How Many Racist Statements Does It Take to Create a Hostile Work Environment?

If is severe enough, one racist statement can create a hostile work environment, according to the United State Court of Appeals for the Second Circuit. This court hears appeals for New York, Vermont and Connecticut.

As reported in The Legal Intelligencer , in the case Daniel v. T&M Protection Resources, Inc., the plaintiff alleged harassment, termination and retaliation because of the worker’s race, national origin and sexual orientation.

Details of the Daniel v. T&M Protection Resources, Inc. Appeal

The court concluded that the single use of the N-word as a severe racial slur was sufficient evidence to overcome the defense’s request for summary judgment in the hostile work environment claim. Previously, the district court had found in favor of the company, Protection Resources, which is located in Manhattan.

Daniel Otis worked as a fire safety director at the company and was eventually terminated in retaliation for his complaints of discriminatory treatment.

Among various derogatory comments the supervisor made about Daniel were slurs about his looking like a gorilla, complaints about his English accent and telling him to go back to England. He also rubbed his genitals against him and asked him whether he was gay. At one point the supervisor became angry and called him the N-word. A week after filing his complaint, Daniel was under investigation and then the company fired him for receiving personal mail at the workplace.

The district court found that use of a racial slur during one yelling incident was not enough to constitute a hostile work environment claim.

However, the appeals court ruled that the lower court erred in adjudicating that a one-time use of a severe racial slur did not support a hostile work environment claim. It was the court’s opinion that the use of the unambiguously racial epithet, “n—–,“ by a supervisor in the presence of his subordinates was a single act that can quickly alter employment conditions and create an abusive working environment.

Are You a Small or Medium-Sized Business Owner Facing Hostile Work Environment Allegations?

If so, get legal advice as soon as possible. Stephen Hans & Associates is a New York law firm with decades of experience representing business owners in employment disputes.

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Race Discrimination Lawsuit: Rosebud Restaurants Settled, Paying $1.9 Million

In a race discrimination lawsuit, the EEOC sued Rosebud Restaurants and parties settled for the amount of $1.9 million.

The EEOC brought a lawsuit against Rosebud, which operates 13 Italian restaurants in Chicago and nearby suburbs.  The restaurants were not hiring African Americans, and restaurant managers and the Rosebud owner Alex Dana used racial slurs when referring to African Americans. When the EEOC started investigating, a number of the restaurants had not hired any African American employees at all. In addition, Rosebud failed to maintain employment applications for one year, which violated federal law. The restaurants also failed to file employer information reports, which would contain information such employment by job category, race, ethnicity and gender.

Before taking legal action, the EEOC first attempted to use its conciliation process to resolve the issue. When a settlement could not be reached, it filed a lawsuit for racial discrimination in hiring based on Title VII of the Civil Rights Act of 1964.

Outcome of the Race Discrimination Lawsuit

Details of the settlement include:

  • African American applicants who were denied jobs will receive $1.9 million from Rosebud.
  • Rosebud now has hiring goals for qualified African American job applicants, including that 11% of future employees will be black.
  • The settlement decree prohibits Rosebud from engaging in future racial discrimination or retaliation
  • Rosebud must recruit African American applicants
  • Rosebud must train managers and employees against race discrimination and retaliation
  • For four years, Rosebud must periodically submit reports to the EEOC that show compliance with the settlement decree’s terms
  • Rosebud must post notices that inform employees about the decree’s terms

The parties were able to resolve the lawsuit through lengthy negotiations. The negotiations occurred prior to depositions and significant pre-trial motions that could have resulted in considerable litigation costs.

Consult with Experienced Employment Defense Lawyers

If you face employment issues such as discrimination or wage and hour disputes, Stephen Hans & Associates can provide you with seasoned legal representation based on more than 20 years of employment law practice experience.


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NYC Carwash Law Ruled Illegal Due to Promoting Unionization

Recently a NY federal judge ruled that the NYC Carwash law was illegal because it promoted unionization of carwashes.


In 2015, the NYC Council passed a law to regulate car wash businesses. The Council believed the law would protect low wage car wash employees who were being denied proper wages and tips by requiring carwash owners to carry bonds. Shops that had not unionized had to buy a $150,000 bond. Unionized shop owners only needed to purchase a $30,000 bond because workers would have stronger protections through a union.

A group of NYC car wash owners sued the city over the new law and alleged that it illegally favored unionized car washes.

Federal Court Ruling on Unionization and NYC Carwashes

A federal judge of the Federal District Court in Manhattan heard the case and ruled that the NYC law violated federal law because it favored unionization and “impermissibly intrudes on the labor-management bargaining process.” (The New York Times ) The United States Supreme Court had ruled on similar cases to this in the 1970s and 1980s.

The law would have affected the estimated 100 to 200 NYC carwash businesses, of which less than 10 percent are unionized.

Due to the lawsuit, the 2015 law had never gone into effect and awaited the court ruling.

The president of the union representing carwash workers said he would support one level of bond, valued at $150,000 for all carwash owners. These surety bonds ensured that workers would have money available in the event of wage theft.

Are You a Small or Medium-Sized Business Owner Facing Unionization?

If so, get legal advice and ensure you protect your rights. Stephen Hans & Associates is a New York law firm that assists business owners with employment and labor law issues. We have decades of experience helping businesses with unions and unionization issues.



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How Can You Make Sure You’re Ensuring Equal Pay and Fair Promotions?

Running a business requires having legal rudiments in place for many aspects of your company. The Equal Pay Act (EPA) is another federal law you must comply with and doing so can help you avoid wage and promotion lawsuits like the one recently faced by Sterling Jewelry.

Steps to Take to Ensure Equal Pay and Fair Promotions

XpertHR , a site by Lexis Nexis, suggests you take the following steps:

Knowledge of the EPA and State/Local Wage Laws. Under the EPA, men and women who work comparable jobs should receive equal pay. What determines whether jobs are comparable? Skills, job responsibilities, and similar working conditions in the same geographical regions are all factors. Equal pay encompasses more than just salaries and includes overtime, bonuses, stock options, insurance, vacation and holiday pay and other benefits such as promotional opportunities. Consult with your lawyer so you can also be aware of any state or local wage laws.

Anti-Discrimination Policies. Your company should have a policy that explicitly prohibits wage discrimination. All employees should receive pay based on their experience and skill.

Fair Decision-Making. Ensure no discriminatory factors are part of decision-making in regards to raises, bonuses and promotions. Such decisions should be based on skills, merit and performance and should never be based on protected classes of sex, race, national origin, etc.

Management Training. As the employer, you must ensure your supervisors and managers receive training on your policies and ways to avoid wage discrimination. They must understand what are non-discriminatory reasons and base decisions on legitimate factors.

Salary and Bonus Guidelines Documentation. To legally protect your business, you must create documentation. Document the guidelines you have established for deciding bonuses, such as whether merit, productivity, sales and commissions are the criteria. These are fair and predictable criteria for decision-making. In addition, letting managers, supervisors and employees know about the criteria helps them to meet job expectations and understand how decisions are made.

Documentation of Decisions. Document your employment decisions and have adequate records in case you ever need to defend them in disputes or lawsuits.

Auditing Pay Practices. Regularly review your pay practices to ensure no discrimination exists and take corrective action if any is uncovered.

Diverse Work Environment. Incorporate best practices that aim to hire employees based on merit, skills and experience and not based on excluding protected classes.

Performance Evaluations. Provide annual or biannual performance evaluations to help employees understand employment expectations.

Discussion of Wages. It’s illegal to prohibit employees from discussing wages, salary or benefits with other employees. The National Labor Relations Act affords employees this right. Do not prohibit it.

Prevent Lawsuits and Employment Disputes

Today, laws affect businesses in many ways. If you’re a business owner and have questions or concerns about legal issues, Stephen Hans & Associates can provide you with answers and help you safeguard your workplace.

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Sterling Jewelers Reaches Settlement with EEOC for Sex Discrimination

Sterling Jewelers is the parent company of Jared the Galleria of Jewelry and Kay Jewelers. It is the largest retail jewelry company in the United States. Recently, the EEOC brought a lawsuit against Sterling for discrimination over its pay and promotion practices.

The New York Times reported Sterling was able to reach a settlement with the EEOC.

Sterling agreed to hire an independent employment expert who would examine its compensation and promotion practices. Signet Jewelers, which is Sterling’s parent company, made a public relations announcement stating that it did not tolerate discrimination of any kind and that the steps taken as part of the agreement with the EEOC were consistent with its commitment to continuous review and improvement.

This was a legal victory for Sterling because it avoided having to admit wrongdoing and did not have to pay fines or compensation.

Another Class Action Lawsuit Sterling Faces

This is not the only lawsuit that Sterling has faced recently. Another class-action arbitration case accusing the company of gender bias is yet to be resolved. In March 2017, 12 women filed a class-action lawsuit against Sterling Jewelers. The assistant manager, Ms. Souto-Coons discovered a newly hired male salesman with no retail experience was hired and making $1.50 more than a woman who was the store’s top seller. She then reviewed all the files of co-workers and realized all the men were making higher hourly rates than the women who held the same positions.

The class action lawsuit also contains evidence that hundreds of former employees described incidents of sexual harassment that were reported and ignored. Signet said the company investigated and continues to investigate reports of misconduct. However, the class-action case does not focus on sexual harassment and the comments about sexual harassment are in the context of the complaints about pay disparities. There are 69,000 employees who are class members in the lawsuit.

Stephen Hans & Associates is a New York law firm that assists business owners with employment and labor law issues.

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What Do Restaurant Operators See as Their Biggest 2017 Business Challenges

You might think that hiring and firing employees would be restaurant operators’ biggest concerns. That was true in 2015 but not according to a survey done in 2016.

When The National Restaurant Association polled restaurant operators about their concerns, the number one answer was “government.” The percentage that felt this way was 22 percent. (Toast Restaurant Management Blog )

It’s an interesting fact that laws became the greatest worry.

restaurant operators business challenges


What laws are restaurant operators concerned about?

Here are just a few:

The Affordable Care Act. Employers with more than 50 full-time workers must offer health benefits to full-time employees or pay penalties of up to $2,000.

Dietary Guidelines. Every five years, the U.S. Department of Agriculture and Health updates dietary guidelines, which requires restaurants to modify ingredients, re-do menus, change portion sizes and increase the number of healthy options. Certain restaurants now have to label the calorie and nutrition information on menus.

*** Local Caption *** Bacon burger with beef patty on red wooden table


Joint Franchisor/Franchisee Status. The franchise restaurant model is at risk through litigation that identifies small franchisees as big business. Independent operators who decide their own wages, hiring and firing policies may lose some of these decision-making capabilities based on a recent National Labor Relations Board (NLRB) trial brought against McDonald’s.

Overtime Pay. The U.S. DOL increased the overtime threshold limit from $23,660 to $47,550, and this changed which salaried employees would be entitled to overtime pay. Now the matter is being litigated at the District Court level and may be appealed even higher for a final decision.

Seek an Experienced Legal Opinion

In today’s world, a business owner can’t do business without dealing with laws and regulations that require compliance. If you own a restaurant and have questions or concerns about legal issues, Stephen Hans & Associates provide you with answers, legal advice and representation in disputed matters.




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NYC Proposed Legislation for Fast Food Restaurants

Recently the New York City Council has proposed bills that could affect considerably how fast food restaurants deal with scheduling work.

What is a fast food restaurant?

The bills define fast food establishments as franchises that are part of a chain of 30 or more restaurants nationally. The establishments provide limited customer service and customers order and pay for food and drinks before eating.

Here are some factors the bills address:

“Clopening.” One bill addresses a scheduling situation coined as “clopening.” Clopening is when an employer schedules an employee to close on one shift and open on the next shift. This bill would require the employer to schedule a break of more than 11 hours between employees’ shifts unless a employee consents to the schedule. Failure to do so would result in paying the employee $100 for each instance of “clopening.”

Predictive scheduling. Fast food employers would be required to post a notice of employee’s rights and notify employees 14 days in advance of their work schedule, and this includes employees just hired. To any employee, whose schedule is changed with less than a 14 days notice, the employer would have to pay $15 to $45 per instance. Changes would include cancelling, shortening or moving a shift. When a change results in reducing a shift with less than 24 hours notice, the employer would pay a premium of $75. Employees seeking damages would have a cause of action with a two-year statute of limitations.

Path to full-time employment or additional hours. Another proposed bill would require employers to provide fast food workers with a path toward additional hours and full-time employment. The bill would require that employers offer available shifts to current employers at their location before hiring more workers. The employer would have to post a notice for three consecutive days when shifts become available.

Overall, How Does the Proposed Legislation Affect Fast Food Restaurants?

If the proposed legislation passes, employers of fast-food restaurants will experience greater stress in their efforts to be flexible while dealing with high employee turnover rates and labor costs.

Stephen Hans & Associates assists small and medium sized business owners with employment and labor law issues.


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