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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Business Owners Should Seek Legal Advise When Dealing with ADA Issues

Author: Stephen D. Hans

The Americans with Disabilities Act (ADA) prohibits discrimination against employees with disabilities and requires that employers make reasonable accommodations for disabled workers. Deciding whether your accommodations are reasonable and whether you can terminate an employee who cannot fulfill the job description are matters you should address with an employment law attorney.

Within the past year, the Equal Employment Opportunity Commission (EEOC) has pursued a number of disability discrimination lawsuits. A case in point was a lawsuit brought by the EEOC against Beverage Distributors Company (BDC), a company located in Denver, Colorado.

Mike Sungala, a legally blind BDC employee had worked more than four years as a driver’s helper. The company eliminated the driver’s helper position because it decided to use contract laborers instead. Sungala subsequently applied for a night warehouse loader position, which consisted of loading kegs and cases of liquor onto trucks. The company offered him the position but required a medical examination prior to finalizing their decision to place him in that position. Subsequent to the medical examination the company withdrew the job offer, stating Sungala would be unable to do the work because of impaired eyesight. The EEOC argued Sungala could perform this work and filed a lawsuit on his behalf. The court found that BDC failed to prove there were no available comparable jobs Sungala was capable of performing and awarded him the following:

  • His entire back pay
  • Interest on the award (approximately $200,000)
  • Compensation for tax consequences Sungala will suffer due to receiving the judgment payment within one year
  • The same seniority and salary as a night warehouse loader holding this position for five years

Because BDC testimonies indicated a lack of knowledge of the ADA and because the company’s employee handbook failed to address ADA issues, the court ordered the company to obtain an outside consultant. The consultant must provide employee ADA training and assistance with revising company policies, job postings, notice posting and other compliance. The company has six months to comply with this court order.

You can avoid employee disputes by working closely with an experienced New York employment litigation attorney. Stephen Hans & Associates has assisted business clients in the Long Island City and New York area for more than 30 years.

 

 

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How Much Can Allegations of Discrimination Cost You?

Discrimination is a serious issue for employers. It can lead to disputes, lawsuits and even forced business sales. Forced business sale, substantial fines and the disgrace of being ousted from the National Basketball Association (NBA) are the challenges Clippers owner Donald Sterling faced over racial comments he made in a taped conversation with his girlfriend, V. Stiviano.

CNN reports this is not the first time discrimination has been a issue for Mr. Sterling. In an earlier lawsuit, Sterling paid millions to settle a federal case where African American and Hispanic claimants accused him of excluding them from his rental properties.

Initially, Sterling agreed to have his wife, Shelly Sterling, handle negotiations to sell the Clippers. Various bidders came forward, such as CEOs of Microsoft and Oracle, Oprah Winfrey and film producer, David Geffen. Recently Forbes magazine reported that after negotiations were in progress, Sterling recanted on the agreement to allow Shelly to negotiate the sale. Subsequently, his estranged wife Shelly had Sterling, who is 80 years old, declared mentally incapacitated, which allowed her to control the trust. Recently, she announced the sale of the team to former Microsoft CEO Steve Ballmer for $2 billion, which is quadruple the highest price ever paid for an NBA team.

It has been decades since Sterling bought the Clippers in 1981 for $13.5 million. The family will lose millions of dollars through capital gains taxes from the sale, which would have been avoided by having the team ownership pass through Sterling’s trust to his estate upon his death. A stepped up basis (current market value at time of death, not time of purchase) is used for estate valuations.

After the sale announcement, Mr. Sterling filed a lawsuit, suing the NBA for damages. However, Shelly Sterling informed parties that the Sterling trust will indemnify the NBA for lawsuits being brought by Sterling.

Needless to say, most business owners do not have millions at stake, but the importance of adhering to anti-discrimination policies does not lack emphasis through this example, even for billionaires.

Stephen Hans & Associates, an employment litigation law firm that has served business clients in the Long Island City and New York area since 1979.

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Wage and Hours Cases Setting Precedents for Tipped Employees

Restaurant owners are subject to numerous regulations they must comply with and as various cases are litigated, rulings establish new precedents that can change how the industry does business. Maintaining a viable restaurant in today’s world often requires due diligence from a legal perspective. The best way to stay on top of a changing legal landscape is to work closely with an employment law attorney who can keep you apprised.

Several recent cases are significant for the restaurant industry in how it manages tipped employees:

  • Matthew Scott v. Souper Salad is a class action case brought against LNC Ventures LLC, the owner of the Souper Salad chain, which has restaurants in 45 locations. The plaintiff alleged the company violated the Fair Labor Standards Act (FLSA) by requiring tipped employees to spend more than 20 percent of their time doing non-tipped employees’ work. Tasks included cleaning, stocking supplies, sorting silverware and food preparation. Tipped employees work for lower rates than minimum wage employees and the lawsuit alleged these tasks prevented them from making fair wages. The plaintiff sought compensation for all hours worked that were less than minimum wage, interest, liquidated and punitive damages and attorneys’ fees. The case settled out of court under a confidential agreement.
  • Flood et al. vs. Carlton Restaurants et al is a lawsuit brought by several employees against Carlson Restaurants Inc., which owns TGI Friday’s. The plaintiff is seeking certification as a class for TGI Friday’s workers nationwide. Some of the FLSA allegations claimed in the lawsuit are that restaurant managers require off-the-clock work before the restaurant opens and after it closes that is not reflected on employee time cards and records. In addition, the plaintiff alleges that in violation of the FLSA, tipped employees have to spend significant time performing tasks that do not allow them to earn tips, such as food preparation, stocking inventory and cleaning. The case is being tried in the New York Southern District Court.

If you are a business owner with questions or concerns about wage and hours issues, contact Stephen Hans & Associates, an employment litigation law firm that has served clients in the Long Island City and New York area since 1979.

 

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Best practices for avoiding employee lawsuits

Small businesses often feel like a family. You’re a small group, perhaps you socialize outside of work or have a company baseball team where everybody gets along great. The idea that one of your employees might sue you never enters your mind—until one of them does. And as far as the law is concerned, no matter how much you like your employees, they are still your employees. And the law has ‘protections’ in place for employees. When you run a small business, you need take steps to protect yourself and your company.

The ABCs of employee lawsuits

Most employee lawsuits stem from behavior on the job and by their very nature they can be difficult to defend. Discrimination, harassment and retaliation make up the lion’s share of suits filed against employers. The U.S. Equal Employment Opportunity Commission (EEOC) protects employees if they are a member of a “protected class” such as race, religion, gender, age, and disability. And what many employers do not know is that the EEOC can prosecute on behalf of claimants—which means that your employee may not even need to have an attorney in order to file a suit against you.

An employee must show four things in order to file a discrimination or harassment complaint with the EEOC:

That he/she is a member of a protected class
That he/she is qualified and performing in a satisfactory manner
That he/she suffered an adverse employment action because he/she was a member of a protected class.

The good news is that just because the court allows the suit to proceed doesn’t mean that you have lost. It simply means that you now have the burden to prove that the employment action you took was for legitimate business reasons. This is where documentation really counts, such as written warnings, performance reviews, time cards, evaluations, disciplinary actions, etc.

If you have an employee handbook which outlines your policies and procedures it will likely be your most valuable asset in an employee lawsuit. Your handbook should contain policies on:

  • Discrimination, harassment and retaliation
  • Any disciplinary processes
  • The procedure to take in making complaints

Such policies should also include an open door policy for reporting all complaints of discrimination, harassment and retaliation. It’s also wise to have employee training in your anti-discrimination policies.

Best practices for protecting against employee lawsuits

To help reduce and avoid preventable employee lawsuits, the following is a good guide to use:

Hire an experienced employment attorney. Even though you have a small business and you need to control costs, downloading template policies from the Internet will not protect you. An experienced attorney understands the federal, state, and local laws that apply to employment and he or she can keep you in compliance with these laws.

A comprehensive employee handbook. If your handbook does not cover discrimination, harassment and retaliation, then it is incomplete. Your attorney can help you draft a proper handbook that protects both you and your employees.

Know employment law. Even if you have an attorney, you would be well-advised to become familiar with employment laws yourself. Ignorance of the law is never an effective defense.

Document everything. Every action taken with employees should be documented. Just as you would keep comprehensive book keeping records, so should you keep comprehensive employee records. And since former employees may also have standing to sue you, it’s wise to maintain records for at least ten years.

Don’t assume you are too small a fish to fry. Small business owners can wrongly believe that since they have few assets no one will bother suing them. However, that type of assumption can land you in court. In some cases, you may only need an annual revenue of $500,000 and as few as four employees to be legally liable.

To avoid employee lawsuits talk to an experienced NY employment attorney

Unfortunately, employee lawsuits are not diminishing. Employees sue their employers and former employers in the hundreds of thousands every year. To ensure you are protected talk to an experienced NY business litigation attorney about your current situation. Your attorney can help you determine how best approach your employee dispute.

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