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

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.

 

 

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What Does the Gig Economy Mean for Employers?

What Is the Gig Economy?

The gig economy is a new term that describes work done by independent contractors, also called freelancers. A gig is a temporary job or project, and hence the name of “gig economy.”

Gig economy workers are not employees. They fall under the classification of independent contractors. This classification means employers do not have costs such as payroll taxes, social security payments, retirement income investments, healthcare benefits or unemployment benefits for the worker. Employers pay independent contractors by the project or by the hour, and there is no employment agreement for continuing to provide work once the job is done. Employers can terminate at will for no reason. The same is true for the contractor.

Forbes magazine predicted in 2018 “the gig economy will only keep growing in numbers.” By 2020, the estimate is that 50% of U.S. workers will be independent contractors.

How Employers Benefit from the Gig Economy

Employers benefit from gig economy relationships by having short-term projects done by short-term professionals. Permanent hires might otherwise be too expensive and hurt their bottom lines. This may be especially true for startup companies.

The Legal Landscape of the Gig Economy

The legal landscape may appear to be cut and dried. However, a recent New York case has shown that case laws are still emerging and employers can face challenges. Precedents determine where the legal lines are drawn.

In the Matter of the Claim of Luis A. Vega (Respondent), Postmates Inc., (Appellant) and Commissioner of Labor (Respondent), the Unemployment Insurance Appeal Board ruled that the company Postmates Inc. had to pay an independent contractor unemployment compensation.

Postmates Inc. operates an on-demand pickup and delivery service for local restaurants and retail stores. When Postmates terminated the work relationship, the worker applied for unemployment insurance benefits.

The crux of the case was whether or not an employer-employee relationship existed. While the Unemployment Appeals Board had ruled there was an employee relationship, the higher court reversed the decision. It remitted the case to the Unemployment Insurance Appeal Board to continue with the other proceedings not related to the Court’s ruling.

If you have employment related issues, our attorneys at Stephen Hans & Associates are glad to answer your questions, provide legal advice or representation. We have decades of experience representing employers in work-related issues.

 

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NY Anti-Sexual Harassment Training

Have You and Your Employees Done the NY Current Anti-Sexual Harassment Training?

NY State law requires that employers do Anti-Sexual Harassment training, based on a law signed into effect in 2018. Failing to do so can result in civil penalties of up to $250,000. Furthermore, if you have not done the training, your business may be subject to greater liability, should an employee file a sexual harassment lawsuit.

Sexual Harassment

How Does the Anti-Sexual Harassment Training Work?

If your business is located in NYC, the New York City Commission on Human rights provides an online training program that is compliant with the city and state’s requirements.

The training is not time-consuming or complicated. In fact, you can do the training online and it takes about 45 minutes to do.

Facts About the Training

At the end of the course, you will receive a certificate that you must save to your computer or laptop. If using a mobile device, you can take a screenshot, save or email the certificate.

This training is also accessible to users with disabilities. It includes audio descriptions for the videos along with closed captioning for videos and slides. There is also voiceover audio and alt-text for images and icons.

Compliance Factors for Employers

As an employer there are steps you must take to be in compliance:

  • You must create records of all your employees’ training and keep the records for three years.
  • You must post an anti-sexual harassment poster in an obvious place.
  • Anti-sexual harassment posters must be in English and Spanish.
  • Every new employee must receive an anti-sexual harassment fact sheet at the time of hire.
  • Your workers must do the anti-sexual harassment training every year.
  • You must have an anti-sexual harassment policy for your workplace.

To avoid disputes and additional expense, it is wise comply with NY Human Rights Law. At Stephen Hans & Associates, our attorneys work with employers, helping them make legal changes in employment agreements and other policies. We also represent business owners in employment litigation.

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What Is Retaliation in the Workplace?

Important Reasons for Employers to Avoid Retaliation

Retaliation in the workplace is unlawful. Therefore, as a business owner it is important to understand what it is and to avoid it. Employers violate the law if they retaliate against an employee who has engaged in “protected activity” under the New York City Human Rights Law or forbidden activities under the Law.

What Does Retaliation Mean?

Retaliation” in a legal sense refers to “punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction or job or shift assignment.”

Examples of protected activity include:

  • Filing a formal written complaint about discrimination (within the company through its management or Human Resources or with any anti-discrimination agency)
  • Testifying or assisting in a Human Rights Law proceeding regarding discrimination
  • Making a verbal or informal discrimination complaint to management
  • Making a complaint that another employee has been subjected to discrimination
  • Encouraging another employee to report an occurrence of discrimination

Even when the employee has left the company, if the employer provides an unreasonable negative reference about the former employee, such behavior can fall under retaliation. However, the employee would have to show that the negative reference was based on retaliation.

Potential Penalties for Retaliation

Under New York Law, the New York State Department of Labor can assess potential penalties for retaliation, including:

  • Penalties ranging from $1,000 to $20,000
  • An order to pay lost compensation to the employee
  • An order to pay liquidated damages

If a New York court finds an employer guilty of retaliation it can impose the following:

Reinstatement of the employer to the former position

  • Restoration of seniority
  • Payment of lost compensation
  • Damages of up to $20,000 per employee
  • Payment of reasonable attorney’s fees

At Stephen Hans & Associates, we help employers comply with employment laws, avoid retaliation, offer legal advice and represent them in employment issues.

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Why Are Family Responsibilities Discrimination Cases on the Rise?

The Underlying Causes of FRD Lawsuits

Family Responsibilities Discrimination Cases

Statistics show that Family Responsibilities Discrimination (FRD) lawsuits are on the rise.  This means that courts are seeing an increase in lawsuits brought against employers by caregivers. Caregivers include single parents, pregnant women, breastfeeding women, parents of young children, and employees who are taking care of sick children, spouses, relatives or other disabled dependents.

FRD Statistics

According to an article on FRD published in Working Mother, FRD cases increased 269 percent between the years of 2006 and 2015. This fact is based on a report done by the Center of Worklife Law, a research and advocacy organization at the University of California, Hastings College of Law.

During the past three years, FRD decisions averaged more than 400 decisions, which was an increase over the previous years. Furthermore, this statistic only included cases where courts issued a decision. It did not include all court complaints or charges filed by the EEOC (Equal Employment Opportunity Commission).

Here are some other statistics that employers should also note:

  • Women file an estimated 88 percent of FRD cases
  • Of these women, about 50 percent received a settlement, judgment or favorable court ruling

Cases that went to trial saw success rates at 67 percent

FRD:Family Responsibilities Discrimination Why is this significant? Typically, employees lose discrimination cases and their winning cases range between 16 and 33 percent. But, as you see, that is not the recent trend.

Contributing Factors to the Rise in Families Responsibilities Discrimination Cases

Contributing factors to the increase in lawsuits are the following:

  • Childcare becoming increasingly expensive
  • Families taking on more caregiving themselves
  • Stagnating wages
  • Cultural shift from #MeToo movement on inequality for women in the workforce
  • Employers still basing decisions on 1950’s era models of one household adult (woman) at home

When companies can hang onto employees so they do not have the costs involved with turnover and hiring/training new employees, it is more financially feasible. Keep in mind, employers who can make it known that they support workers who are caregivers may see lower turnover rates.

If you are unsure about whether your company policies are free of FRD, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.

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Legal Problems with Employees Working Off the Clock

Why Working Off the Clock Can Be a Liability

Employees Working Off the ClockWorking off the clock can be problematic for an employer. One reason is that time clocks or time sheets exist to document an employee’s work hours. When workers do not punch in, the book keeping of hours worked becomes nebulous. However, aside from that, employees can be subject to wage and hour lawsuits, penalties and other additional expenses when they fail to pay employees for time worked.

What Is “Working Off the Clock”?

Working off the clock refers to work an employee does that is not paid or does not count toward the total number of weekly hours worked.

According to the U.S. Department of Labor, work that is done off the clock includes “all the time an employee must be on duty, on the employer’s premises or at any other prescribed place of work.”

Why Is Working Off the Clock Illegal?

The Fair Labor Standards Act (FLSA) establishes the law for wages and hours that employees work. The FLSA addresses overtime, minimum wage and various protections for most workers. Exceptions exist for overtime pay regarding certain administrative and professional employees in some industries, and also for executives, managers and commission based sales employees.

Most employees, those who are not exempt and work over 40 hours in a week, must receive overtime pay for the hours exceeding the 40-hour workweek.

An employee receiving an hourly wage must receive payment for all the work done, even when working extra hours on tasks that are not requested, but which the employer allows.

Examples that Qualify as Working Off the Clock

If you call employees outside of work or send them work related emails that they must answer, you would be encouraging unpaid work or work done “off the clock.”

If you allow your employees to come in early or stay late to finish their work tasks, you can run into problems as an employer. Perhaps your restaurant worker is cleaning up or your laborer is simply dropping off equipment at another site outside of work hours. Off-the-clock work includes employees who work outside of the scheduled hours, for example to get a worksite ready for the production day. Workers who correct errors in paperwork past the time they should’ve gone home also qualify as working off the clock. Even having an employee wait to receive an assignment, despite the fact the employee is not doing anything but waiting, qualifies as work time.

If you are unsure about whether your employees are working off the clock, seek legal advice. Our attorneys at Stephen Hans & Associates are glad to advise you.

 

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What Is Fissuring in the Workplace?

How Fissuring Is Changing the Work Environment

What Is Fissuring in the Workplace?Fissuring in the workplace is a relatively new term. You may have heard about fissuring, a term coined by David Weil. He and Tanya Goldman in the article “Labor Standards, the Fissured Workplace and the On-Demand Economy” explain fissuring as follows:

It “means that in more and more workplaces, the employment relationship has been broken into pieces often shifted…to individuals who are treated as independent contractors.”

Other terms have become prevalent that also reflect this employment change. These are terms such as standard employment, non-standard employment, alternative work arrangements, independent contractors and contract employees.

The business models that typically accomplish fissuring use:

  • Temporary agencies
  • Labor brokers
  • Franchising
  • Licensing
  • Third-party management

What Does Fissuring Mean for Employers and Employees?

As stated by an article in The American Prospect, the workplace is undergoing a change, and fissure is what is happening to the U.S. workforce.

Back in the day, an employee worked for a company, received benefits, stayed with the company long-term and received a pension for retirement. The average worker often spent a lifetime working for the same company.

In an effort to reduce labor costs and also lasting ties to workers, companies have implemented a variety of employment strategies. Strategies include hiring through apps, employing temp workers and freelancers along with contracting out and in some cases, misclassifying employees.

Today, many people have two or three part-time jobs because main jobs are not available. Multiple part time jobs are necessary for them to make financial ends meet.

Yet, various wage changes have also emerged as a result of the fissured workplace. New York, New Jersey, California, Illinois, Maryland, Massachusetts and Connecticut have all enacted $15 minimum wage laws.

The History Behind the Wage Increases

Governor Cuomo of New York created a wage board and held hearings throughout New York. At the hearings, many fast-food workers testified that they couldn’t survive on the $8.25 minimum wage. The New York legislature enacted legislation to raise wages to $15 per hour. Subsequently, the New York City’s Taxi and Limousine Commission engaged in a similar action and raised wages to a minimum of $17.22 per hour for app -based drivers.

The newest emerging trend is for cities to create boards that help workers raise their pay. In this effort, the boards appear to be taking on the previous function of labor unions, which were known in the past for working to equalize pay.

As Bob Dylan sang back in the 1960s, “The Times, They Are a Changin’.“

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

What Does Fissuring Mean for Employers and Employees?

 

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