by Stephen D. Hans | Feb 10, 2016 | Business Attorney, HR Guidelines
As an employer, you may wonder where to draw the lines as far as monitoring employees’ phone calls at work. Certainly for quality control purposes, it makes sense to monitor calls with customers or clients. But how do laws limit what you can do? If the call is made while in California and all parties are in California at the time, then CA state law requires you to inform parties when conversations are being recorded. Let’s say as a NY employer, you send a team of sales people to attend a conference in California. You would need to inform them that you’re monitoring calls based on CA state law. According to Privacy Rights Clearinghouse, federal law under the Electronic Communications Privacy Act allows companies to monitor business-related calls without informing about monitoring. What about personal calls? This is where federal case laws places limitations. Based on the outcome of Watkins v. L.M. Berry & Co., if you know the employee is on a personal call, you must quit monitoring the call immediately. However, there is an exception. If you told your employees not to make personal calls from certain business phones, then employees making calls from those phones are at the risk of being monitored. At Stephen Hans & Associates, our attorneys routinely consult with business owners to help put company policies in place so they are in compliance with state and federal laws. Relying on trusted legal guidance is simply part of doing business in today’s world....
by Stephen D. Hans | Jan 27, 2016 | Business Attorney, Employment Discrimination
New York Employment Defense Attorney talks about Non Discrimination Act Knowing what you can ask and must not ask employees or job applicants is vital for businesses. With all the information available on the internet today, gathering information may seem like the natural thing to do. However, there are lines you must not cross. The Genetic Information Nondiscrimination Act of 2008 (GINA) is a relatively recent ant-discrimination law. According to GINA, employers, employment agencies and labor organizations do not violate GINA when acquiring medical information about an employee’s disease or disorder that is not genetic information. A recent settlement with the EEOC provides an example of what is considered a GINA violation. Joy Mining Machinery settled with the Equal Employment Opportunity Commission (EEOC) regarding a lawsuit where the company requested family medical history on its pre-placement form. The form asked employees whether they had a family medical history for “TB, Cancer, Diabetes, Epilepsy and Heart Disease.” While these questions are routine for doctors, not only are employers prohibited from asking for such medical history, they are also not allowed to purchase genetic information about applicants or employees except under narrow exceptions. The agreement Joy Mining entered into as part of the settlement included considerable equitable relief and prohibition from unlawful retaliation. The company agreed not to inquire about medical genetic information, to train its management and HR employees regarding GINA, and the EEOC will monitor compliance with the settlement provisions. At Stephen Hans & Associates, our attorneys counsel company owners, their managers and HR personnel regarding GINA and other anti-discrimination laws. With legal issues, many gray areas exist, and...
by Stephen D. Hans | Sep 25, 2015 | Business Attorney, Employment Defense Attorney
Issues Per Se Encountered with NY Labor Laws New York, Queens and the surrounding boroughs Per Se is a popular, exclusive restaurant located at the Time Warner Center at Columbus Circle. Known for its Nova Scotia lobster, foie gras, caviar and truffles, Per Se caters to guests who pay for luxurious dining at a prix fixe of $310 per dinner. In addition, for private dining the restaurant requires a 20 percent service fee. In 2015, The New York Times reported that the restaurant became subject to a New York State Attorney General’s Office investigation. The investigation revealed that the restaurant had misrepresented its private dining fee as gratuities for servers. However, servers did not receive tips from the fee. Through a settlement reached with the Attorney General’s Office, Per Se agreed to pay $500,000 to the employees affected by the restaurant’s violations of state labor law. Another aspect of the agreement was that the restaurant would train the staff members responsible for dining events so they understood the labor laws and they would make it easy for employees to lodge labor law complaints. The agreement also required that the restaurant designate a compliance officer to monitor labor practice compliance. In essence, the Attorney General’s Office decided the restaurant had misled customers who thought they were tipping the staff, and state law prevents this type of misrepresentation. This is not the first high profile Manhattan restaurant to agree to similar settlements. Restaurant owners of Del Posto agreed to settlements in 2012 where they paid $1.15 million to current and former employees who complained about tipping and overtime violations. They also...
by Stephen D. Hans | Jul 29, 2015 | Business Attorney, Employment Discrimination
As a business owner, have you heard your manager claim that someone is too old to hire for a particular job? Or, have there been discussions that a younger person would be a better candidate for any number of reasons? This line of thinking is something to watch out for because it very well may fall under age discrimination and put you at risk for an employment dispute or lawsuit. Recently, the largest rent-a-car company in the nation, Enterprise Holdings Inc. settled a claim against its subsidiary Enterprise Rent-A-Car Company of Los Angeles. The Equal Employment Opportunity Commission (EEOC) filed charges alleging that the Los Angeles location in Burbank, California denied 10 job applicants positions between 2008 and 2011 based on age. According to the EEOC, all of the applicants were age 40 and older, but the company hired younger less qualified candidates instead. The EEOC found that the company hired no applicants over 40 into their management trainee position during this three-year period. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination of persons who are 40 or older when hiring or promoting employees. The company disputed the allegation and argued that it failed to hire the older applicants because they were less qualified. However, rather than pay the expenses of litigation, Enterprise Rent-A-Car of Los Angeles settled for $425,000 and entered into a three-year conciliation agreement. Besides the monetary payment, conditions of the agreement included: Redistribution of the company’s anti-discrimination policy to all employees in the L.A. metro area EEO training emphasizing age discrimination for all staff Maintenance of an appropriate record-keeping system Public press release...
by Stephen D. Hans | Jul 9, 2015 | Business Attorney
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...
by Stephen D. Hans | Jun 18, 2015 | Business Attorney, Employment Defense Attorney, Employment Discrimination
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....
