Supreme Court Rules in Favor of Employers in Recent Arbitration Case

Do you have an arbitration clause in your employment contract?

For some time, businesses have included arbitration clauses in their legal documents, which have stated that employment disputes would be resolved through arbitration. Companies can benefit from using arbitration to resolve disputes because it spares the expense of costly lawsuits.

According to the National Law Review, during the past six years, an ongoing legal battle has ensued to determine the legality of waiving arbitration agreements to allow class action lawsuits. The National Labor Relations Board (NLRB) had a policy of declaring arbitration agreements that included class action waivers as unlawful.

Various federal appeals courts had ruled on the issue with opposite findings, some holding that class action waivers were lawful and others deferring to the NLRB’s policy on the matter, that they were unlawful.

What Was the Recent Supreme Court’s Ruling on the Arbitration with Class Action Waivers?

As the highest level of appeal in the nation, the U.S. Supreme Court has the final say. Even so, the justices were split on the issue with a standing of 5 to 4.

On May 21, 2018 the U.S. Supreme Court ruled that valid arbitration agreements must be enforced.

Supreme Court Rules in Favor of Employers in Recent Arbitration Case

On What Basis Did the Supreme Court Arrive at Its Decision?

The Arbitration Act states that an arbitration agreement may only be invalidated “by generally applicable contract defenses, such as fraud, duress or unconscionability.”

In the case before the Supreme Court, employees did not assert that an act of fraud, duress or some other unconscionable factor should render the arbitration contract unenforceable. They objected because they were required to have individual arbitration proceedings instead being allowed a class or collective proceeding. The majority of justices ruled that their argument did not meet the terms of the Arbitration Act as sufficient to invalidate an arbitration agreement.

The majority also ruled that there is no conflict between the Arbitration Act and the National Labor Relations Act, which does not express approval or disapproval of arbitration and does not mention class or collective procedures at all. Therefore, the court found that the NLRB had overstepped its authority in its decisions that class or collective actions could waive arbitration agreements.

Get Legal Help with Your Questions about Employment Law

If you face employment disputes, our attorneys at Stephen Hans & Associates are glad to offer seasoned legal guidance and representation to help you resolve employment issues.





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Flex Schedules for Businesses

Flex Schedules Can Help Employers Reduce Overtime Costs

You often hear the term “flex schedule,” mentioned as a job perk, and it may well be if as a result the worker avoids peak traffic times and getting stuck in freeway gridlock. However, flex schedules can also be of great benefit to an employer, and especially in terms of avoiding the costs of overtime payments. Overtime costs are among the top concerns that small business owners have.

Why Are Overtime Costs a Top Concern for Small Business Owners?

According to statistics on the NYS Comptroller website, an estimated eight to 30 percent of wages paid to highway employees in NYS are for overtime.

Employees Flex Schedules

What Flex Schedules Can Serve As Alternatives?

Depending on the operational needs of a business, depending on employees’ needs and based on terns included in union contracts, the following are possible flex schedules to consider:

Five-day flex schedule. A five-day flex schedule either ends the workday earlier or later than normal. For example, when employees arrive earlier to work, then they would also leave work earlier.

Five-day, eight-hour schedule with alternate shifts. Scheduling more employees to work during peak hours and smaller numbers of employees to work during non-peak hours helps with meeting production or service needs.

Four-and-a-half-day schedule. Employees work an extra hour on Monday through Thursday and a half-day on Friday. The employer still avoids having to pay overtime.

Four-day, 10-hour schedule. Employees would work an hour earlier and later Monday through Thursday. This type of schedule can help employers avoid overtime that would apply to the fifth workday.

Four-day, split-crew schedule. This type of schedule splits the crew so half of the employees work 10-hour days on Monday through Thursday and the other half works 10-hour days on Tuesday through Friday.

How Do Employers Save with These Flex Schedules?

A Comptroller’s Office audit indicated that in the nine towns they studied, employers could have saved between $15,000 and $159,000 in overtime payments by using one of the flex schedules. Employers would also save money on the amount they would pay into Social Security and Medicare, workers comp premiums and retirement costs, indicating a 20 percent cost savings overall.

For Answers to Questions about Wage and Hour Laws

Discuss your concerns with our attorneys at Stephen Hans & Associates. We are happy to provide trusted legal guidance to business owners regarding employment related issues.

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Social Media: Can You Use Social Media in Hiring Decisions?

Can or Should Cyber-Vetting Be Part of the Hiring Process?

Some employers are using social media in hiring and are cyber-vetting their job applicants. However, these practices are under the legal microscope as cases arise involving employment and social media. Some states have already passed laws that limit what an employer can do in relation to accessing an applicant’s social media.

What is cyber-vetting?

Cyber-vetting refers to using information found at social network services, such as Facebook, Twitter, LinkedIn and Google, to evaluate whether an applicant is an appropriate fit for a job.

Why should employers be concerned about using social media in hiring?

Today, many individuals post large amounts of personal information online that describe their family, friends, favorite books or movies, political candidates they support and how they spend free time outside of work.

Can You Use Social Media in Hiring Decisions?

According to the American Bar, there are important factors that employers must consider before using social media or even before doing simple internet searches. They include:

Actual identity. Many people have the same names and it is easy to confuse one person with another based on online accounts.

Validity of information. Who is to say whether the information posted on a site is true or not?

Impermissible subject matter. Impermissible information that relates to religion, disabled status, sexual orientation, marital status, genetic information, etc. are protected characteristics that employers may not consider as a reason not to hire when interviewing job applicants. However, this information is often discussed in social media and stands out to anyone visiting the site.

A Case Ruling that Involved Website Information about a Job Applicant

In the case Gaskell v. Univ. of Kentucky, the hiring committee was privy to an email circulated by an employee about a scientist’s religious views, which were visible on the scientist’s website. After the email was circulated, the hiring committee rejected the scientist applying for employment. The court denied the University’s motion for summary judgment against the plaintiff’s claims of religious discrimination, stating that the plaintiff had raised a triable issue of fact about the University’s motivation in its decision not to hire him.

Employers can put themselves at risk for being suspected of improper motivation simply because they accessed online information. This even occurs when the information is not a factor in their motivation.

State Laws About Social Media in Hiring

Some states have passed laws prohibiting or limiting employers from asking employees for social media account information. Currently, there is a bill in the New York Legislature (N.Y. Senate-Assembly Bill S. 3927, N.Y. Assembly Bill A. 2891) that would protect employees and applicants from having to provide their social media information to employers.

Social Media: Should You Use Social Media in an Internal Investigation?


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Social Media: Should You Use Social Media in an Internal Investigation?

Investigating Employees Through Their Social Media Accounts

Social media can provide a lot of information about people’s lives. Why would an employer want to know what an employee is doing through social media?

An employer may suspect that an employee is doing other things during work that do not relate to his or her job, such as posting on Facebook, watching Youtube videos, etc. An employer may also wonder if the employee is speaking badly about the company or discussing private company information.

Any number of reasons could motivate an employer to pressure an employee for social media account information or to access the employee’s site without permission.

What laws protect the privacy rights of employees?

The American Bar Association warns employers about not violating the Stored Communication Act (SCA). The SCA includes social networking sites when it states that individuals are subject to criminal and civil actions when the individual:

“Intentionally accesses without authorization a facility through which an electronic communication service is provided”

“Intentionally exceeds an authorization to access that facility”

(By intentionally accessing) “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system”

Keep in mind that a government institution may obtain a subpoena for an investigation and through court approval access social networks for information. However, a private company conducting an internal investigation does not have this right.

Employers who obtain access to social media under false pretenses or through duress can be held liable and courts typically do not view favorably attempts to access an employee’s account information or the private account of a “friend.”

However, in some instances where employers obtain the information without asking or pressuring an employee to provide it, the courts have allowed it.

Get Legal Help with Your Questions about Employment Law

It is often wise to seek legal advice when you have questions about accessing an employee’s social media information. Stephen Hans & Associates offers seasoned legal guidance and representation to assist business owners with employment issues.

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The Stop Sexual Harassment in NYC Act

A New Law to Further the Prevention of Sexual Harassment in NYC Workplaces

The New York City Council recently passed legislation called the Stop Sexual Harassment in NYC Act. If Mayor Bill de Blasio signs the bill, it will go into effect on April 1, 2019.

What changes were introduced?

  • Several major changes included:
  • Mandatory anti-sexual harassment training
  • Employer requirements to display anti-sexual harassment posters of rights and responsibilities and to provide information sheets to employees
  • City Commission requirements to post resources on their website about sexual harassment

Who must receive the mandatory anti-harassment training?

All employers with 15 or more employees (including interns) must conduct yearly anti-sexual harassment training for all their employees. Supervisors and managers must also receive the annual training. The training must cover sexual harassment definitions and examples, bystander intervention education, and education about how to file complaints within the company and at the city, state and federal levels.

New NYC employees who work 80 or more hours per year on a full or part-time basis must receive the training within 90 days of initially being hired. If the employee received the training while working for another employer within the yearly training period, the employee can wait until the next year for annual training. Employers must receive a signed acknowledgement from the employee that he or she received the training.

What notifications must employers provide?

Employers must display a poster of anti-sexual harassment rights and responsibilities in a conspicuous spot and provide new employees with a sexual harassment information sheet that the City Commission has designed. This requirement takes effect 120 days after the mayor signs the act into law.

The City Commission must post resources about sexual harassment on its website and provide specific examples of sexual harassment, retaliation, information on bystander prevention and explanations regarding how to file complaints with the city, state and federal agencies.

(Further information is available at the National Law Review.)

Get Legal Help with New York City Anti-Harassment Law

If you are facing a sexual harassment claim, Stephen Hans & Associates can assist you in protecting your rights. Our firm offers seasoned legal guidance when advising and representing employers in disputed employment issues.


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What Employers Should Know About the New York Women’s Equality Act

Clarifications for Employers for Women in the Workplace

In June of 2014, the Governor Andrew Cuomo of New York signed amendments to the New York State Human Rights Law, which bolstered civil rights for women.

It’s important for employers understand the changes under the Women’s Equality Act so they can abide by the law and avoid discrimination disputes in the workplace.

Womans Equal Rights, NY Equality Act

How does the act affect pay equity?

Women must receive the same pay as men when performing the same work. However, the previous law enabled employers to suspend or terminate employees for discussing their wages with each other. This law prevents employers from firing or suspending employees who discuss wages with each other and also increases the amount in damages an employee can seek if an employer violates the new law.

How did the definition of “employer” change in respect to sexual harassment?

Previously, business owners with four or fewer employees were not considered “employers” under the Human Rights law, and therefore the sexual harassment law did not apply to them. The new law eliminates this distinction, and employees subjected to sexual harassment while working for any size company may file sexual harassment complaints.

Is it lawful to not hire or promote a woman because of her status of being a parent and her familial duties?

The new law prohibits employers, employment agencies, and labor organizations from discriminating against women based on their familial status. They cannot assume that because a women has children or plans to have a family that this fact disqualifies her for hiring or job promotion.

What changes were included in the act that affects pregnancy discrimination?

Employers are obligated to provide reasonable accommodations for pregnant women, due to the fact that certain pregnancies involve medical conditions. The previous law was confusing and often was wrongly interpreted. The new act clarified employers’ responsibilities to perform a reasonable analysis for pregnant employees.

Do You Have Questions about Women’s Rights in the Workplace?

Our attorneys are glad to answer your questions and address your concerns.

Stephen Hans & Associates provides decades of experience to business owners regarding employment related issues.


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Wage and Hour Investigations: What You Should Know About Them

Facing investigation by the New York Department of Labor for alleged unpaid wages is a serious matter. How you handle the investigation can often determine the outcome, and it is wise to retain an experienced employment law defense attorney from the outset to represent you and protect your rights.

Under the guidance of your attorney, here are some actions you should take:

Respect the agency doing the investigation. If you provide ample opportunity for discussions and engage in earnest, you may be able to avoid an administrative hearing or enforcement proceeding in court. Showing respect and cooperation are vital for avoiding further legal actions.

Provide complete and detailed records. Investigators expect employers to be forthcoming and not hide information. Suspicions that employers may be trying to deceive them or hide information can lead to more severe actions. Cooperation is the best policy.

Make corrections and comply with regulations. If you conduct a self-audit to correct any underpayment activity and take steps to ensure compliance, you can turn the investigation into an opportunity to identify errors and reform payroll practices that were problematic. This type of action can often prevent worse problems from developing.

Follow your attorney’s advice and guidance. Through seasoned assessment and evaluation of your situation, an attorney can advise actions you can take to limit your liability with the investigating agency.

Potential Results of Poorly Handled Wage and Hour Investigations

According to the New York Department of Labor, the Labor Standards Division investigates claims for unpaid wages and will attempt to resolve the differences between employers and employees.

However, it is crucial to understand that the Commission of Labor has broad authority in such matters and is authorized to do the following, if necessary:

  • Institute criminal proceedings for failure to pay wages
  • Require an employer to pay interest and civil penalties on unpaid wages
  • Take over handling the employee’s wage claim
  • Institute a civil lawsuit to recover wages that are due
  • Require the employer to pay up to 100 percent of the claim in liquidated damages

Get Legal Help with New York Labor Board Investigations

If you are under investigation for wage and hour violations, Stephen Hans & Associates can assist you. Our firm offers seasoned legal guidance when advising and representing employers in disputed employment issues.

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