ACA and the Problems with a 30 Hour Work Week

Author: Stephen D.Hans

Juggling compliance with the Affordable Care Act (ACA) and profitability is a problem many employers in the restaurant industry face today. Under the ACA, companies with 50 or more full-time employees must either pay for their full-time employees’ health care coverage or pay penalties. Penalties go into effect in 2015 or 2016, depending on company size.

For many years, the IRS code has defined a full-time employee as one who works 40 hours a week. In contrast, the ACA defines a full-time employee as an employee who works 30 hours a week.

The ACA outlines calculations for determining whether your company is an “applicable large employer” and figuring out how many full-time employees you have. It requires taking the total hours worked by all employees per month and dividing the total by 120. The 120 figure represents four 30 hour work weeks. For example, say total monthly work hours are 6,000. When divided by 120, you get 50 and that would mean you have 50 full-time employees, working 30 hour work weeks. However, what if some of your employees are working 40 hours a week? The calculation indicates you have 50 full-time workers, but you do not. Perhaps the rest of your employees work under 30 hours a week. The question then arises, which workers aside from those working 40 hours a week are entitled to health insurance coverage? The math does not align with 40 hour work weeks.

The new 30 hour work week requirement is problematic for many employers, causing them to restructure their work forces based on the full-time definition of 30 hours. It has created undesirable consequences for both employers and employees. To make ends meet, many employees are now forced to work two jobs: a 30 hour full-time job and an additional part time job. Employers are having to manage larger numbers of part-time workers which makes running a business more administratively complicated.

A coalition of restaurant, retail and employers in other industries have backed a legislative initiative to restore the 40 hour work week. The bill is S.1188 and it currently has passed the House of Representatives.

If you are confused about how to comply with the ACA in your business, you are not alone. Consult with an experienced employment litigation lawyer who can keep you apprised of current laws and help you comply with federal regulations.

For more than three decades, Stephan Hans & Associates has provided effective legal advice and representation to employers in the Queens & the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

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What Employers Should Understand about Disability Discrimination

Author: Stephen Hans

Business owners typically look from an employer’s perspective and fire employees who cannot do the job. For the most part, this line of reasoning is valid and especially if you have at-will employment, where the employer has the right to terminate an employee for any reason whatsoever. However, there are legal exceptions to the “whatsoever” conditions of at-will employment, and discrimination underpins the majority of these exceptions.

Firing an employee or not hiring an employee because of disability is a form of discrimination. The Americans with Disabilities Act requires employers to provide:

  • Equal opportunity in selecting, testing and hiring qualified applicants with disabilities
  • Job accommodation for applicants and workers with disabilities when such accommodations would not impose “undue hardship”
  • Equal opportunity in promotions and benefits

Certainly, accommodating a worker who has a disability is harder than managing an employee who has no disability. Even so, this fact does not constitute undue hardship.

The Equal Employment Opportunity Commission (EEOC) is bringing a lawsuit against Harrison Poultry and this lawsuit serves as a recent example of disability discrimination. The EEOC determined that Harrison Poultry discriminated against an employee with a disability who was on an approved leave. A physician diagnosed the employee with emphysema. Instead of granting an accommodation to the employee who requested a 12 day extension to his vacation so he could comply with doctor’s orders, the company fired him.

On behalf of the worker, the EEOC first attempted to settle with Harrison Poultry, but when unable to reach a settlement, the EEOC filed a lawsuit. The lawsuit seeks back pay, compensatory and punitive damages and injunctive relief to prevent future disability discrimination. The EEOC alleges that granting the extension would not have resulted in undue hardship on the company. In fact, as it turned out, the employee’s position was not filled again until three months later.

Litigation often makes time consuming demands on business owners. Understanding discrimination laws and consulting with an experienced employment litigation attorney can help employers avoid costly lawsuits and the lost production time involved with them. Stephen Hans & Associates brings decades of experience to every legal matter involving employment disputes.

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Importance of Educating Your Managers about Religious Discrimination Laws

Restaurant owners must ensure their managers understand employment laws and put policies in place that protect their business against discrimination lawsuits. Providing a non-hostile work environment to employees is an essential guarantee of their civil rights.

Recently, the Equal Opportunity Employment Commission (EEOC) brought a lawsuit against Food Lion, based on religious discrimination. Food Lion is a supermarket chain, headquartered in North Carolina that employs an estimated 73,000 workers. The store cited in the claim was located in Winston Salem, N.C. The manager hired an employee, Victaurius L. Bailey to work as a meat cutter. Bailey was also a Jehovah’s Witness minister and elder. Based on his faith, terms of his employment schedule allowed the employee to attend church services on Sundays and church related meetings on Thursday evenings. The store manager who hired him agreed not to schedule him for work on Sundays and Thursday evenings. When the company transferred Bailey to a different store in Winston Salem, the manager at the new store told him he did not see how it was possible to keep him if he could not work on Sundays. He was fired in 2011 due to his unavailability for Sunday work.

However, this decision to fire him violated Title VII of the Civil Rights Act, which requires employers to attempt to make reasonable accommodations based on an employee’s religious beliefs unless it causes undue hardship for the company. The EEOC sued on behalf of the worker and sought back pay, along with past and future monetary losses, compensatory damages, punitive damages and injunctive relief.

An experienced employment law attorney can help you avoid terminations that violate civil rights laws and can potentially result in discrimination cases. 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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How Can Employers Avoid Litigation with the EEOC?

The Equal Employment Opportunity Commission (EEOC) can bring litigation against employers on behalf of workers who file discrimination or harassment claims with the EEOC. Because the EEOC is selective about filing lawsuits it litigates only in a limited number of cases where the grievance is substantial and it deems a lawsuit is warranted. However, by working with an experienced employment lawyer, employers can receive effective legal guidance that often helps them settle and avoid litigation.

A recent case in point where the EEOC decided to litigate involved a restaurant in Fresno, California called Sal’s Mexican restaurant. In the lawsuit, the EEOC claimed allegations of sexual harassment and gender discrimination, asserting that a male supervisor sexually harassed a hostess in 2009. She was a teenager at the time and the supervisor’s harassment involved unwanted sexual advances, propositions, grabbing her body parts and attempting to kiss her. As a condition for employment the supervisor also made her give him hugs and back rubs. She complained to management repeatedly but management did not handle her complaints. The sexual harassment continued until her resignation from the hostess position in 2010.

Although the restaurant never admitted liability, the owner avoided litigation by entering into a two year conciliation agreement with the EEOC and former hostess. Actions taken in the conciliation included:

Hiring a third party employment consultant for assistance with drafting and implementing policies and procedures to address and prevent discrimination and sexual harassment in the workplace

Providing all employees with training about their rights and responsibilities regarding workplace discrimination and harassment

Monetary relief of $15,000
greeing to establish a record keeping system to track and monitor complaints

If you face discrimination or harassment allegations, consult with an experienced employment litigation attorney as soon as possible. For more than three decades, Stephan Hans & Associates has provided effective legal advice and representation to employers in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

 

Author: Stephen D. Hans-Queens NY Employment and Labor Law Attorney

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Recent Supreme Court Ruling on Homecare Union Dues Requirement

Author: Stephen D. Hans
Business Employment Attorney in Queens, NY

Many employers are interested to know about cases that affect the power of unions. For decades, unions have challenged employers through disputes or ongoing negotiations over employment terms and other issues.

This summer the U.S. Supreme Court’s ruling in a particular case may influence how unions operate nationwide, potentially limiting their ability to gather revenue from certain non-union members.

The U.S. Supreme Court ruled in the case Harris v. Quinn on June 30, by a narrow five to four decision, that the union could not deduct union fees from government checks that provided for homecare by personal assistants.

Factors in the Harris v. Quinn case involved the role of Medicaid recipients and the State of Illinois, which shared a joint role in determining the employment relationship of personal assistants (PAs). PAs are workers who provide homecare services for recipients in need of institutional care. The State compensates PAs, and customers propose a Service Plan that establishes guidelines for the PA’s duties. PAs were allowed under executive order to join a labor union that would engage in collective bargaining on their behalves under the Illinois Public Labor Relations Act. Service Employees International Union Healthcare Illinois & Indiana (SEIU-HII) became the exclusive union for rehabilitation program employees. The issue in the case was that the SEIU-HII required all workers who did not wish to join the union to pay a union fee. A group of Rehabilitation Program PA’s brought a class action lawsuit against the SEIU-HII, alleging that the required fee violated their First Amendment rights.

In many instances, the individuals providing homecare were relatives who had taken in a loved one to live with them so the loved one could avoid entering an institution.

If as an employer, you face issues with a union, it is wise to consult with an experienced employment litigation and labor law attorney. Since the founding of the firm in 1979, Stephen Hans & Associates has offered effective legal assistance to business owners facing labor law issues.

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An Intern’s Right to Sue for Discrimination in New York

Author: Stephen D. Hans & Associates

Stephen D. Hans photoLegal loopholes sometimes exist that preclude bringing a lawsuit because the letter of the law does not protect an individual’s rights. In the past, this may have been the case with interns, who because they did not receive any pay for their work could not be considered employees and therefore did not receive protection under employment discrimination laws.

However, this fact changed on July 22, 2014, when the Governor of New York signed into law an amendment providing civil rights protections for interns. Under this amendment to NY civil rights law, the definition of an intern is an individual who performs work for an employer for the purpose of training and:

  • The employee is not committed to hire the person performing the work at the conclusion of the training period
  • The employer and person performing the work agree that the person is not entitled to wages for the work performed
  • The work performed provides or supplements training that may enhance the intern’s employability, provides the intern with beneficial experience, does not displace regular employees and is performed under the close supervision of existing staff

Interns have the right to freedom from discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status or domestic violence victim status.

For employers, an integral aspect of running a successful business involves staying apprised of legal and regulatory changes. An experienced employment litigation attorney can work with you to ensure your business policies and operating procedures comply with new employment laws.

At Stephen Hans & Associates, our attorneys offer business owners valuable legal assistance and representation in cases involving disputed employment or labor law issues.

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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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