Reasonable Accommodations in the Workplace

What Does It Mean to Provide Reasonable Accommodations?

Making reasonable accommodations is a term you hear a lot in reference to the workplace and anti-discrimination laws. Employers whenever possible, should make accommodations for employees.

Definition and Examples

The DOL (Department of Labor) references the Americans with Disabilities Act (ADA) when it defines accommodations as “a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.” The adjustment enables a disabled individual to have an equal opportunity to do productive work.

Examples of accommodations include:

• Ramps
• Accessible restrooms
• Ergonomic workstations
• Job restructuring
• Part-time or modified work schedules
• Acquiring or modifying equipment
• Changing tests, training materials or policies
• Providing qualified readers or interpreters
• Ensuring computer software is accessible
• Providing screen reader software
• Videophones to facilitate communication for deaf workers
• Providing sign language interpreters or close captioning at meetings and events
• Making materials available in Braille or large print
• Modifying policy to allow a service animal in a business meeting
• Adjusting work schedules to allow employees with chronic medical conditions to go to medical appointments

Accommodation for Religion

Laws require employers to make reasonable accommodations for an employee’s religious practices or beliefs. The exception is when it would cause difficulty or expense for the employer. Allowing employees to trade shifts with another employee so they can go to their religious services is an example of reasonable accommodation.

Accommodation for Pregnancy

While pregnancy is not a disabled condition in the sense that the person is unwell, employers should make accommodations for pregnant workers. Examples would be adjusting work hours to a more modified schedule or adjusting the type of work so it is less strenuous. Assigning heavy lifting to other workers would be an example.

Do You Have Questions About Reasonable Accommodations?

At Stephen Hans & Associates, our attorneys are glad to answer your questions and provide legal advice. Years of experience have provided us with extensive knowledge regarding employment law, and we have represented numerous employers in matters involving workplace litigation.

Non-Disclosure Agreements: Their Proper Use

Types of Information Non-Disclosure Agreements Address

Non-disclosure agreements (NDA) allow companies to keep proprietary information out of their competitors’ hands. A high level of confidentiality is necessary for companies with innovative ideas. In some instances, the innovation is already making the company a profit. In other instances, a start-up company might need funding to launch its business. Having potential investors sign non-disclosure agreements protects their interests.

In addition to non-disclosure, an NDA prevents employees, clients, investors or other businesses from using proprietary information for themselves.

What Types of Information Can Non-Disclosure Agreements Include?

An NDA could apply for the following types of information:

• Financial information (when selling your company)
• Marketing information
• New technology
• Proprietary product information
• All of the above among employees

Reasons for Using Non-Disclosure Agreements with Employees

Businesses often use a unilateral agreement with employees. A unilateral agreement is a contract that applies to one party, in this case the employee. The employee agrees to keep confidential the information learned on the job. Types of confidential information may include business trade secrets, copyrighted information, technology or research being done.

Situations Where an NDA Does Not Apply

Based on New York law, as of January 1, 2020, non-disclosure agreements must contain additional stipulations for employees. An NDA must allow employees or potential employees to speak with the following:

• Law enforcement
• Equal Employment Opportunity Commission (EEOC)
• NY Division of Human Rights
• Local commission on human rights
• Attorney retained by the employee or potential employee

If an NDA does not contain language to this effect, courts will consider it null and unenforceable when it relates to discrimination complaints. (JD Supra)

When to Seek Legal Counsel

If concerns arise over a non-disclosure agreement, you should consult with an attorney. At Stephen Hans & Associates, our attorneys provide legal advice and representation to employers for all types of employment law issues. We have represented numerous employers over the years, and you can rely on our decades of experience.

What Is the Independent Contractor ABC Test for Status?

How to Qualify Workers as Independent Contractors

The Independent Contractor ABC Test was a method introduced by the California Supreme Court for determining whether a worker qualified for independent contractor status. You might ask—what does this have to do with New York since it relates to California law?

The answer is: the New York legislature has been discussing regulation of the gig economy. It is interested in developing a law similar to California’s ABC Test and perhaps even introducing collective bargaining law that would allow gig workers to unionize. (Reference: Employment Law Information Network)

What is the Independent Contractor ABC Test?

When the California Supreme Court ruled in April 2018, it established a precedent now known as the Dynamex ruling. The ruling introduced a three-pronged test (the ABC Test). The test determined whether a worker was an employee or independent contractor. Unless the worker met all of the following three conditions, the worker was determined to be an employee and not an independent contractor:

1. The worker must be free from the hirer’s control and direction regarding work performed, both under the contract and in fact.
2. Work must be performed outside the usual course of the hiring company’s business.
3. Usual work done by the worker must be customarily in an independently established trade, occupation or business of the same nature as the work being performed for the hiring entity.

Misclassified workers made employers liable for minimum wages and overtime along with meal and rest breaks. California has since that time extended the application of the law. It now also applies to workers’ compensation coverage, unemployment insurance, various benefits, paid sick days and family state leave.

(Reference: JD Supra)

When to Seek Legal Guidance

If questions or an employment dispute arise over worker classification, it is wise to seek legal guidance. At Stephen Hans & Associates, our attorneys advise employers regarding classification and other employment issues. You can rely on our skills and decades of experience, acquired from representing employers in employment litigation.

Employer Guidelines for Paying Employees

Ensuring Your Employees’ Pay Is Fair and Documented

Long Island City, Queens, NY Employment Defense Attorney

Paying employees is subject to discrimination laws and regulations that ensure fairness. As an employer, it is important to understand the laws and keep documentation that shows your compliance. Such preventative measures can help you establish good policies and also avoid disputes and lawsuits.

EEOC Guidelines for Paying Employees

The Equal Employment Opportunity Commission (EEOC) recommends you follow certain guidelines when determining what employees should make.

Managers

When training managers, it is vital to make sure they understand their responsibilities when determining pay. Also, they should keep detailed records of any pay decisions they make.

Pay Criteria

Employers should ensure equal pay for men and women who do the same job or work. Avoid discriminatory questions. For example, do not ask for prior salary information. Prior salary is not a valid justification for paying an employee a lesser salary when the employee is doing the same job as another employee. However, a lower salary based on fewer job-related qualifications would be justifiable.

Other pay differences that are justifiable include when pay is based on the following:

• Seniority system. Employers can justify paying higher wages to employees who have worked longer and therefore contributed more work to the company. Seniority systems may incorporate additional rights and benefits in addition to greater compensation.
• Merit system. Certain jobs incorporate bonuses or other pay to reward excellent performance.
• Incentive system. Incentive systems base pay on the quality or quantity of production. The system must be explained to employees, be applied equally for both sexes and have pre-determined factors.

Any of these systems are justifiable as long as there is no intention to discriminate based on race, color, religion, sex (including gender identity, sexual orientation and pregnancy), national origin, disability, age or genetic information.

When to Seek Legal Advice

If an employment dispute arises over pay, it is wise to seek legal counsel. At Stephen Hans & Associates, our attorneys advise employers regarding wages and other employment issues. We have extensive experience representing employers in employment litigation.

Visit our new office location:

Long Island City, Queens, NY Employment Defense Attorney

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The Fair Chance Act in New York

Criminal Background Checks for NY Job Applicants

The Fair Chance Act also carries the nickname “ban the box.” This moniker came from a slogan used by civil rights groups. They campaigned to have the check box for criminal record removed from job applications. The motivation behind the campaign was to provide ex-offenders with greater opportunities to find jobs.

Guidelines Employers Must Follow

Under the Fair Chance Act, most employers in New York cannot ask a job applicant whether they have a criminal record when conducting a job interview. Job applications also must not ask whether the applicant has a criminal record.

This prohibition allows applicants to go through job interviews and be evaluated on their own merit. In addition, ads for jobs cannot state that applicants must pass a background  check or include phrases such as “no criminal record” or “no felonies.”

At What Point Can an Employer Inquire About Criminal Records?

After an employer extends a conditional job offer to the applicant, the employer can do or have a background check done. The check includes finding out about any criminal record the applicant has.

What Are Employers’ Guidelines If a Criminal Background Exists?

The employer has the right to ask about:

• The arrest that occurred
• What the original charges were
• What circumstances led to conviction

Questions that an employer may not ask include questions about arrests that did not lead to convictions. They also may not ask about convictions that were:

• Sealed or expunged
• Reversed on appeal
• For violations, infractions or petty offenses
• For a youthful offender or juvenile delinquency finding
• Withdrawn upon completing a court program

What an Employer Must Do When Revoking a Job Offer

Employers must explain why the job offer was revoked. The NYC Commission on Human Rights provides a Fair Chance Act Notice that provides guidelines for employers.

Employers must also give a copy of the criminal record information they obtained, whether the record was from an agency or from an Internet search.

Our attorneys at Stephen Hans & Associates have decades of experience representing employers in work-related issues. We can assist you with questions about employment laws.

Social Media Used in Job Screening

What Employers Should Know About Using Social Media to Research Job Candidates

According to a 2018 CareerBuilder survey, 70 percent of employers are using social media to screen job candidates.

The Fair Consumer Credit Reporting Act (FCRA), Job Screening and Social Media

Screening results that are done by a third party, such as staffing agency or company that does background reports, constitute a consumer report. Social media information that is gathered by the agency and incorporated into the report is also subject to FCRA compliance.

Under the FCRA, consumers have the following rights (and this also applies to job applicants):

• To consent in writing to the background check or information being gathered
• To receive a description of the nature and scope of the background investigation that will be contained in the investigative report
• To dispute the information obtained

According to the Equal Employment Opportunity Commission (EEOC), when employers use a third party to screen job applicants or employees (a company that compiles background information), they must comply with the FCRA.

New York State and federal laws prohibit employers from basing hiring decisions on race, sex, religion, age, national origin, pregnancy and other legally protected classes.

Some EEOC Guidelines

You cannot use any of the information gathered to discriminate against an employer or job applicant. For this reason you should be particularly careful if basing your decision on problems that are more common to a particular protected class. For example, if you decided that a person with a disability would not be able to do a particular job, you should first give the applicant the opportunity to demonstrate whether they could perform the job or not.

If you decide to not hire based on the background information, you must provide the applicant with the following:

• A notice that includes a copy of the consumer report that you used to make the decision
• A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” (the company selling the report should have provided this to you)

At Stephen Hans & Associates, we can answer your questions and limit your liability by helping you ensure that your hiring process complies with standard practices.

Customer-Based Sexual Harassment of Employees

How You Can Protect Employees from Customer-Based Sexual Harassment?

Customer-based sexual harassment of employees can be a problem, and employers may not know what to do about it. It is vital to protect their employees’ rights. Also, employers could be at risk for liability, and they should consider taking responsible actions to protect their own rights.

The National Law Review featured an article that discussed what employers could do to protect against liability in situations where customers harass their employees. The same standards apply for sexual harassment of employees by customers as for sexual harassment by other employees.

What Actions Should Employers Take to Deal with Customer-Based Sexual Harassment of Employees?

The first step, and you must do this immediately, is to conduct an investigation of the alleged customer-based sexual harassment. According to Lapka v. Chertoff (7th Circuit, 2008),”Employers are liable for third-party harassment if they ‘unreasonably fail to take appropriate corrective action reasonably likely to prevent the misconduct from recurring.’ ”  In the Lapka case, the court stated, “The hallmark of [appropriate] corrective action is a prompt investigation.”

Steps to Take After Investigation

Based on the findings of their investigation, employers should take corrective action to prevent future harassment. They should also follow up to see whether their corrective actions have been effective.

Some corrective actions you can take may include:

• Issuing policies that cover and prohibit customer-based harassment
• Advise the customer of the complaint and tell them the behavior must cease immediately
• Prevent the customer from entering the company’s property
• Consider contacting the customer’s employer if a work relationship also exists between employers
• If it is to no disadvantage to the employee, change their work location so they are no longer exposed to the customer
• If necessary or appropriate, contact law enforcement for a protective order

Seek Legal Advice

If you believe you are legally at risk, it is wise to seek legal counsel for guidance. At Stephen Hans & Associates, our attorneys advise employers regarding work related issues. We also represent employers in employment litigation.

What Potential Penalties Do Employers Face in NY Discrimination Cases?

More Potential Penalties for Employers

Potential penalties for employers are likely to result from the amendments to the New York State Anti-Harassment Law. As the repercussions of the amendments become clearer to employers, more businesses will establish anti-discrimination work policies. Revised anti-harassment policies and stricter enforcement of them may help prevent lawsuits.

Potential Penalties that Employers Face Financially

The recent amendments enable an employee, who wins an employment discrimination case against an employer, to receive punitive damages.

What are punitive damages? A court can award punitive damages in a civil lawsuit to punish the defendant or deter the defendant’s future engagement in the same type of conduct. These are monetary amounts that the defendant must pay to the plaintiff and are also called exemplary damages. Courts award such damages in addition to other damages awarded in a case. In most cases, courts award punitive damages when the conduct is willful and intentional. (Cornell Law)

Recovery of Attorney’s Fees

Another potential monetary penalty that employers face if the plaintiff wins the case is a penalty of having to pay the plaintiff’s attorney’s fees. However, the same is not true if the employer (as the defendant) wins the case. The court will only have the employee pay the employer attorney’s fees if it can be proven that the action or proceeding filed by the employee was a frivolous lawsuit.

Typically, a frivolous lawsuit is one that the plaintiff files based on an intention to harass, disturb or annoy the other party. Lawsuits are also frivolous when the plaintiff knows that the likelihood of succeeding in court is very slight or non-existent.

(Reference: JD Supra)

Seek Legal Advice and Representation

Employers can often avoid disputes and lawsuits. At Stephen Hans & Associates, our attorneys advise employers about making changes in employment agreements and other employment related policies. We also represent employers in employment litigation.

First Lawsuit Under New York City’s Fair Workweek Law

Employers and Predictable Schedules in the Restaurant Industry

The Fair Workweek Law went into effect in New York City on November 26, 1917, and it affected employers in the fast food and retail industries. Under the law, employers had to provide employees with good faith work schedule estimates. They had to notify employees about how much time they were scheduled to work and when they would work. In other words, employers would provide predictable work schedules. They also had to provide the opportunity to work newly available shifts before they could hire new workers. Employers were obligated to offer existing employees the work first.

Under this law, employers must give workers their written work schedule at least 14 days prior to the date of the first shift in the schedule. A “clopening” shift is a term that applies to working two shifts over two days when the first shift ends and there are less than 11 hours between shifts. Employers must get the worker’s consent in writing for working a clopening shift and must pay them a $100 premium to work it.

More details about this law are available at the NYC Consumer Affairs Fast Food and Retail Workers page.

Chipotle Sued under Fair Workweek Law

In September 2019, New York City filed the first lawsuit for violations of the Fair Workweek Law. The city sued Chipotle, which has locations in Brooklyn and Manhattan. The restaurant chain has more than 2,500 locations nationwide. Workers at the Brooklyn locations filed dozens of complaints with the city regarding scheduling violations.

The city alleges that they violated the Fair Workweek Law with more than 30 employees. Furthermore, the city is seeking $1 million in penalties and restitution for the employees. In addition, the Department of Consumer and Worker Protection is investigating the 11 Manhattan restaurant locations for violations.

In response to the filings, the representative for Chipotle has stated that the company is working with the city, is committed to complying with all laws and that the lawsuit filing was unnecessary. (Reference: Fox Business News)

At Stephen Hans & Associates, we inform employers about new employment laws, offer legal advice and represent them in employment disputes.