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PUMPING BREAST MILK IN THE WORKPLACE. YOU’RE PROTECTED UNDER FEDERAL LAW!

PUMPING BREAST MILK IN THE WORKPLACE. YOU’RE PROTECTED UNDER FEDERAL LAW!

As a breastfeeding mother, the last thing on your mind during this joyous time should be how and when you are permitted to pump breast milk at work.  However, the cold reality is that many employers don’t have a policy in place to permit pumping, and even worse, some employers discourage new mothers from pumping activities during working hours.  This is illegal and has no place in today’s evolving society norms. As an employer, you have an obligation to create a breastfeeding policy and accommodate your employees.

As of 2010, Section 7 of the Fair Labor Standards Act (FLSA), a Federal statute that protects employees in their workplace, was amended to require employers to provide basic accommodations, such as time, space and other accommodations, for breastfeeding mothers at work. Learn more about what employers are required to provide.

What time accommodation does an employer have to provide nursing employees? Read More

“Reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.

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What space accommodations does an employer have to provide nursing employees?

“A place other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.

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Why do employees who are breastfeeding need time and space for lactation at work?

Health benefits. Breastfeeding is so important for the health of mothers and babies that major medical organizations, such as the American Academy of Pediatrics (AAP), recommend that babies receive nothing but breast milk during the first 6 months of life and continue receiving breast milk for at least their first year. More than 80% of new mothers now begin breastfeeding immediately after birth.1 Breastfed babies are healthier and have lower health care costs. Giving breast milk, rather than formula, helps prevent sudden infant death syndrome (SIDS), asthma, ear infections, type 2 diabetes, and many other illnesses.2 And the longer a mother feeds her child breast milk, the more health benefits there are for both mother and child.2

Biological needs. Breastfeeding is a normal biological process. Breastfeeding employees need breaks throughout the workday to pump because milk production is a constant, ongoing biological process. A breastfeeding mother needs to feed her baby or pump milk about every 3 hours. Otherwise, her body will stop making breast milk. When a nursing mother cannot pump or breastfeed, the milk builds up in her breasts, causing pain and sometimes infection. Removing milk from the breast is a biological need, similar to the need to eat or sleep.

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Why can’t employees pump milk in the bathroom?

Bathrooms are a place to eliminate waste from the body and to wash hands afterward in order to prevent the spread of germs and disease. Breast milk is food and should be handled in the same way other food is handled. No one would be willing to prepare food in a bathroom, and that includes breast milk. Bathrooms are not a sanitary place to prepare and handle food of any kind.

In the past, mothers were forced to use bathrooms to pump because there was no other private space available when it was time for a mother to express milk. Pumping is not something that all moms can do discreetly under a cover, in the way a baby can be breastfed discreetly in public. Breastfeeding mothers need space that is not a bathroom to express milk in a clean and private environment.

Are employers required to pay employees for pumping breaks?

“An employer shall not be required to compensate an employee receiving reasonable break time to express milk for any work time spent for such purpose.” — U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision.

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Does my employer have to create a lactation policy?

stock-photo-mother-breast-feeding-and-huggingCreating a policy helps ensure that all employees have access to the same level of support, no matter what type of workplace they have. A policy helps the company be sure it is complying with federal regulations and also shows support for the health of employees and their families. A policy clearly defines the roles and responsibilities of both supervisors and employees, potentially helping them avoid embarrassment about discussing a personal topic.

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What about New York State laws that protect breastfeeding mothers?

The following summaries the protections available to breastfeeding mothers under New York State Statutes:

  • N.Y. Civil Rights Law § 79-e (1994) permits a mother to breastfeed her child in any public or private location. (SB 3999)
  • N.Y. Labor Law § 206-c (2007) states that employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so.  Prohibits discrimination against breastfeeding mothers.
  • N.Y. Public Health Law § 2505 provides that the Maternal and Child Health commissioner has the power to adopt regulations and guidelines including, but not limited to donor standards, methods of collection, and standards for storage and distribution of human breast milk.
  • N.Y. Public Health Law § 2505-a creates the Breastfeeding Mothers Bill of Rights and requires it to be posted in a public place in each maternal health care facility. The commissioner must also make the Breastfeeding Mothers Bill of Rights available on the health department’s website so that health care facilities and providers may include such rights in a maternity information leaflet. (2009 N.Y. Laws, Chap. 292; AB 789)

We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email: Chris@vdwlawfirm.com, cell phone: (516) 384-6223, office (631) 923-1314.  More information can be found at the website.

Pedestrian Killed in a Recent Hit and Run Accident in North Babylon

How Can Lawyers Help Victims of Hit-and-Run Accidents?

Hit and Run Accident AttorneysHit-and-run accidents occur when a driver causes an accident and flees from the accident scene. However, all drivers involved in an accident involving injury or death must stay at the scene of an accident, whether they caused the accident or not. Also, all drivers involved must file an accident report.

Under New York law, anyone who is party to an accident where injury or death occurs must immediately notify the police. It is a crime to leave the accident scene.

Hit and run accidents can involve an accident between vehicles; or between a vehicle and a bicyclist, motorcyclist or pedestrian.

The Recent Hit-and-Run Accident in North Babylon

According to Newsday, an auto parts delivery van hit two pedestrians in the parking lot of an Auto Zone store on July 29. The store was located on Route 231, near Commack Avenue, and the accident occurred around 1:00 in the afternoon.

When the van struck them, one of the pedestrians got caught beneath the van. However, the driver did not stop, and the van dragged her for about three blocks. When the driver made a right turn, she dislodged from the van. Upon arriving at Good Samaritan Hospital Medical Center in West Islip, doctors pronounced the accident victim’s death. Doctors at the hospital also treated the other pedestrian struck by the van for minor non-life threatening injuries.

Investigators at the scene inspected skid marks but no other details about the accident were released. Police apprehended the van driver, charged him with hit-and-run and took him into custody.

What Can a Hit-and-Run Accident Victim or Their Family Members Do?

In addition to the criminal charges a hit-and-run driver faces, a lawyer can file a civil lawsuit on behalf of the injury victim. In the event of death, the attorney can bring a wrongful death lawsuit on behalf of the family.

If you are involved in a hit-and-run accident and suffer serious injuries, you may have legal grounds to pursue a case. New York hit-and-run accident attorneys can investigate the circumstances surrounding your injury and explain your rights to take legal action.

Why Are Family Responsibilities Discrimination Cases on the Rise?

The Underlying Causes of FRD Lawsuits

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.

NY County Lawyers Association Sued Over Alleged Pregnancy Discrimination

Pregnancy Discrimination

“Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.” Attorney Chris Van de Water

By Jack Newsham, New York Law Journal, August 08,2019

Pregnancy DiscriminationThe New York County Lawyers Association has been sued by a former employee who claims she was taunted in the workplace, had to pump breast milk in the bathroom and was ultimately fired because of her two pregnancies.

The Plaintiff, a fee dispute program administrator, said she worked for the prominent New York bar association starting in 2005 and began facing discrimination once she became pregnant in 2013. The suit, filed Wednesday in Brooklyn Supreme Court, alleges violations of city and state human rights laws and seeks unspecified damages.

The first time she became pregnant, The Plaintiff alleged, she was assigned arduous tasks that she wasn’t assigned before, such as retrieving boxes from a basement. After giving birth, she said, she could initially only pump breast milk in the bathroom and was only given 15 minutes to do so. After complaining, she was given access to a conference room, but it was rarely available for use, she said.

“Both defendants’ managing director and director repeatedly [asked] plaintiff whether she planned on having any more kids and ‘how many babies do you people have!,’ among numerous other snide and degrading remarks,” her suit claims. Read More

Christopher Van De Water of the Van De Water Law Firm, who represents The Plaintiff, said, “Discrimination in the present culture shouldn’t be tolerated under any circumstances, especially in the context of a woman’s pregnancy.”

Representatives for the NYCLA didn’t immediately respond to comment requests.  Davis, who no longer appears on NYCLA’s staff list online, could not be reached for comment.

Different Causes and Types of Bicycle Accidents in New York

Some of the Most Common Causes of Bicycle Accidents

https://www.sacksteinlaw.com/2019/07/17/different-causes-and-types-of-bicycle-accidents-in-new-york/Many different types of bicycle accidents occur in Queens, Manhattan and Nassau County. These are heavily populated areas, and there are numerous bicycles, vehicles and pedestrians on the roads. Consequently, collisions are bound to happen. However, when serious injury results and another party was at fault, legal grounds may exist to pursue a lawsuit to hold the negligent parties accountable.

Despite the increasing numbers of bicyclists, the New York City DOT (Department of Transportation) claims that bicycling has grown dramatically safer. Even so, that does not mean that bike riders are free from danger.

Bicycle Accidents Causes

The following types of situations can cause bike accidents:

  • Dooring. “Dooring” describes a bike accident where drivers or passengers are exiting their cars and open the door into a bicyclist, who is passing by the vehicle. The unexpected door opening can strike riders, throw them off their bikes and cause bikes to crash or flip over. Being thrown into oncoming traffic is a serious concern. Also, if cyclists try to avoid the door, there is the danger they may swerve into oncoming traffic. A dooring accident can result in severe injuries or fatalities. The fault for the accident lies with the driver or passenger who failed to look before opening the door.
  • Failure to Yield the Right of Way. Who has the right of way  — the bicyclist or the vehicle or the pedestrian? It is crucial to understand right of way laws in New York. For example, in crosswalks, pedestrians have the right of way. Bicyclists must use a bike lane or the right shoulder near the curb, but they may move farther left (three to four feet) to avoid hazards with parked cars. It is illegal for a car to stop or stand in a bike lane.
  • Road defects and potholes. Poor road conditions can make bicycle riding dangerous. Hitting a pothole can throw the bike and rider up into the air or cause the biker to lose control and suffer injury. Local governments are responsible for keeping the roads in good repair and making them safe for traffic.

Experienced NY Bicycle Accidents Attorneys

When determining whether grounds exist for a lawsuit, attorneys investigate to establish who was at fault for causing the bicycle accident. When injuries are serious or result in death, a bicycle accident lawyer can often help you recover compensation for damages.

What Employers Should Know About Time Off to Vote

The NY State Legislature Passed an Election Law

What Employers Should Know About Time Off to Vote Time off to vote for employees was part of the legislation that the NY State Legislature passed in April of 2019.

The name of the law is the New York State Election Law and it went into effect immediately.

What Does the Time Off to Vote Mean for Employers?

Based on the new law, employers must allow their employees who are registered voters up to three hours of time off to vote. The employee will lose no pay for the three hours and this applies to voting at any election.

Guidelines for the Time Off

The employer must allow the time off only at the beginning or end of the employee’s work shift. The employer either designates the time or the employee and employer can mutually agree on the time.

The employee must notify the employer about taking time off to vote two working days before the Election Day.

Posting a Notice of the NY State Election Law

Employers must post in the workplace a notice that states the provisions of the NY State Election law. They must post it conspicuously no less than 10 working days before every election. In addition, they must keep the notice posted until the election polls close that day.

What Might Have Prompted the New Law?

According to an article in The New York Times, the mid term elections in 2018 in New York favored incumbents. New York was the only state in the country that held separate state and federal primary elections. Two separate voting days made it more difficult for voters to turn out to vote. In addition, New York does not have the options of early voting, voting by mail, nor same-day voter registration.

By comparison, some of New York’s voting laws were much more restrictive than laws in other states.

The New York State Election Law is one response taken by a more liberal legislature to effect change. More changes may be on the way.

At Stephen Hans & Associates, our attorneys work to stay up-to-date with legal changes. We like to let employers know about them so they can avoid employment law issues. We also represent business owners in employment litigation.

What Is the Difference Between Anxiety and Depression?

Do You Feel Anxious or Depressed?

Do You Feel Anxious or Depressed?It’s no surprise people often wonder about the difference between anxiety and depression because many people who suffer from anxiety also suffer from depression, and vice versa. The two mental conditions frequently overlap, and in certain instances, the medication prescribed or treatment used to address one will also be helpful with the other.

Anxiety and Depression  — The Differences

In a Psychology Today article, Gregg Henriques, Ph.D. describes anxiety and depression as negative emotional-mood states.

Anxiety

Anxiety is a reaction to a perceived threat or potential loss, and it prepares you to take defensive action.

Perhaps a situation has arisen that is similar to one in the past. For example, let’s say you are middle aged and find yourself in the dating world again after a recent divorce. Dating made you anxious as a young adult, and that familiar anxiety is now rearing its fearful head again. Or, perhaps you are interviewing for a new job. Job interviews always made you nervous because if the interview didn’t go well, you might not get the job. Your nerves are frazzled, your palms are sweating, and you momentarily have a slight stutter as you answer the interviewer’s questions.

Everyone experiences anxiety from time to time, and certain situations may stand out as obvious triggers. However, what if you feel anxious, but there seem to be no stressors in your life and you’re baffled about why you feel anxious? Or, what if some days have passed and your anxiety won’t go away?

It might be time to speak with a psychotherapist and get some help.

Depression

In contrast with anxiety, depression is a not so much a state of worry and defense against something threatening. It feels more like a state of emotional shutdown. Yes, the threat or loss might exist, but depression makes you lose interest in life or people, and makes you feel sad, angry or worthless. You want to withdraw from life.

Again, everyone has days where they feel blue or down, but the kind of depression being discussed here is of a longer lasting variety. You may want to crawl into your bed and sleep for weeks. Feelings of lethargy sap all your energy, and daily tasks or speaking with people appears overwhelming.

If these descriptions of anxiety or depression sound familiar, we have counselors at Affordable Therapy Los Angeles, who can work with you. We’ll help you identify the source of your anxiety or depression. Gaining insight through treatment can assist you in relieving this problem.

Why Working Off the Clock Can Be a Liability

Why Working Off the Clock Can Be a LiabilityWorking 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”?

Why Is Working Off the Clock Illegal?

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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.

What Types of Swimming Pool Injuries and Accidents Can Occur?

Avoiding Accidents at Swimming Pools

https://www.sacksteinlaw.com/2019/07/10/what-types-of-swimming-pool-injuries-and-accidents-can-occur/Swimming pool injuries most frequently occur when the weather is hot. During the summertime in particular, going for a swim has been a favorite pastime.

Although swimming is a lot of fun, safety is also an issue. One of the best preventions against accidents is understanding the risks involved with swimming pools.

Types of Swimming Pool Injuries and Accidents

Diving Injuries

When diving into a swimming pool, swimmers may not give a second thought to how deep the water is. Yet, diving into water that is too shallow can cause serious injuries. Diving into shallow water can cause brain, head or neck injuries. In serious cases, injuries can lead to brain damage or paralysis. In addition, if the diver is knocked unconscious, he or she could drown.

Whenever diving into a pool, it’s vital to notice the depth of the water beforehand.

Pool Drain Injuries

Swimming pools have drains as part of their filtering systems to keep the water clean. Many people, and in particular children, may not know to stay away from the drains. Swimming pool drain injuries can be severe and are not that uncommon. The Journal of Emergency Medical Services (JEMS) reported that certain drains exert up to 300 pounds of pressure per square inch. While most drains have tightly fastened covers to secure them, an improperly covered drain is capable of causing serious injury or death.

The drain’s suction is so strong that it can tear organs from a body. Unfortunately, this has happened in drain accidents. Read More

Slip and Fall Injuries

Many pools have signs that say, “No Running.” Areas around the pool often get wet. Water drips off people’s bodies and swimming suits as they leave the pool. As a result, wet surfaces tend to be slippery, and running can increase the chances of slip and fall injuries. Read More

If you are involved in a swimming pool accident and suffer serious injury, you may have legal grounds to pursue a case. New York swimming pool injury attorneys can review the circumstances surrounding your injury and discuss the prospects of taking legal action.

Bikini Baristas – Constitutional Law and Female Anatomy Over Coffee

Bikini Baristas,Hillbilly HottiesThe City of Everett, Washington, got very upset with the so called “Bikini Baristas”, and passed local laws which criminalized the clothing they wear as “lewd conduct”, and enacted a dress code for “Quick-Service Facilities,” which was clearly designed to apply to the drive through coffee-stands.  In fairness to the City, the “bikinis’ were really only pasties and g-strings, instances of clearly lewd conduct, as well as customer-barista physical contact, had been documented, and one sheriff’s deputy had even been convicted of helping an owner evade the undercover officers in exchange for sex acts. Although the city police were clearly able to make arrests for the acts that violated the existing public lewdness laws, the city complained that the resources required for undercover investigation of these businesses could be better spent elsewhere and that the new ordinances would make enforcement much easier.

 

Bikini Baristas ,hillbilly hottiesThe Ordinances and the Baristas’ Arguments:  Baristas working at “Hillbilly Hotties” sued the city, challenging the constitutionality of prohibiting “more than one-half of the part of the female breast located below the top of the areola,” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast” as well as the dress code provision requiring the covering of “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).”They claimed portions of these ordinances were unconstitutionally vague. In their complaint, the Baristas pointed out that the length of a common woman’s shirt is often short enough that stretching or bending would reveal part of her back or stomach, violating the dress code, Complaint Doc. 1 ¶4. They also argued that in order to enforce the law, police would have to require suspects to expose their entire beasts in order to measure the top of the areola to determine whether “more than one-half of the part of the female breast located below the top of the areola” is covered. Women with larger areola or breasts are subject to different restrictions than women with smaller areola or breasts and accurate determination would be impossible without such exposure. Id. at  ¶¶31-3.

The Baristas Win the First Round:

The District Court judge1 found that the ordinances were probably not valid because they were constitutionally vague, especially because the term “bottom one half of the anal cleft” was not well-defined or reasonably understandable, and that the ordinances failed to provide clear guidance and presented risks of arbitrary enforcement. The District Judge reasoned that their choice of clothing was “communicative”, and conveyed messages of particularized values, beliefs, ideas, and opinions; namely, body confidence and freedom of choice, and that these messages are understood by customers. The City argued that the “message”, if any, was not sufficient to qualify for free speech protection, and was understood only as a sexual image.   The District Court ruled that the constitutional challenges to the ordinances should be analyzed according to the “intermediate scrutiny” standard2. Read More

The Baristas Lose on Appeal

The appeals court3 viewed the case much differently, reasoning was as follows. First, since the terms “anal” and “cleft” are easily found in the dictionary, the public would not be left to guess about the meaning of the term, which is reasonably ascertainable to a person of ordinary intelligence. The second part of the vagueness test concerns whether the criminal “lewd conduct” provisions were amenable to unchecked law enforcement discretion. The appellate court recognized that some degree of law enforcement subjectivity might be involved in close cases, but the mere fact that there will be close cases does not make a law unconstitutionally vague. Where it is a criminal law, the defendant charged with committing the crime will always be entitled to proof beyond a reasonable doubt, which is sufficient protection in those close cases. Makes a law vague is not that it might be hard to determine whether the incriminating fact it establishes has been proved, but rather the indeterminacy of precisely what that fact is. A good example of a vague statute is a ban on the assembly of three or more persons on city sidewalks if they conduct themselves in a manner annoying to passers-by. Criminalizing conduct that is annoying is constitutionally vague, because what is annoying to one person may not be to another. Read More

P.S. – Nude and Semi-nude Dancing

It should be noted that nude and semi-nude dancing has been left to be expressive conduct entitled to at least some First Amendment protection, but the Baristas did not claim that they were covered by this. The City of Everett allows nude dancing, but it is subject to the adult entertainment licensing and zoning restrictions, which the owners of the Bikini Barista establishments chose not to comply with.

[1] U.S. District Court for the Western District of Washington, Edge v. City of Everett, Case No. C17-1361-MJP, District Judge Marsha J. Pechman.

[2] Depending on the nature of the speech, different standards are used to determine the validity of the government interest in restricting the speech and the extent to which the speech may be prohibited or limited. These analyses can become complex and go beyond the scope of a blog post like this.

[3] U.S. Court of Appeals for the Ninth Circuit, Edge v. City of Everett, 2019 U.S. App. LEXIS 19930.

 

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