Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
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Hairstyle Discrimination in the Workplace
by cjleclaire
Jun 19, 2019 | 134 views | 0 0 comments | 20 20 recommendations | email to a friend | print | permalink

Are Your Company Policies Compliant with Hairstyle Discrimination Law?

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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Earned Safe and Sick Time Act (ESSTA) Proposed Amendments
by cjleclaire
Jun 19, 2019 | 135 views | 0 0 comments | 12 12 recommendations | email to a friend | print | permalink

Will NYC Add Personal Time and Expand Employee Protections?

The NYC Council is considering expanding ESSTA to include paid “personal time” for employees. Employees could use personal time for any reason. In addition, the employee would not have to document the reason for extended paid time off work.

If Passed, What Are the Provisions of the New Bill?

According to the National Law Review, employees and non-agency employed domestic workers, who work more than 80 hours in a calendar year, are eligible. They could earn one hour of personal time for every 30 hours worked, up to a maximum of 80 hours per year. Currently, ESSTA provides eligible employees with sick and safety time. Personal time would be additional.

An employer could count the unused 80 hours from a previous year for the current year, establishing the maximum time as already earned. However, additional time would not keep accruing year after year. ESSTA applies to employers with five or more employees, and the personal time would apply to employers of this size as well. The exception would be domestic workers who would be entitled to be paid for personal time for any size of employer.

What Employers Would Remain Unaffected by Personal Time?

Employers who already provide paid vacation or other paid time off would not have to pay for personal time. The only requirement is that the paid time off could be used in the same way and under the same conditions as personal time as covered by the new law.

Employees Would Have Expanded ESSTA Protections for Leave Use

Currently ESSTA allows employers to restrict the use of earned time for up to 120 days. However, under the new bill, employers could only restrict use for up to 90 days after the employee began employment.

Employees would have expanded protection against retaliation. To prove retaliation, employees would only have to show that the protected activity under ESSTA was a “motivating factor for adverse employment action.

Employers could receive penalties of up to $500 for each employee violation of the new law. All civil penalties could also apply on a per employee basis.

The NYC corporation counsel would have the right to investigate potential ESSTA violations and bring civil actions against employers to enforce the law.

Our attorneys at Stephen Hans & Associates will continue to stay abreast of further developments regarding this bill.

 

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Pre-Employment Testing for Marijuana and THC
by cjleclaire
Jun 03, 2019 | 5032 views | 0 0 comments | 2174 2174 recommendations | email to a friend | print | permalink

Drug Testing: New York City ‘s New Law

A ban on pre-employment testing for marijuana and THC recently became law in New York City. Pre-employment testing for marijuana and THC had long been an accepted standard in the employment process for certain industries. However, the legal landscape is changing. With the legalization of medical marijuana (and recreational marijuana in certain states), employers must re-evaluate certain company policies. New York is no exception.

On May 10, New York City passed a law that prohibited employers, labor organizations and employment agencies from conducting pre-employment testing for THC. THC is an active ingredient in marijuana and cannabis. The law goes into effect in one year, on May 10, 2020. This time interval provides NYC employers with time to prepare.

Industries Exempt from the Ban on Pre-Employment Testing for Marijuana and THC

According to JDSupra, industries that are safety-sensitive are not subject to the new law. Some of these industries include:

  • Police and law enforcement positions
  • Jobs requiring OSHA certification or construction safety training under New York state laws
  • Commercial driver’s license positions
  • Positions involved with the supervision or care of children, medical patients or vulnerable persons
  • Positions capable of significantly impacting the health or safety of employees or the public

Employees applying for state or federal jobs would still be subject to pre-employment drug testing. This would include state employees, truck drivers, pilots or contractors.

The Reason for the Ban on Pre-Employment Testing

Legislators considered the practice discriminatory for job applicants. Washington D.C. has also passed a law that prohibits employers from testing for marijuana before extending a job offer. The NYC law is more comprehensive because at no point prior to hiring may the prospective employer require the drug test.

However, once the company hires the applicant, then the individual is an employee. Companies can test for drugs if an employee appears to be under the influence of marijuana while working.

Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employers. We also represent business owners in employment litigation

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Should You Hire Interns?
by cjleclaire
May 23, 2019 | 2648 views | 0 0 comments | 805 805 recommendations | email to a friend | print | permalink

New York Laws that Govern Paid and Unpaid Interns

Some businesses hire interns or take on unpaid interns. This may seem like a good idea, and the costs of paying an intern are usually less than a regular worker. However, if taking on an unpaid intern, it is vital that the business owner understands the requirements.

NY law defines the rules that differentiate an employee from an unpaid intern.

If the employment relationship does not meet all the 11 criteria for an unpaid intern, then the employer must pay the intern based on minimum wage law.

NY Law for Hiring Unpaid Interns

Under New York Labor Law, the 11 criteria are as follows:

  1. The training must be similar to training in an educational program.
  2. The training is for the intern’s benefit. An example would be that the academic institution would give the student credit for the internship. Any benefit to the employer would be incidental.
  3. The intern does not replace regular workers and must work under close supervision. When interns receive the same supervision as other employees, it indicates an employee relationship and not an intern relationship.
  4. The employer does not gain an advantage from the intern’s work. In fact, the intern may sometimes actually impede the business’s operations.
  5. Once the internship concludes, the intern is not necessarily entitled to a job.
  6. The intern receives written notification about not being paid any wages.
  7. Persons who supervise the intern must be competent, knowledgeable and have adequate experience to meet the educational goals and requirements of the training program.
  8. Interns do not receive employee benefits (i.e. health and dental insurance, discounted or free goods or services or pension/retirement credit).
  9. The intern is receiving general training for the type of industry or business. The intern is not receiving training for a specific job with the employer who is offering the program.
  10. The employer uses a different screening process to acquire an unpaid intern than the process being used to hire employees. The process is based on an educational program and not a job.
  11. The advertisements, postings or solicitations for interns focus on education rather than employment.

If you have concerns about hiring interns, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in all types of employment related disputes.

 
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Biometrics and Employee Identification
by cjleclaire
May 20, 2019 | 3558 views | 0 0 comments | 730 730 recommendations | email to a friend | print | permalink


New York City Has Proposed a Biometrics Privacy Law

Biometrics is a new technology identification system being used by a variety of industries for various purposes. The primary means of identification include:

  • Fingerprints
  • Handprints
  • Retinal scans
  • Facial recognition
  • Iris scans

Businesses have started using biometrics for time clocks, for entry to secure areas and to login to phones and computers. To this degree, biometrics directly relates to employment situations.

States with Biometric Privacy Laws

While new technology is often uncharted territory from a legal perspective, three states have already adopted biometric privacy laws: Illinois, Texas and Washington. What the laws have in common is requiring consent before collecting biometric information. Illinois law is the most restrictive and requires employers to destroy the employee’s biometric information after a certain period of time if no longer employed by the business.

New York City Proposed Biometric Privacy Law

The National Law Review published an article in January 2019 that described the proposed bill under consideration by the New York City Council. The bill would require businesses to give notice to customers if they are collecting biometric identifier information, and it included a provision that if a person’s information was collected, retained, converted, shared or stored in violation of the law, the person had the right to take legal action.

Under the proposed NYC law, business owners using biometrics would be required to do the following:

  • Post a clear and conspicuous sign in plain language that explains the business is collecting, retaining, converting, storing and sharing biometric information.
  • Business must also make the following available online:
  • How long they are retaining or storing the information
  • The type of biometric information collected
  • Purpose of the collection
  • Privacy policy regarding biometric information
  • Whether they are sharing information with third parties

At this point, employers should be aware of the fact that a biometric privacy law has been proposed. Currently, NY State Labor Law Section 201-a states that unless allowed by law, no employer can require a person to be fingerprinted as a condition for securing employment or continued employment.

Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employment. We represent business owners in employment litigation matters.

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What is the Gender Expression Non-Discrimination Act (GENDA)?
by cjleclaire
May 20, 2019 | 2752 views | 0 0 comments | 637 637 recommendations | email to a friend | print | permalink

New York Passed GENDA in January, 2019

With the passage of GENDA, LGBTQ youth and transgender individuals have protection against discrimination and harassment based on New York’s Human Rights Law. In addition, criminal offenses based on gender identity will now fall under the state’s hate crimes law.

Facts About the New Law

GENDA also protects youth against “conversion therapy.” Conversion therapy is a practice that attempts to change a person’s sexual orientation from homosexual to bisexual or heterosexual through the use of psychological or spiritual interventions. Mental health professionals have long known that therapy directed toward changing gender orientation puts patients at risk in terms of their health.

The new law reinforces regulations put in place by the New York Governor Cuomo in 2016, which restricted the use of conversion therapy for minors.

The bill for Gender Expression Non-Discrimination Act (GENDA) had been debated in the state legislature for 16 years, passing the Assembly a number of times and only recently passing the Senate.

What Does GENDA Mean for Employers?

It makes gender identity or expression a protected class in the same way that race, ethnic origin, age, sex, religion, disability and other discrimination categories are protected classes. Discrimination based on gender identity or expression is illegal in the workplace.

It is important for employers to understand the legal definition of this protected class:

The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender. (Legislation.nysenate.gov)

As an employer, you should update your handbook, policies, and training materials to comply with the new law.

Note that inquiring about gender identity or expression during a job interview may also be viewed as discriminatory in the same way that questions about other protected classes are considered discrimination.

If you have concerns about GENDA, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in employment related disputes.

 
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Are Cashless Restaurants Legal?
by cjleclaire
Apr 24, 2019 | 6548 views | 0 0 comments | 347 347 recommendations | email to a friend | print | permalink

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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Facebook Advertising Algorithms Allowed Advertisers to Discriminate
by cjleclaire
Apr 24, 2019 | 7265 views | 0 0 comments | 937 937 recommendations | email to a friend | print | permalink

In November of 2018, we wrote a blog about allegations that Facebook faced in ad discrimination lawsuits against women.

After 18 months of negotiations, Facebook recently reached a settlement that included paying $5 million. According to USA Today, Facebook primarily derives its income from advertising, which comprises most of the $56 billion in revenue earned last year. Their settlement incorporated provisions for aggressive oversight and their commitment to removing categories from the Facebook platform that enabled advertisers to discriminate based on protected classes.

Not only must Facebook deal with lawsuits, it also must deal with investigations by government entities. The State of Washington conducted an investigation of its ad platform that lasted 20 months, and the company settled this issue in July. The Department of Housing and Urban Development (HUD) is also conducting an investigation.

Ad Platform Allegations

The company’s ad platform contained targeting tools that advertisers could use to focus advertising on specific demographics. However, in areas such as jobs or housing and development, ad targeting enabled Facebook clients to discriminate and not send ads to certain groups of individuals. They could exclude individuals over the age of 40 (age discrimination) or those in particular ethnic or racial groups, such as African Americans, Hispanics and Jews and individuals of a particular sexual orientation.

Advertising that promoted credit cards, renting, housing or job interviews could exclude protected classes and deny them the same opportunities as other demographics.

Settlement Details

Although plaintiffs reached a settlement with Facebook in various lawsuits, they have continued to pursue legal action against the companies that initiated the discriminatory advertising.

Facebook’s settlement terms include having the National Fair Housing Alliance, the ACLU and the Communication Workers of America meet with the company twice yearly for three years to monitor progress. They will be able to identify issues by testing the ad platform. In addition, Facebook has agreed to study and evaluate potential prejudice that its algorithms have incorporated into targeting for ads.

Facebook has already eliminated targeting options for certain types of ads, which will no longer incorporate the option of targeting audiences based on age, genre or zip codes.

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Right to Disconnect Bill in NYC
by cjleclaire
Apr 03, 2019 | 5206 views | 0 0 comments | 200 200 recommendations | email to a friend | print | permalink

Should Employees Have the Right to Disconnect from Work After Hours?

In 2017, a “Right to Disconnect” law passed in France, and a similar bill was introduced to the NYC Council last March. It is currently under consideration.

Living in the Information Age where we are “plugged in” to our electronic devices and spend a lot of time responding to electronic communications poses new challenges. Many businesses use texts, emails, websites and various social media outlets for communication, marketing and as a means of doing business. Consequently, the line between work and private life has become somewhat blurred.

What are employers’ rights? What are workers’ rights? Electronic communications are a new evolving area of law. Any time spent working on a job in addition to the standard 40 hours a week is subject to overtime pay for non-exempt employees.

As with any area of emerging law, there are opposing views. As an employer, you must be aware of new laws that could affect how you run your business.

What Terms and Conditions Does the NYC Right to Disconnect Bill Include?

According to the National Law Review, NYC Council hearings have begun.

The proposed law would require employers with 10 or more employees to do the following:

  • Adopt written policy governing the use of electronic devices and other digital communications outside of work hours
  • Establish the usual work hours schedule for each class of employee
  • Establish the categories of paid time off available to employees
  • Prohibit retaliation against employees who exercised or attempted to exercise their right to disconnect

Remedies against violations would include the following fines:

  • $250 for each instance that an employee would be required to access a work-related electronic communication outside of usual work hours
  • Unlawful retaliation would be subject to full compensation lost, $500, and appropriate equitable relief
  • Unlawful termination would be subject to full compensation lost, $2,500, and appropriate equitable relief, including reinstatement

Whether this bill has enough support to pass the NYC Council remains to be seen, but it is wise to stay apprised of what happens. If it passes, numerous businesses would be affected. The fact that the bill has been proposed is indicative of an issue that may currently exist with employees who want to keep their non-work and work schedule separate.

If you are an employer with questions or concerns regarding employment law issues, our attorneys at Stephen Hans & Associates can provide seasoned legal guidance.

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NY DOL Withdraws Predictive Scheduling Decision
by cjleclaire
Apr 03, 2019 | 4550 views | 0 0 comments | 184 184 recommendations | email to a friend | print | permalink

Predictive Scheduling Changes No Longer Going into Effect

Recently, we released a blog about predictive scheduling changes that the New York Department of Labor had proposed putting into effect. Their proposed changes would have required employers to pay employees for schedule changes that involved reporting to work, for an unscheduled shift (not scheduled 14 days in advance), a cancelled shift, and pay for being on call.

However, pressure from employers resulted in the NY DOL withdrawing its decision to move forward with these changes. The predictive scheduling rules would have resulted in additional costs and rigidity that would have been a significant problem for employers.

The most encouraging aspect of this outcome is that employers were able to express their disagreement, and their concerns received attention. It appears that the DOL agreed that the employers’ concerns had merit.

However, the DOL’s change in decision does not preclude future attempts on the part of the NY Legislature to raise the scheduling issue again.

Scheduling Rules that Are Still in Effect

New York State has scheduling limitations and required payments that remain in effect. They include:

  • Spread of hour pay when employees work a split shift or a shift that extends more than 10 hours from the beginning of the first shift through the final shift. The split shift and spread of hours pay is equal to one hour at the minimum wage rate. (NY State Department of Labor)
  • Employees in certain industries must receive split shift payment for working nonconsecutive hours.
  • Employers must provide call-in pay for employees working less than three or four hours
  • Employers may not schedule employees to work more than seven days in succession.

Our attorneys at Stephen Hans & Associates keep up-to-date with wage and hour law and other employment law changes. We are glad to answer your questions. We have decades of experience assisting employers with many different types of employment related issues.

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