NYC Employment Defense Discrimination Attorney

Author: Stephen D. Hans

What If an Employee Can’t Work the Schedule the Employer Wants?

In many situations, a schedule conflict is a reason not to hire a prospective employee. However, when the employee’s religion is the reason for the schedule conflict, you must be careful not to violate discrimination laws.

In 2014, the Equal Employment Opportunity Commission (EEOC) brought a religious discrimination lawsuit against a Dunkin’ Donuts franchisee on behalf of Darrell Litrell. Litrell applied for a baker position, was hired and told he would start on a Friday afternoon. He informed the manager that because of his faith as a Seventh-day Adventist, his Sabbath began Friday at sundown and lasted until sundown on Saturday. For this reason, he couldn’t start the job on a Friday afternoon. Subsequently, the manager revoked the job offer.

Litrell sought recourse from the EEOC, which took his case. The franchisee failed to reach a pre-litigation settlement with the EEOC through the conciliation process, and consequently, the case went to trial. The U.S. District Court for the Western District of North Carolina found in favor of the EEOC, ruling that the prospective employee’s rights had been violated under Title VII of the Civil Rights Act of 1964.
The court’s ruling against Dunkin’ Donuts included:

    • Paying $22,000 to Litrell in damages
    • An injunctive relief prohibiting the company from future religious discrimination as part of a five-year consent decree
    • Implementation of a policy to address religious discrimination
    • Annual training for all employees
    • Required reporting of all religious accommodation requests to the EEOC
    • Posting of its religious accommodation policy in all its North Carolina restaurants and facilities

When you have issues that arise with employees regarding potential discrimination, seek legal counsel as soon as possible. Stephen Hans & Associates has decades of legal experience defending employer’s rights in employment disputes and often works to help businesses avoid such issues in the first place.

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New York Employment Defense Attorney BLog

Dealing with Issues Involving Employee Medical Leaves

When an employee asks for a medical leave, are you justified in firing the employee?

Recently, the Equal Employment Opportunity Commission (EEOC) brought a lawsuit against Dunkin’ Donuts when the owner refused to grant medical leave to a regional manager. The lawsuit alleged that Joan O’Donnell had successfully performed her job, managing the stores at a number of the Dunkin’ Donuts locations. When diagnosed with breast cancer, she emailed the owner and explained she needed a medical leave to receive surgery, chemotherapy and radiation treatment. Instead of granting her the medical leave, the company abruptly discharged her due to her disability just before starting the requested leave.

She took the matter to the EEOC. However, when the EEOC conciliation process failed to

reach a settlement with Dunkin’ Donuts, the EEOC filed a lawsuit.

Under the American Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) , employers with 50 or more employees must grant a medical leave of up to 12 weeks when an employee has a serious health condition and requests a medical leave. Under the FMLA, a disability can involve anything from pregnancy and serious illness to injuries, impairments and physical or mental conditions that require a number of treatments and absences from work. The leave is unpaid, or employers can require the worker to take a paid leave, such as paid vacation time accrued along with the medical leave to cover the time absent from work.

To legally disapprove a medical leave, companies must show that the medical leave would impose undue hardship on the company. The EEOC alleges that a medical leave for breast cancer treatment constitutes a reasonable accommodation and the law requires the employer to accommodate the employee. Also, Dunkin’ Donuts meets the 50 employees requisite for granting medical leaves.

If you have a question about your rights as an employer and whether you must grant a medical leave, you should consult with an experienced employment litigation lawyer.

For decades, Stephen Hans & Associates has provided legal advice and litigation for business owners, helping them with legal compliance and employment disputes.

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What Employers Should Know About Retaliation

Based on Title VII of the Civil Rights Act, the Equal Employment Opportunity Commission (EEOC)  explains that it is illegal for employers to fire, demote, or otherwise “retaliate” against employees or applicants because they filed a discrimination charge, complained to their employer about job discrimination or participated in an employment discrimination proceeding, such as a lawsuit or investigation. Discrimination law prohibits retaliation in the form of denying hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment.

A few years ago during the conciliation process, KONE Inc. reached a settlement with the EEOC using mediation. The settlement was for an employee who had filed a complaint of discrimination with the EEOC against the company. A stipulation in the mediation agreement was that KONE would recode the employee’s personnel file, making her eligible for future rehiring. However, KONE failed to do so and listed the employee as ineligible for rehire in the personnel system, which resulted in failure to rehire her on several occasions.

The EEOC sued on behalf of the employee and the court found that KONE had breached the mediation agreement, was in violation of Title VII of the Civil Rights Act and required KONE to pay $85,000 in monetary relief.

The court also required KONE to provide workplace training on discrimination and retaliation, keep records of discrimination complaints and provide the EEOC with annual reports.

Understanding discrimination law and what courts consider retaliation is vital for a business owner. Companies must ensure that anti-discrimination policies are in place and that management is following them.

Stephen Hans & Associates has decades of employment litigation experience and works with business owners to help them comply with laws and protect their rights. To avoid costly legal expenses, seek legal help at the first sign of discrimination issues. If you already face a complaint, our firm can help.

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Take Quick Actions When Signs of Discrimination Emerge in Your Business

All too often, business owners are not aware of their managers or supervisors engaging in discriminatory practices toward workers. When workers complain about racial or nationality slurs being made in the workplace, this is a red flag for owners to seek legal counsel and handle such complaints before situations escalate.

Recently the Equal Employment Opportunity Commission brought a case in Nevada against a hospitality industry company named Pioneer Hotel. The EEOC alleged that since 2006, hotel workers, who were a class of Latino and/or brown-skinned workers, bore the brunt of extremely offensive and derogatory comments based on their nationality and skin color. The workers subjected to this discrimination were mainly security officers and housekeeping staff. Supervisors and co-workers made these slurs against them and also instructed them not to speak Spanish during their break times. Despite the fact that workers submitted numerous complaints, the hotel failed to stop and correct the discriminatory behavior.

Such treatment was in violation of Title VII of the Civil Rights Act of 1964. The EEOC filed a lawsuit and Pioneer entered into a four-year consent decree to settle the dispute. Terms of the settlement included paying $150,000 to the class members and obtaining an equal employment opportunity consultant to ensure implementation of effective training, policies and procedures to prevent further discrimination, harassment and retaliation. Complaints must be reported immediately to the human resources department, and the company must devise a centralized system to track complaints and post the consent decree at the hotel.

When business owners work closely with employment litigation attorneys, they receive vital legal help to avoid incidents such as the above.

Business owners who see signs of discrimination in their company should consult with our attorneys at Stephen Hans & Associates as soon as possible. If you already face employment disputes we can help protect your rights and settle out of court or litigate on your behalf.

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CVS Hit with Class Action Discrimination Lawsuit

Recently a discrimination lawsuit against CVS Pharmacy became high profile in the news.

The New York Time reported that CVS’s former employees complained that managers required them to profile black and Hispanic shoppers for shoplifting. When they complained about this practice to their supervisors, they were fired.

Consequently, the former employees have filed a class-action lawsuit against CVS, which is a large drugstore chain on the East Coast, surpassed in size only by Walgreens. They filed their lawsuit in the Federal District Court in Manhattan. CVS also fired store investigators who complained about racial discriminating targeting of shoppers, and in fact, all plaintiffs in the class action are either black or Hispanic. The former employees alleged that after complaining about the racial discrimination, their supervisors subjected them to heightened “scrutiny, micromanagement and fabricated performance criticism.”

A year ago, Macy’s and Barneys New York faced racial discrimination allegations for similar issues and settled complaints with NY State Attorney General, Eric T. Schneiderman. Macy’s and Barneys New York paid $650,000 and $525,000 respectively and agreed to implement racial discrimination reform measures.

Clearly, stores must deal with shoplifting issues because theft threatens their viability and reduces profit margins. However, retail business owners must also be vigilant about not allowing discriminatory practices to enter into dealing with the problem. A CVS spokes person informed the news media that CVS has strong anti-discrimination policies, which it rigorously enforces.

For decades, Stephen Hans & Associates has helped business owners put best practices and anti-discrimination policies in place along with protecting their rights through litigation and negotiated settlements.

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U.S. Supreme Court Rules in Abercrombie & Fitch Discrimination Case

In March, we blogged about a religious discrimination case that was scheduled for hearing at the U.S. Supreme Court level. The Supreme Court rendered its decision on June 1, with the judges almost in unanimous agreement — eight to one.

Abercrombie & Fitch refused to hire Samantha Elauf because she wore a headscarf during her job interview, which the company said was in violation of its dress code, which called for a “classic East Coast collegiate style.” They argued she had not stated her headscarf was based on her religious practice.

The New York Times quoted Justice Antonin Scalia as saying that reaching a decision was very easy. This proved to be true because the only dissenting justice was Justice Clarence Thomas.

The Supreme Court remanded the case to the lower court for trial. The court based its reasoning on the fact that the company certainly had to suspect the applicant’s reasons for wearing a headscarf were due to religious practice. Justice Scalia stated that based on Title VII of the Civil Rights Act of 1964, Ms. Elauf did not have to specifically ask for religious accommodation. The Act entitled her to freedom from religious discrimination, and clearly, the company decided not to hire her based on her religious practices. Justice Scalia said, “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”

Employers should take note and apply this fact to their hiring practices.
If you own a business and have discrimination or other employment issues, Stephen Hans & Associates can assist you. We bring decades of experience to the table whether litigating or resolving cases through negotiated settlement.

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Food Industry Labeling: The Nuances of Meeting FDA Standards

At the end of November, 2014, the Food and Drug Administration (FDA) began requiring restaurants and vending machine companies to label foods for nutritional value. At first glance, this requirement may not seem like a significant legal issue, but in light of a recent investigation, perhaps there is more than meets the eye.

In March, 2015, the FDA issued a warning letter to a New York company called Kind, LLC

The company manufactures healthy snacks, and the FDA warned that the company’s labeling failed to meet FDA labeling requirements for its products: Kind Fruit & Nut Almond & Apricot, Kind Fruit & Nut Almond & Coconut, Kind Plus Peanut Butter Dark Chocolate + Protein, and Kind Plus Dark Chocolate Cherry Cashew + Antioxidants.
The labeling on these snacks violated the Federal, Food, Drug, and Cosmetic Act. Some of the words used in advertising the product included “healthy and tasty,” “convenient and wholesome,” “good source of fiber,” “no trans fats” and “very low sodium.” The FDA maintains strict percentage standards for certain nutrients to be called “no trans fats” or “antioxidant rich” and “very low sodium.”

The following was an example of how product labeling was inconsistent with FDA standards. To meet a claim of “healthy,” foods must conform to the standards set forth in 21 Code of Federal Regulations (CFR) 101.65(d)(2) . “Low saturated fat” is a fat content of one gram or less and with no more than 15 percent of the calories in the food derived from saturated fat. The Kind, LLC products had 3.5 grams of saturated fat, not one gram or less.

This was just one of a number of violations and the warning letter gave Kind, LLC 15 days to respond and explain the actions being taken to correct each of the violations listed.

In the sea of regulations and laws that businesses must comply with today, it is vital to have an employment law attorney to consult with and receive help from with legal issues, whether involving regulatory agencies or employees. The best defense is always preventative in nature.

Stay on top of your business by consulting with an experienced employment defense lawyer. Stephen Hans & Associates has successfully defended and provided legal guidance to employers for more than 20 years.

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