IRS, which allows a $130 pre-tax benefit that can be deducted from salaries for mass transit expenses. Advantages the new law offer for employers and employees are:
 Employees can opt into the new program and save over $400 a year on Metro Card expenses
 Employers save more than $100 a year per employee in tax liability
 An estimated 450,000 New Yorkers not currently offered pre-tax transit benefits now have access to them.

The new law goes into effect on January 1, 2016. Employers violating the law are subject to civil penalties but have 90 days to correct a violation before having the penalty imposed. Also businesses have a grace period until July 1, 2016 to adjust to the law and are not subject to penalties occurring prior to that date.

The intent of the new law is to make mass transit more affordable for New Yorkers, and it is also an initiative aligned with deal with climate changes.

Stay on top of legal changes by consulting with skilled lawyers. Our employment defense attorneys at Stephen Hans & Associates offer employers decades of legal experience that helps protect their rights along with their bottom lines.

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Wage and Hour Regulation Pitfalls

Business owners can get themselves into trouble when not understanding wage and hours laws. What appears to be a bright idea that cuts corners and saves money is sometimes a violation that leads to costly consequences.

The Fair Labor Standards Act (FLSA) establishes minimum wages and standards for overtime pay, and federal enforcement falls under the United States Department of Labor’s Wage and Hour Division.

Some common wage and hour pitfalls that a NY employment litigation lawyer can help you avoid include:

  • Voluntary work hours. Even though employees work off the clock voluntarily past their scheduled work hours, they must receive overtime compensation for that work done. Documenting all employee work is necessary to protect your rights as an employer, and any work exceeding 40 hours, even though not at the employer’s request, must be paid.
  • Travel time. When your employees travel as part of the job, calculating work time and overtime pay can be challenging. By consulting with an experienced employment litigation lawyer, you can receive legal advice about travel policies that comply with wage and hours law.
  • Employee misclassification. Business owners must classify employees based on their job duties and hourly wages or salaries. Salaried employees generally do not receive overtime pay, whereas hourly employees do. The types of duties the employees perform are the basis for classifying an employee and in particular whether the duties include management. Classifying an hourly employee as a manager when the employee has no management responsibilities is misclassification, which can be subject to disputes and claims or lawsuits. Our attorneys can help you ensure your employees’ classifications fall within the letter of the law.

Stephan Hans & Associates can help you comply with wage and hour laws for your business in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

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Are You Staying on Top of Regulations that Affect Your Restaurant?

A recent change in regulations predicted to arrive soon is that the Food and Drug Administration (FDA) will release a national menu labeling standard for chain restaurants. The standard will address calorie and nutritional information required on menus and at point of sale.

The National Restaurant Association (NRA) explains the relevance of the new standard for restaurant owners. The new menu label standard is covered by the 2010 health care law. This federal law takes priority over state and local rules and limits a restaurant’s legal liability. The new standard will only apply to chain restaurants operating in 20 or more locations under the same brand name. Restaurants the new standards apply to will have a six month grace period once the standard is officially released before having to comply.

The NRA has worked closely in collaboration with regulators to protect restaurant owners who are making good-faith efforts to comply so they are not subjected to penalties for human errors or reasonable fluctuations in ingredients or service sizes. Also, restaurants are allowed the freedom to present easily understood nutritional information to consumers in their own way.

Through a recent study conducted by Johns Hopkins University’s Department of Health Policy, the NRA indicates restaurant chains have reduced calories in many of their menu items, providing consumers with healthier choices. The study reviewed more than 60 large chain restaurants. Statistics showed a 12 percent drop in calories in 2013 menu items over 2012 menu items. These efforts on the part of restaurants show a willingness to comply with regulations that promote health and wellness, which is also the purpose in the upcoming menu standards for consumer nutritional information.

Do you have questions about meeting restaurant regulatory rules? Stephan Hans & Associates advises businesses and helps them implement regulations. The firm also represents employers in disputes with regulatory agencies. We are a well-established employment litigation firm located in Long Island City, Queens and our employment litigation experience dates back to 1979.

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What about Wellness Programs as Part of Health Coverage?

Today many companies offering health insurance also provide wellness programs, which are a preventative medicine approach to health. Today, 94 percent of employers with more than 400 employees and 63 percent of smaller companies offer some type of wellness program, according to the Kaiser Foundation.

In a recent case brought by the Equal Employment Opportunity Commission (EEOC) against Flambeau, Inc., a Wisconsin based company, the court found that the company was in violation of the Americans with Disabilities Act (ADA). Flambeau required employees to submit to biometric testing and a health assessment as part of its wellness program. Failure to do so resulted in canceling the employee’s medical insurance and unspecified disciplinary action.

The court had no disagreement with voluntary wellness programs, but the program Flambeau offered was anything but voluntary since it could result in penalizing an employee who refused testing and assessment by making that employee pay 100 percent for health coverage premium costs. Also, Flambeau’s biometric testing and assessment of disabilities were not job related and they violated the ADA, which prohibits making disability-related inquiries.

If you already have an existing wellness program or are considering incorporating one, it is wise to discuss the matter with your lawyer beforehand to ensure compliance with federal and state laws.

Stephan Hans & Associates has provided employers with effective legal advice and representation for more than thirty years. If your business is in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester, we are glad to provide you with trustworthy legal assistance.

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Sex Discrimination Cases from the 1960s to Today

Author: Stephen D. Hans

Employers first faced lawsuits for workplace sex discrimination during the 1960s after the enactment of the Civil Rights Act of 1964.

According to the Equal Employment Opportunity Commission (EEOC), flight attendants were among the first organized women’s groups to file lawsuits over sex discrimination. In the Lansdale v. United Air Lines, Inc. case, the pivotal issue was the company’s inequality in discharging female but not male employees after they married. In 1969, the district court ruled in favor of United, but the case ruling was reversed during appeal in 1971. In the Laffey v. Northwest Airlines, Inc. case, brought under Title VII of the Civil Rights Act and the Equal Pay Act, the court found for the plaintiff, ruling unequal treatment of males and females in hiring, pay, promotions, benefits and weight monitoring.

Since that time, sex discrimination remains an important issue employers must deal if they plan on successfully preventing lawsuits.

In a recent sexual harassment and retaliation case brought by the EEOC against EmCare, the jury awarded the plaintiffs $499,000. The findings addressed the fact the company’s Human Resources ignored the employees’ sexual harassment complaints regarding misconduct by the former AnesthesiaCare CEO. Two employees who filed complaints were fired within six hours of each other six weeks later, which the EEOC argued was retaliation.

Administrative resolutions are often the answer for employers to avoid costly outcomes like this one, along with Human Resources doing its part to enforce its company’s anti-discrimination policies.

Obtaining an experienced Queens, New York employment defense litigation lawyer at the onset of discrimination accusations can help you resolve issues quickly and protect your bottom line. Stephen Hans & Associates brings decades of experience to bear helping employers deal with discrimination issues and other employment disputes.

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Determining the More Subtle Instances of Age Discrimination

As an employer, it is important to consider what types of hiring process errors can lead to age discrimination lawsuits. Does the candidate need to overhear the hiring manager say the company wants to hire someone younger? Or hear the recruiter say someone is too old for the job? In most instances, age discrimination takes on a more subtle form than these two blatant examples of age discrimination.

A case in point is one where a complainant appealed to the Equal Employment Opportunity Commission (EEOC) after initially having his claim denied. Under the Age Discrimination in Employment Act, the applicant argued that his qualifications were superior to the other applicant’s qualifications and that his age was the only reason for hiring the other candidate. The position was for an industrial property management specialist position, entitled Contract Price/Analyst. The following are noteworthy arguments made during appeal:

  • The hiring manager said he did not know the applicant’s age, but the resume indicated the complainant was over the age of 40
  • The complainant had more experience as a contract price/cost analyst than the selectee
  • The complainant had an MBA while the selectee only had a BA in business administration
  • The complainant had a BA in accounting while the selectee had an MA in Education (an unrelated field for the job)
  • The complainant received many awards in his field and had significantly more overall relevant experience for the contract price/cost analyst position working as an auditor, financial examiner, contract price/analyst and industrial property management specialist
  • The selectee’s experience was largely in the field of education

As a result of the facts uncovered in this review, the EEOC determined that the non-selection of the complainant was unreasonable. The EEOC ordered that the complainant be offered the position or an equivalent position with appropriate back pay and benefits. The management official who erred in hiring was to be provided with appropriate training.

Stephan Hans & Associates provides effective legal advice and representation to employers in the New York City area, including Queens, Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

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What Is the Professional Exception to Employment At-Will Termination?

As described in our earlier blog article, there are exceptions to at-will employment terminations, making them unlawful, and termination based on discrimination is one of them. Another unlawful reason for termination under New York case law is the professional exception.

The New York State Bar published an article that explains the professional exception. In the case Wieder v. Skala, Wieder was a civil litigation attorney associated with the Skala law firm (defendant in the case). Wieder discovered that one of the firm’s partners made a mistake in a real estate transaction and covered it up. When he confronted the partner, the partner admitted he had “lied about the real estate transaction and later admitted in writing that he had committed several acts of legal malpractice and fraud and deceit.” Weidner reported the misconduct to the Appellate Division Disciplinary Committee as required by the Code of Professional Responsibility under the New York State Bar. The firm fired him for reporting the misconduct and Wieder sued for wrongful termination. The court ruled in favor of Wieder, finding that there was a professional exception to the at-will employment rule based on the New York Bar’s Code of Professional Responsibility. However, in cases that did not involve members of the New York Bar, the court did not find that a professional exception applied. It ruled that in these other types of cases, such instances are best left to the New York Legislature. The legislature has not passed any laws to clarify this point and subsequently, there is no legal recourse to being fired for reporting illegal activities in most employment situations.

If you are a business owner and have questions or unsure about whether an employee termination is legal, it is wise to consult with an experienced employment litigation lawyer.

Stephan Hans & Associates is a well-established employment litigation firm located in Long Island City, Queens and our employment litigation experience dates back to 1979.

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