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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Hairstyle Discrimination in the Workplace

Are Your Company Policies Compliant with Hairstyle Discrimination Law?

Hairstyle Discrimination in the Workplace

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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