by Stephen D. Hans | Apr 28, 2015 | Uncategorized
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...
by Stephen D. Hans | Mar 12, 2015 | Uncategorized
The nuances of religious discrimination and where responsibility falls now lies in the hands of the U.S. Supreme Court. In the case EEOC v. Abercrombie & Fitch Stores, Inc., a Muslim woman named Samantha Elauf applied for a job at the retail store Abercrombie & Fitch. When applying for the position, she was wearing a black scarf over her head called a hijab, and consequently was not hired for the job. Her appearance did not fit the company’s dress code requirements. The EEOC sued based on religious discrimination. Abercrombie & Fitch argued that Elauf made no statement that the head covering was part of her religious practice and for this reason the company was not liable for accommodating her religious beliefs. The EEOC argued that the company should have granted the applicant a religious exemption. The focus of the issues being brought before the Supreme Court lies in whether the employer is liable when an applicant or employee does not inform the employer of the need for a religious exemption. Documents filed for her application did not state Elauf’s religion and the company instructs staff not to ask applicants about their religion. The black scarf violated the company’s dress code because workers were not allowed to wear hats at work and the color black did not receive a high rating when evaluating an applicant for “appearance and sense of style.” The company argues that the burden was on Elauf for not asking about the company’s dress codes or explaining her religious reason for wearing the head scarf. The initial court ruling by a federal judge was in the EEOC’s...
by Stephen D. Hans | Mar 4, 2015 | Uncategorized
When you hire certain employees for on-call services, questions often arise about wages and hours. The Fair Labor Standards Act (FSLA) addresses the issue of on-call employees and when they get paid for their time along with when they do not. Whether the employee has to stay on the work premises during the on-call work period influences whether the worker gets paid for the hours spent on call. The FLSA views the on-premises restriction as the determining factor that the worker must be paid. It does not matter whether the worker is reading a book, chatting on the phone or playing a video game. The factor of being required to stay on the premises takes priority. Sometimes employees are on-call during their free time, but there are no restrictions that employees must abide by other than to be reachable by cell phone. The employees are fairly free to do what they want, whether it involves maintenance around the home, spending time with children or watching television. In this type of situation, the employer would not have to pay the employee for on-call hours. The exception would be when calls from the employer are so frequent that the employee really has no use of free time. Then, once again, you must pay the employee for the on-call hours. Despite the standards set by the FLSA, various court cases have arisen that dispute on-call wages and hours. One noteworthy case was the Mendiola v. CPS Security Solutions, Inc. heard by the Supreme Court in California that ordered California employers to pay for employees’ sleep time. Another case was Jones-Turner v. Yellow...
by Stephen D. Hans | Feb 18, 2015 | Uncategorized
Companies have the right to expect employees to be neat in appearance and follow a company dress code. Some companies require short hair for men and no one gives it a second thought. Cut your hair or lose your job. In most cases, such policies do not violate discrimination laws. However, a recent claim submitted to the Equal Employment Opportunity Commission (EEOC) against Mims Distributing Company challenged the company’s failure to hire a male Rastafarian who had not cut his hair since 2009. He belonged to a religious order that requires men to wear long hair. He applied for a delivery driver position in 2014 and was told to come back after he cut his hair. Even after explaining that his long hair was part of his religion, Mims said they could not hire him because he failed to comply with their company grooming policy. Under Title VII of Civil Rights Act of 1964, employers must accommodate employees’ religious beliefs and the only allowable exception is if doing so creates undue hardship on the company. In this case, the EEOC failed to see that the company would suffer undue hardship and attempted to reach a pre-litigation settlement based on the claim. A settlement was reached and the company agreed to pay $50,000 and agreed to a two-year consent decree to adopt a formal religious accommodation policy and an annual program on Title VII requirements and the prohibition of religious discrimination. It is wise to consult with a lawyer about potential discrimination issues before they lead to claims or lawsuits. If you face discrimination issues as an employer, Stephen Hans...
by Stephen D. Hans | Dec 10, 2014 | Labor Law, Uncategorized, Wage and Hour
Business owners can get themselves into trouble when not understanding wage and hours laws. What appears to be a bright idea that cuts corners and saves money is sometimes a violation that leads to costly consequences. The Fair Labor Standards Act (FLSA) establishes minimum wages and standards for overtime pay, and federal enforcement falls under the United States Department of Labor’s Wage and Hour Division. Some common wage and hour pitfalls that a NY employment litigation lawyer can help you avoid include: Voluntary work hours. Even though employees work off the clock voluntarily past their scheduled work hours, they must receive overtime compensation for that work done. Documenting all employee work is necessary to protect your rights as an employer, and any work exceeding 40 hours, even though not at the employer’s request, must be paid. Travel time. When your employees travel as part of the job, calculating work time and overtime pay can be challenging. By consulting with an experienced employment litigation lawyer, you can receive legal advice about travel policies that comply with wage and hours law. Employee misclassification. Business owners must classify employees based on their job duties and hourly wages or salaries. Salaried employees generally do not receive overtime pay, whereas hourly employees do. The types of duties the employees perform are the basis for classifying an employee and in particular whether the duties include management. Classifying an hourly employee as a manager when the employee has no management responsibilities is misclassification, which can be subject to disputes and claims or lawsuits. Our attorneys can help you ensure your employees’ classifications fall within the letter...
by Stephen D. Hans | Aug 21, 2014 | Uncategorized
Queens NY Employment Defense Attorney The Family Medical Leaves Act (FMLA) grants the right to mothers and fathers to take up to 12 weeks off for maternity or paternity leaves so they can spend time with a newborn. As an employer, understanding your obligations under this law can help you avoid discrimination disputes. Recently, the New York Post reported that a gay man sued his employer, ASMALLWORLD, for retaliating against him for taking a paternity leave. ASMALLWORLD is a private website, by invitation only, for socially prominent business owners and individuals. When Tonny Uy’s daughter was born in 2012, he requested a paternity leave. The employee handbook allowed 40 days of paid leave for a newborn baby. Prior to asking for the leave, the company considered him a model employee. Initially, the company was unwilling to grant the leave until he referenced the company rule. Tonny stated that the supervisor’s attitude toward him changed after the leave. She became critical of his job performance. Months later he was told that because of budget cuts, his job was being reduced to part time, and the company terminated him. However, three months prior to his termination, the company issued a new handbook that did not provide for paid family medical leaves. Shortly after he left the company, he discovered that the company made his replacement a full-time employee. Tonny sued based on gender discrimination. He claimed that female employees had no problem being granted maternity leaves, but his treatment arose out of the fact he was male and seeking a paternity leave to spend time with his newborn child. The company...
