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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EEOC’s Strategic Plan and Lawsuits Based on Widespread Discrimination

When the Equal Employment Opportunity Commission (EEOC) determines that a claim merits litigation based on widespread discrimination, it is not required to name specific individuals as victims of discrimination to bring a lawsuit.

This was the ruling in a recent lawsuit filed by the EEOC entitled the EEOC v. Rosebud Restaurants, Inc. et al. The EEOC alleged that Rosebud Restaurants violated Title VII of the Civil Rights Act by refusing to hire African-Americans because of their race. The EEOC first attempted a pre-litigation settlement through its conciliation process; however, Rosebud Restaurants filed a motion to dismiss the case, arguing that the EEOC failed to identify the victims of the alleged hiring discrimination. The U.S. District Court denied Rosebud Restaurant’s motion, stating that allegations of intentional discrimination were sufficient to state a claim for Title VII relief without identification of specific job applicants.

Bringing litigation against widespread discrimination is one of the priorities listed in the EEOC’s Strategic Enforcement Plan (SEP)  SEP is a plan developed to combat systemic discrimination in hiring based on race. SEP uses strategies that include investigation and litigation to accomplish the following:

  • Eliminating barriers in recruitment and hiring
  • Protecting immigrant, migrant and other vulnerable workers
  • Addressing emerging and developing issues
  • Enforcing equal pay laws
  • Preserving access to the legal system
  • Preventing workplace harassment through systemic enforcement and targeted outreach

It is wise for small and mid-sized business owners to consult with an employment litigation attorney when devising company policies and practices. A lawyer can help you stay in compliance with state and federal anti-discrimination laws and regulations. Stephen Hans & Associates  has represented clients for more than 20 years in issues involving employment disputes, including discrimination allegations.

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EEOC Files Its First of Two Transgender Discrimination Lawsuits

New York employers should take note that the Equal Employment Opportunity Commission (EEOC) filed and settled its first transgender discrimination lawsuit. In April 2015, the EEOC brought the suit against Lakeland Eye Clinic in Florida but avoided trial by negotiating a pre-litigation settlement for $150,000 during its conciliation process.

The issue being litigated involved discrimination based on sex, alleging that the company fired its Director of Hearing Services after the employee began to present as a women, transitioning from male to female. The employee had performed at her job satisfactorily throughout her tenure as director, and the lawsuit alleged that she was fired because she became transgender and the company claimed this change did not conform with the employer’s gender-based stereotypes. However, Title VII of the Civil Rights Act protects employees against sex discrimination. The EEOC commended Lakeland Eye Clinic for settling the dispute and agreeing to provide its managers and employees with training that educated them against transgender discrimination.

At the federal level, this is a landmark case that sets a precedent for other transgender anti-discrimination cases brought before the EEOC.

At a state level, New York has had laws in place since 2002, under The Sexual Orientation Non-Discrimination Act (SONDA)

, which prohibit discrimination in employment based on actual or perceived sexual orientation, and this also extends to transgender issues.

If you are a business owner and have questions or disputes involving sexual orientation discrimination, Stephen Hans & Associates can help. Our firm provides representation to companies involved in anti-discrimination litigation and brings decades of experience to every case we handle.

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The Launch of Stephen D. Hans & Associates’ New Website

Stephen D. Hans & Associates, P.C. wants to welcome you to the launch of our new employment litigation website.  We hope you can easily find the information you are searching for on our mobile friendly site and that it satisfies your needs.

Early in his legal career, Attorney Stephen Hans discovered his aspirations resided in the area of employment and labor law, and he has maintained this primary focus since 1979. His law firm has provided valuable legal guidance and representation in numerous issues involving employment law, wage and hours law, labor law and work-related disputes, whether with regulatory agencies or employees.

Today, more than ever before, small to mid-sized business owners find themselves in a fast changing legal landscape where increasingly they must comply with new regulations and laws that affect how they do business. Seeking legal counsel about labor and employment issues has become an essential aspect of staying in business. Having an employment defense lawyer serves a dual purpose of providing:

*Legal guidance with devising and implementing policies and guidelines that align with laws and regulations and prevent employment disputes

*Strong advocacy to protect your interests as a business owner through litigation and negotiated settlements when disputes arise

Years of experience representing plaintiffs and defendants, and employees and employers have led our firm in a specific legal direction. Our practice has evolved into a law firm that concentrates on employer litigation, offering affordable legal help to small and mid-sized business owners through flexible billing options.

Whether you face a legal matter in a New York State or Federal court, you can rely on our proven track record and extensive experience to protect your interests. Contact Stephen D. Hans & Associates, P.C. for legal help with preventing or dealing with employment disputes.

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STARS Act of 2015 Addresses ACA Confusion over Season Employee/Season Worker

Author: Stephen D. Hans

The restaurant industry and other fields of work, such as farming, often have seasonal workers that pick up heavier work loads during more productive times of the year.

The lack of clarification regarding seasonal employment has been confusing for small business owners, family farms and ranches when dealing with the Affordable Care Act (ACA) and its requirements to provide healthcare insurance for employees.

The bipartisan Simplifying Technical Aspects Regarding Seasonality (STARS) Act of 2015  provides clarity so small businesses can understand their obligations in complying with healthcare law and not receive fines.

As the ACA stands in its current form, extensive calculations are necessary to determine the number of full-time employees and whether you qualify as an exempt, small seasonal employer. Many employers have found the process to be complex and confusing.

The STARS Act would provide a clear definition for a seasonal worker and seasonal employee as the following: A worker who is employed for six months or less during the calendar year. The formulas employers would use to determine whether they are large employers and whether their workers have full-time status have also been simplified.

STARS is supported by the National Restaurant Association (NRA) and the American Farm Bureau Federation (AFBF).

If you have questions about your obligations under the ACA, our attorneys at Stephen Hans & Associates can provide you with trustworthy legal guidance. Our firm has decades of experience assisting clients with litigation related to employment issues.

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Implications of the Recent Retail Wage Increases

Recently, Wal-Mart announced its decision to raise the base wage of its employees.
Wal-Mart plans to increase wages for close to 40 percent of its workforce. As of April, workers will earn at least nine dollars an hour, which is $1.75 more than the federal minimum wage. Workers’ wages will increase to $10 per hour by February 2016. According to a Washington Post article, Wal-Mart is the nation’s largest employer.

Several days later, another retail giant. TJX, mother company of TJ Maxx, Marshalls, and Home Goods announced it also was increasing retail workers’ base pay to nine dollars an hour. Forbes reports that this wage increase is in keeping with IKEA’s wage increase to more than $10 per hour in 2015 and also with Gap Inc. which also increased their workers’ base pay in 2014 and at the beginning of 2015.

We see a domino effect occurring in the retail industry that may carry over to other lines of work as well. What is obvious is that the retail business model is undergoing change. Part of the underlying reason may be that retail chain stores have to compete with online stores, such as Amazon.

Another factor may be that bad publicity. Despite advertising efforts to create good branding and trustworthy images, a negative public image can drive customers to leave retail stores and shop online instead. Consumers wonder why large conglomerates are not paying their workers well and do not want to support them. Also, as the economy improves and employment pools shrink, stores must raise wages to stay competitive with each other if they want to hire the better job candidates.

Stay on top of your business and consult with an employment lawyer who has extensive experience handling wages and hours disputes. Stephen Hans & Associates offers effective legal representation and has successfully defended employers for more than 20 years in employment litigation issues.

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Wal-Mart Hit by EEOC with Age and Disability Discrimination Suit

Sometimes hearing about a discrimination case is the best way for employers to understand potential liability.

People would expect a company the size of Wal-Mart to have anti-discrimination policies firmly in place, but even so, there are instances where managers fail to abide by the policies. The EEOC sued Wal-Mart on behalf of David Moorman based on age and disability discrimination. The lawsuit alleged that Moorman was subjected to frequent harassment by his direct supervisor who called him “old man” and “old food guy.” The store refused to make accommodations when Moorman was diagnosed with diabetes and upon his doctor’s advice requested reassignment to a store co-manager or assistant manager position. There was no discussion regarding his request, which was eventually rejected and he was terminated because of his age and disability.

Initially, Wal-Mart refused to settle during the EEOC’s pre-litigation conciliation process. However, when the EEOC then filed a lawsuit, negotiations ensued and Wal-Mart settled based on the following terms:
• Payment of $150,000 relief to Moorman
• Training for employees on the Age Discrimination in Employment Act (ADEA) and Americans with Disabilities Act (ADA)
• Training to include instruction on conduct that constitutes unlawful discrimination or harassment
• Training to include instruction on Wal-Mart’s procedures for handling reasonable ADA requests
• Compliance reports to the EEOC regarding the consent degree
• Notice posted to employees about the settlement

At the first sign of serious employment problems, it is wise to consult with an experienced employment litigation attorney. Stephen  D. Hans & Associates has represented small and mid-sized businesses for more than 20 years in issues involving employment disputes, including discrimination allegations.

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