Hairstyle Discrimination in the Workplace

Are Your Company Policies Compliant with Hairstyle Discrimination Law?

Hairstyle discrimination can be a form of racism in the workplace, according to NYC Human Rights Law. The NYC Human Rights Law “protects the rights of New Yorkers to maintain natural hair or hairstyles closely associated with their racial, ethnic, or cultural identities.”

In particular, hairstyle discrimination has been a form of anti-black racism. Hairstyle discrimination includes work policies that prohibit natural hairstyles associated with Black people. Examples include policies that ban locs, cornrows, twists, braids, Bantu knots, fades, Afros and the right to keep hair in an uncut or untrimmed state.

The NYC Commission on Human Rights issued a Legal Enforcement Guidance on Race Discrimination on the Basis of Hair in February 19, 2019 that addressed this issue.

Why Africans’ Hairstyles Are Protected

In some cases, the hairstyle may protect the health of the hair. Black hair is susceptible to loss and breakage and other medical conditions when the hair is subjected to tension. Individuals may suffer from skin and scalp damage when forced to straighten or relax their hair.

Hairstyles are also protected because individuals may wear a particular hairstyle for medical, religious, financial, personal or spiritual reasons.

Discriminatory targeting of Black children and adults for their hairstyles traces back to white slave trading days. At that time, the hairstyle was described as “dreadful.” The term later developed into “dreadlocks.”

Historical Anti-Discrimination Established at the Federal Level

The U.S. Department of Defense, which is the largest employer in the nation, enacted a ban on Black hairstyles in 2014. After Black service members protested, it later reversed its decision. In 2017, the Army lifted its ban on female soldiers wearing locs and removed the words “matted and unkempt” from its Black hairstyle description in the Army’s appearance regulations.

If you are unsure about how revise your appearance policies to avoid hairstyle discrimination, our attorneys at Stephen Hans & Associates are glad to provide legal advice.

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Employee Safety: Who Is Responsible?

The Pitfalls of Failing to Create a Safe Work Environment

Work safety issuesEmployers are responsible for maintaining a safe work environment. Workers compensation insurance pays for accident injuries. Based on New York law, all employers with at least one employee must carry workers compensation insurance. Unless a subcontractor or independent contractor is an independent enterprise, they must also be covered. Despite the fact that this insurance protects you as an employer, you must also comply with laws to provide a safe work environment.

Did You Know that OSHA Rules for Employee Safety Apply to Small Businesses?

Many small business owners have the misconception that OSHA (Occupational Safety and Health Administration) rules are only for large businesses. Yet, the OSH Act of 1970 makes it clear that all employers must furnish a place of employment that is free from recognized hazards that could cause serious injury or death.

Record Keeping for OSHA Log

OSHA requires that certain business keep a log of serious onsite injuries and illnesses. The log is called an OSHA 300 log.

Some types of industry employers are exempt and do not have to keep injury and illness records. However, all employers must report workplace incidents that cause fatality, in-patient hospitalization, and amputation or loss of an eye.

Employers must report work related fatalities to OSHA within eight hours of the incident. They must report inpatient hospitalization, amputation or eye loss with in 24 hours of the incident.

What Can Happen If You Fail to Comply or There Are OSHA Safety Violations?

Failing to report can result in a fine of $5,000 and possibly a fine as high as $7,000 if deemed necessary to deter similar reporting failures.

It is vital to document injuries and deaths and to take corrective measures immediately that would prevent anything like that from occurring again.

At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.

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ACA (Affordable Care Act) Requirements and Expanding Businesses

Do’s and Don’ts for ACA Compliance

The ACA (Affordable Care Act) requires that business owners with 50 or more employees provide their employees with healthcare benefits. To avoid this extra expense, some business owners try to keep their company under 50 employees. By doing so, they do not have to worry about ACA compliance.

Other employers may discover their company is naturally expanding at a rapid rate. There is no other option than to deal with the added ACA expense.

Why Classifying Some Workers as Independent Contractors May Not Be a Solution

While it is true that independent contractors do not count as employees, simply changing a worker’s classification does not legally make the individual an independent contractor. If the worker is doing the same job, in the same location and in the same manner as when working as an employee, changing the classification will not meet the legal standard for an independent contractor.

Independent Contractor Designation

The IRS (Internal Revenue Service) has established rules that employers must follow when designating an employee as an independent contractor.

Aside from paying for the employee’s healthcare when you have 50 or more employees, this status also determines whether you will pay withholding taxes, Social Security and Medicare taxes and overtime.

The IRS bases classification on a three-pronged rule:

  • Behavioral control. Does the employer control and direct the work performed by the employee? Instructions as to when and where to work, tools to use, where to purchase supplies and detailed directions about the work indicate an employer-employee relationship. Less detailed instructions indicate independent contractor behavior. On-the-job training is usually evidence that the worker is an employee. Evaluation systems may indicate either an employee or an independent contractor.
  • Financial control. When the company can direct and control the worker’s job through equipment investment, reimbursed expenses, and regular hourly, weekly or period-based wages, the worker is generally an employee. Independent contractors typically work by the project, are free to seek other work and have opportunities for profit or loss.
  • While contracts often define the work relationship, a contract that states the worker is an independent contractor is not sufficient for classification. Contracts that provide benefits, such as insurance, pension plans, vacation pay or sick leave establish an employee relationship. When the employer and worker expect the working relationship to last indefinitely, rather than by the project or for a certain time period, it indicates an employee relationship. If the worker’s services are integral to the company’s existence, it is an indication of an employee relationship.

If you are unsure about how to deal with ACA compliance or about classifying workers as independent contractors, our attorneys at Stephen Hans & Associates are glad to provide legal advice.

 

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Are Cashless Restaurants Legal?

Could Going Cashless Result in Legal Problems?

Going cashless is an emerging trend that business owners and restaurateurs are discussing, contemplating and testing. Some businesses have already gone cashless.

What Are the Advantages of a Cashless System?

According to CBS News some ideas in favor include:

  • Safer establishments due to no cash on hand
  • Direct reporting into the accounting system
  • More taxes getting paid

What Businesses Have Been Considering Going Cashless?

Bluestone Lane Coffee along with the salad chain Sweetgreen, both located in Philadelphia have gone cashless. They comprise a total of six stores. Nationwide chains including Dos Toros, Dig Inn and Tender Greens no longer accept cash. Companies that have experimented with cashless stores include Starbucks, Milk Bar, Amazon, Walmart and Shake Shack.

Is a Cashless System Discriminatory?

Pew Research conducted a survey that found the following demographics rely on cash for almost all of their purchases:

  • 34% of African Americans
  • 17% of Hispanics
  • 29% of people earning less than $30,000 a year

Are There States or Cities that Have Passed Laws Banning Cashless Restaurants?

Restaurant Business reported that the city of Philadelphia passed a law, becoming the first city in the U.S. to ban cashless systems for local restaurants and businesses. The law goes into effect July 1, 2019.

Massachusetts also banned restaurants and other retail businesses from refusing to accept cash payments. New Jersey recently passed a law, on March 18, 2019, that required businesses to accept cash. The law goes into effect immediately, and businesses face a $2,500 fine for the first offense and a $5,000 fine for the second offense.

Lawmakers in New York City are currently working to pass a bill that will prohibit retail businesses from refusing cash payments.

Is suing a business for going cashless potentially a new form of discrimination lawsuit?

While no lawsuits of this type have been reported in the mainstream media, media outlets are publishing articles arguing that the practice is discriminatory.

If you are considering making the change, it is wise to consult with an attorney and seek legal advice.

At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.

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Facebook Settles Discrimination Lawsuits

Facebook Advertising Algorithms Allowed Advertisers to Discriminate

Facebook Settles Discrimination Lawsuits In November of 2018, we wrote a blog about allegations that Facebook faced in ad discrimination lawsuits against women.

After 18 months of negotiations, Facebook recently reached a settlement that included paying $5 million. According to USA Today, Facebook primarily derives its income from advertising, which comprises most of the $56 billion in revenue earned last year. Their settlement incorporated provisions for aggressive oversight and their commitment to removing categories from the Facebook platform that enabled advertisers to discriminate based on protected classes.

Not only must Facebook deal with lawsuits, it also must deal with investigations by government entities. The State of Washington conducted an investigation of its ad platform that lasted 20 months, and the company settled this issue in July. The Department of Housing and Urban Development (HUD) is also conducting an investigation.

Ad Platform Allegations

The company’s ad platform contained targeting tools that advertisers could use to focus advertising on specific demographics. However, in areas such as jobs or housing and development, ad targeting enabled Facebook clients to discriminate and not send ads to certain groups of individuals. They could exclude individuals over the age of 40 (age discrimination) or those in particular ethnic or racial groups, such as African Americans, Hispanics and Jews and individuals of a particular sexual orientation.

Advertising that promoted credit cards, renting, housing or job interviews could exclude protected classes and deny them the same opportunities as other demographics.

Settlement Details

Although plaintiffs reached a settlement with Facebook in various lawsuits, they have continued to pursue legal action against the companies that initiated the discriminatory advertising.

Facebook’s settlement terms include having the National Fair Housing Alliance, the ACLU and the Communication Workers of America meet with the company twice yearly for three years to monitor progress. They will be able to identify issues by testing the ad platform. In addition, Facebook has agreed to study and evaluate potential prejudice that its algorithms have incorporated into targeting for ads.

Facebook has already eliminated targeting options for certain types of ads, which will no longer incorporate the option of targeting audiences based on age, genre or zip codes.

 

 

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Predictive Scheduling Changes No Longer Going into Effect

NY DOL Withdraws Predictive Scheduling Decision

Recently, we released a blog about predictive scheduling changes that the New York Department of Labor had proposed putting into effect. Their proposed changes would have required employers to pay employees for schedule changes that involved reporting to work, for an unscheduled shift (not scheduled 14 days in advance), a cancelled shift, and pay for being on call.

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NY DOL Withdraws Predictive Scheduling Decision

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New York DOL Amends Pay Rules for Unscheduled and Cancelled Shifts

Employers Must Pay Workers for Schedule Changes

Unscheduled and cancelled shifts will cost employers who will owe employees more wages based on predictive scheduling rules.

The New York Department of Labor (NYDOL) made amendments on predictive scheduling in the New York Codes, Rules and Regulations (NYCRR) that affect all New York State employers. (Note: the hospitality industry is subject to the Hospitality Wage Order previously in existence.)

Reporting to Work

If an employee reports to work for any day shift, the employer must pay the employee for at least four hours of work or for the number of hours in the regularly scheduled shift, whichever is less. This is referred to as call-in pay.

Unscheduled Shift

When an employee reports to a shift (based on employer’s request or permission) for work hours not scheduled 14 days in advance of the shift, the employee receives two hours of call-in pay.

Cancelled Shift

If the shift is cancelled within 14 days of being scheduled, the employer must pay the employee for at least two hours of call-in pay.

If the shift is cancelled within 72 hours in advance of the scheduled start of shift, the employer must pay the employee four hours of call-in pay.

On-call

An employee working on call (required availability for any work shift) must receive at least four hours of call-in pay.

Call for schedule

When an employee must be in contact with an employer within 72 hours of start of a shift to confirm whether to report to work, the employer must pay the employer for at least four hours of call-in pay.

How to Calculate Call-in Pay?

Employers must pay for actual attendance at the employee’s regular rate or the overtime rate if the work qualifies as overtime.

Employers should calculate other hours of call-in pay (not time worked or work performed) at the basic minimum hourly rate.

If you would like to ask our attorneys at Stephen Hans & Associates about NY wage and hour laws, we are glad to answer your questions. We provide employers with legal assistance for many different types of employment related issues.

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