What Employers Should Know about Paternity Leaves

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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EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues

Employers should be aware of the Pregnancy Discrimination Act (PDA), which makes it illegal to discriminate against an employee or job applicant based on pregnancy, childbirth or a related medical condition. However, some issues under the PDA were unclear and confusing for employers.

The Equal Employment Opportunity Commission (EEOC) recently released an Enforcement Guidance to clarify these issues:

  • The extension of PDA protection to employees who are not currently pregnant but intend to become pregnant. For example, demotion based on an employee’s expressed intention to become pregnant is pregnancy discrimination.
  • Employees or applicants are protected against pregnancy discrimination based on past pregnancies. Terminating an employee after returning from a pregnancy leave, when the pregnancy is the reason for termination is illegal. Termination of a worker within close proximity of returning to work in combination with a reason that is not credible can provide grounds for employees to bring pregnancy discrimination lawsuits.
  • Medical conditions related to pregnancy were clarified. Examples given of pregnancy related medical conditions were back pain, preeclampsia, gestational diabetes, complications requiring bed rest and after-effects of a delivery.

The Guidance recommends that if a pregnant worker needs to do light work, the employer is required under the PDA to provide it, in the same way employers would for any other worker who requires lighter work duties temporarily because of a medical condition.

Even so, this issue involving lighter work still awaits judicial ruling. In the case Young v. United Parcel Service Inc. in July 2014, an employee sued for pregnancy discrimination when UPS would not allow her to do lighter work after a doctor ordered it. The judge at the federal appeals level ruled against her. The U.S. Supreme Court has agreed to hear her appeal and how it will rule remains to be seen.

If you have questions about dealing with pregnant employees, consult with an experienced employment defense law attorney. At Stephen Hans & Associates our attorneys focus our practice on employment law and can provide legal advice, assistance with employment policies and representation for business owners in cases involving disputed employment or labor law issues.

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U.S. Supreme Court Finds that NLRB Appointments Were Unconstitutional

For small to mid-sized business owners who deal with unionization, it may be of interest to know that the U.S. Supreme Court recently declared President Obama’s National Labor Relations Board (NLRB) appointments were unconstitutional.

On June 26, 2014, the U.S. Supreme Court ruled in the case National Labor Relations Board vs. Noel Canning. The case addressed the installation of three NLRB members in 2012 while the U.S. Senate was in recess for three days. In the case, brought by a Pepsi-Cola distributor, Noel Canning, the plaintiff argued that a three day adjournment was not long enough to trigger the Recess Appointments Clause. The Recess Appointments Clause gives the President the power to fill all vacancies that occur during the Senate’s recess. In general, members serving on the NLRB require Senate confirmation before assuming their positions. The Recess Appointments Clause is an exception to this rule. The Senate previously had declined to approve the President’s proposed nominees and went into recess. The Supreme Court decided that the President exceeded his authority in appointing the members during the short recess.

Consequently, because the NRLB appointments were found to be invalid, hundreds of cases heard by the NRLB were also not valid. The Board was without a quorum to render its decisions.

If you had a case that went before the NRLB during this time period, it must be heard again.

According to a Fox News article, changes in rules that the NLRB implemented regarding how employees choose or decline union representation made it easier for unions to win unionization elections. The Supreme Court ruling and new NLRB appointments may open the door for opportunites that lead to greater security for employers.

Stephan Hans & Associates is a long-established employment litigation firm located in Long Island City, Queens that represents employers in labor and employment law matters.

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Highest New York Court Overturns Ban on Large Sized Sodas

Stephen D. Hans photoAwhile back we published a blog post that discussed New York City’s ban on soda sizes that were 16 ounces or greater. Former Mayor, Michael Bloomberg proposed the ban to the City Council and sent it to the Board of Health, which unanimously approved the ban in September 2012.

However, the ban subsequently became subject to litigation when theaters, restaurant owners and beverage companies brought lawsuits. The lawsuits went through several judicial levels before arriving at the NY State Supreme Court. According to Bloomberg News, the New York State Supreme Court recently struck down the rule, adjudicating that it was “arbitrary and capricious.”

The highest court in the state found that the only body with authority to engage in policy-making was the state legislature and it had not legislated such a rule. The Board of Health overstepped its authority, which is to regulate and not engage in policy-making. It derives its authority from the state legislature, not the New York City Council.

In terms of public survey, Rasmussen Reports indicated that 63 percent of adults surveyed opposed the local soda ban and 19 percent supported it and 19 percent were undecided.

The New York Post reported on the issue as well and stated that after New York City passed the ban, beverage companies began releasing smaller cans of beverages that were 7.5 ounces to give the public a greater freedom of choice.

Stephan Hans & Associates is a long-established employment litigation firm located in Long Island City, Queens that has served clients for more than three decades in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.


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The Annual Pay Notice Requirement of the New York Wage Theft Prevention Act Could Be Close to Ending

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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New York City Sick Leave Pay for Employees

Author: Stephen D. Hans & Associates


As time goes along, New York City employers become subject to more and more regulations. In April, 2014, New York City’s Sick Pay Leave Act for employees went into effect for certain employers. You should know that employees can begin taking sick leave days they have accrued starting on July 30, 2014.

Complying with the Sick Pay Leave Act includes the doing the following:

  • If you are an employer with five or more employees who work more than 80 hours per calendar year you must provide these employees with paid sick days
  • If you are an employer with four or less employees, you must provide employees with unpaid sick days
  • Employees working more than 80 calendar days a year, get one hour of paid sick leave for every 30 hours they worked, up to 40 hours in one calendar year (which for many people is one work week)
  • If you employ one or more domestic workers who have worked for you at least a year and worked more than 80 hours per calendar year, you must provide your employees with two days of paid sick leave

Employees can use their sick days to care for themselves if they are sick or to care for a sick family member. Family members are considered children, grandchildren, spouses, domestic partners, parents, siblings, or the parent of a spouse or domestic partner.

As an employer, you cannot terminate an employee for taking a sick leave day.

If you have questions about employment law consult with one of our employment law attorneys at Stephen Hans & Associates. We can help you deal with employment issues and put business policies in place that protect your rights and help you comply with regulations.

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Where to Draw the Line for Privacy Regarding Social Media

Social media is a new legal frontier and laws are pending or being passed to keep pace with this advance in technology. As an employer, is it legal to ask employees or job applicants for their social media user names and passwords?

The NY legislature proposed a bill that addresses this question. As of May, 2014, A.B. 433 is sitting with the Senate Committee on Labor, and if passed, the bill would prohibit employers from asking employees or job applicants for their social media passwords.

Despite the fact no NY statute currently prohibits employers from asking for social media passwords, the New York State Bar Association advises employers against it. The NYBA cites various case rulings that favored employees’ privacy rights over employers’ attempts to discover possible defamation or trade secrets violations.

Here are some cases in point:

  • Pietrylo v. Hillstone Restaurant Group (2009). After requesting Pietrylo’s login username and password, the manager at Hillstone Restaurant repeatedly accessed her MySpace chat room accounts. Pietrylo felt her job was in jeopardy if she refused to provide the login information, and the court viewed the employer’s actions as coerced authorization or authorization “provided under pressure.” Also, because MySpace makes it clearly known that the site is private and only gives access to invited members, the court decided the employer’s actions violated public policy. It ruled the defendant unlawfully accessed the plaintiff’s social media account.
  • Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC (2008). The District Court for the Southern District of New York addressed the issue of whether an employer accessed the defendant’s private Gmails and Hotmail emails without authorization. The defendant had saved his logins on a company computer. After the employee left the company and set up a competing business, the employer brought an injunction against the employee claiming stolen trade secrets and proprietary information. The plaintiff argued that saving private login information on a company computer gave implied consent. The court disagreed and found that the employer’s actions violated the Stored Communications Act (SCA), a federal law prohibiting unauthorized access to facilities that provide electronic communications services.

You can avoid disputes over social media access and other issues that put your business at risk by working closely with an employment law attorney. For more than three decades, Stephen Hans & Associates has served New York business owners through employment and labor law representation.

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