Frequently Asked Questions About Job Termination
Deciding to fire or layoff an employee is often a tough decision. Sometimes employees have adverse reactions and retaliate if they believe the termination was unjust.
Does New York State have “employment-at-will”?
What is your responsibility for giving terminated employees their last paycheck?
When you decide to lay off employees, must you give notice of termination?
Employers in the private sector who have 50 or more employees (part-time employees excluded) must provide at least 90 days notice before closing their business. This refers to shutting down a single site of employment that results in laying off 25 or more full-time employees during any 30-day period. Employers must send a WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners. Read More
If employers are doing a mass layoff (excluding part-time employees) but not closing down the business, they must still provide at least a 90 days notice about the layoff when the layoff affects 33 percent of the workforce (at least 25 workers) or 250 workers from a single employment site. Employers must send the WARN notice to employees, their representatives, the State Labor Department and local workforce investment partners. Read More
Author: Stephen D. Hans & Associates
FAQ for Restaurant Owners
For restaurant owners, who are busy running their day-to-day business, New York Labor laws can seem like an added burden. Having access to a NY employment defense lawyer is often vital to navigate the laws and make your business successful.
According to the NY State Department of Labor, here are some frequently asked questions employers often ask:
Can you require employees to wear uniforms?
Yes, you can. What is considered a uniform? Black slacks and white shirts are not uniforms. A shirt with the company insignia or custom-made slacks and shirts would be considered uniforms. If your worker’s pay is minimum wage, then the cost of buying the uniform and taking care of it cannot bring the employee below the minimum wage rate. Employers must either clean and take care of the uniforms or pay their employees to care for them.
Are you limited by the number of hours an employee can work in a day?
Except for children under 18, there are no limitations on how many hours in a day an employee can work. There also are no limitations on how early or late an employer can ask an employee to work. However, in the restaurant industry, an employee must have 24 hours of rest one day in a calendar week. This does not apply to small, rural restaurants.
What are the rules for giving workers meal breaks?
For work shifts of more than six hours that begin before 11:00 a.m. and continue until 2:00 p.m., the workers must be provided with an uninterrupted lunch period of at least half an hour between 11:00 a.m. and 2:00 p.m.
Employers do not have to pay for meal periods, and they do not have to provide other breaks for workers. However, if an employer permits a break of up to 20 minutes, then the employer must count it as work time and pay the employee.
Do You Have Other Questions about NY Labor Laws that Apply to Your Business?
Our attorneys at Stephen Hans & Associates are glad to explain the laws, offer legal guidance, and provide representation for employment dispute issues.
Author: Stephen D. Hans
Matt Lauer: One Sexual Harassment Complaint Led to More
As more women are coming forward to claim sexual harassment, other women are also gaining the courage to come forward. This is the current trend in a variety of sexual harassment cases that are hitting the media. Such appears to be the case in the recent reports about Matt Lauer, long time anchor and host of the “Today” show.
Details About the Matt Lauer Sexual Harassment and His Job Termination
According to Fox News , NBC met with Lauer, an alleged victim and her lawyer to confront Lauer about his inappropriate sexual behavior. Since the news broke, it became apparent there was more than one isolated incident. NBC quickly fired Matt Lauer and stated it was the first time they had heard about the sexual harassment allegations.
People magazine reports that eight women have now come forward regarding inappropriate sexual behavior on Matt Lauer’s part.
Lauer has issued a public apology for his actions and for the people he has harmed, and said that although not all aspects of the allegations were true and some he felt were mischaracterized, there was enough truth in them for him to apologize and feel regret and shame. He said his full time job is now to do what he can to repair the damage he has done.
Actions that Make Lauer’s Instance Stand Apart from Other Recent Claims
NBC News acted quickly on the allegations after discovering them. Matt Lauer did not deny that he engaged in sexual misconduct, but instead expressed his regret and indicated he would take action to repair the damage.
As a business, what is the best approach to take when allegations of sexual harassment arise? If you face sexual harassment issues, seek legal counsel as soon as possible and discuss your concerns so you can weigh your options.
Experienced Legal Counsel When Your Business Faces Sexual Harassment Allegations
At Stephen D. Hans & Associates, P.C., we have decades of experiences assisting business owners with sexual harassment and other employment related issues. Call our Long Island City office at (718) 275-6700 to arrange a confidential consultation.
When accusations of discrimination or harassment emerge, employers should consult with an employment law defense lawyer as soon as possible. Aside from seeking counsel, what actions can you take right away and what mistakes can you avoid?
The American Bar Association suggests avoiding the following mistakes.
- Failing to investigate immediately. Waiting for an employee to submit a formal statement about harassment or discrimination or waiting for witnesses to submit written statements is the most common mistake made by employers. Any investigation delay can make it appear like you’re ignoring the situation or not taking it seriously.
- Inserting cross-examination into the process. Conducting an investigation without bias is important for avoiding claims of unfair investigation against your company, even when you suspect a complainant, witness or the accused individual is lying. A better approach is to ask in a respectful manner that the person explain contradictory statements or ask for evidence that refutes the statements.
- Not maintaining confidentiality. You must keep the investigation confidential along with the information obtained during the investigation. If witnesses suffer backlash from the investigation because their identity is made known or for any other reason, as the employer, you may become subject to claims of retaliation.
- Not interviewing all witnesses with knowledge of the alleged events. The investigator should interview all the witnesses because it will help determine whether information is consistent.
- Failing to make known the company’s policy against retaliation. Retaliation is a common problem, according to the EEOC and comprises about one third of the cases the EEOC handles. It is important to reinforce the company policy by reminding all parties that retaliation will not be tolerated against complainants who make good faith claims. This focus also helps protect you as the employer.
- Failing to conduct a thorough investigation. Overlooking records, such as telephone or cell phone records when they are crucial to an investigation is a common mistake.
- Failing to end the investigation with a conclusive finding. When investigations end with disputed evidence by both sides and nothing is concluded, the investigation is tantamount to no investigation. Some conclusion must be reached based on a preponderance of the evidence. In other words, the investigator must reach a conclusion that it most likely that the harassment did or did not occur.
Put an Experienced Employment Defense Lawyer on Your Side
Employers dealing with harassment or discrimination issues should seek legal advice as soon as possible. Stephen Hans & Associates brings decades of experience to the table in every case we handle.
A number of wage theft lawsuits and settlements have been occurring during the past five years. However, they haven’t received as much media attention as restaurant workers’ fight for higher minimum wages.
As a restaurant owner, you should be aware of what wage theft is and the ways it can occur. Ensure your restaurant managers aren’t engaging in wage theft activities.
Examples of Wage Theft and Related Lawsuits
Large chain restaurants have been subject to lawsuits for reducing hours, not paying proper wages for side work and for misappropriating tips.
Requiring workers to work off the clock is not legal but some chain restaurants have been settling claims that allege they’ve been doing this. The Huffington Post reported about several well-known restaurant chains that settled or paid huge sums in wage theft lawsuits.
Ruby Tuesday settled a case for $3 million in 2014. The restaurant avoided paying bartenders and servers overtime by having them do checklists before or after clocking in for work. They also shaved hour totals down to 40 hours/week when workers went over 40 hours.
Outback Steakhouses settled a $3 million lawsuit to workers claiming that the restaurant required workers to complete pre-shift work before clocking in.
A Papa John’s New York franchise had to pay more than $2 million in overtime rates under the order of New York State Attorney General Eric Schneiderman for rounding down hours worked to the whole number to avoid paying overtime, and for paying workers the “tipped minimum wage” when they mainly did un-tipped work and for not reimbursing employees for the purchase and maintenance costs of bicycles used in deliveries.
Red Robin Restaurants in Pennsylvania paid $1.3 million for requiring tipped workers to share tips with kitchen expeditors when the restaurant was taking tip credits and not paying servers a full minimum wage. Kitchen expeditors had no contact with customers and did not qualify to be paid as tipped workers.
Johnny Rockets had to pay 55 servers more than $570,000 under order of the Department of Labor (DOL) because they required servers to share tips with cooks and dishwashers.
Fourteen TGI Fridays servers received $485,000 to settle claims for having to spend more than 20 percent of their work time doing side work instead of directly relating to customers, which violates the 80/20 rule for tipped employees. Part of this settlement amount was also due to being forced to work off the clock.
Are You Concerned About Wage Theft?
If so, get legal advice as soon as possible. Stephen Hans & Associates is an employment law defense firm and can advise the best course of action for you to take as an employer
As an employer, being knowledgeable about sexual harassment and the types of challenges you can potentially face is to your advantage. With proper insight, you can take preventative measures against having harassment arise in your work environment.
EEOC Study on Sexual Harassment
In 2015, the Equal Employment Opportunity Commission (EEOC) received an estimated 28,000 charges that alleged sexual harassment from employees who worked for private employers or state or local government employers. Read More
Businessman Sexually Harassing Female Colleague
Sexual Harassment Definition and Examples
The EEOC Select Task Force discovered that women who experienced sexual harassment ranged from 25% to 85%. The main difference in responses was because some workers did not label the experience as “sexual harassment.” However, when behavior examples were used, the incident rate rose to 75%. Some examples described a sexual advance and other behaviors pointed to sexually crude terminology or displays (posting pornography for example). The two categories broke down into behavior that was a “come on” or a “put down.” With these types of examples, close to 60% of the women surveyed reported they had experienced harassment.
Based on these statistics, every business should be concerned about preventing sexual harassment.
Stephen Hans & Associates is an employment litigation firm that has assisted small and medium sized businesses with employment law for more than 20 years.