Could You Be Liable If a Customer Harasses Your Employee?
Employers must address sexual harassment by customers in addition to harassment by other employers. Courts can hold employers accountable if they fail to take reasonable actions to prohibit a hostile work environment and protect an employee. While the “customer is always right” is a maxim that people in business try to follow, under these circumstances the customer is not right.
EEOC v. Costco Wholesale Corp.
A case in point is the EEOC v. Costco Wholesale Corp. case. The U.S. Court of Appeals for the Seventh Circuit reviewed the case and in 2018 ruled in favor of the EEOC.
A customer stalked a Costco employee for over a year. The employee reported the stalking to her managers. However, because the managers did not believe the harassment was severely sexual in nature, they did not take stronger actions quickly enough to prevent it. After some time, Costco did tell the customer to leave the employee alone. In fact, Costco eventually banned the customer from the store where the employee worked. However, these actions were taken after constant encounters that lasted over more than a year where the customer repeatedly stalked the employee. He constantly asked her personal questions, touched her on several occasions and then came in disguise to observe her and later on, even took a video of her.
After her third interaction with the customer, the employee filed a police report about the stalking. Subsequently, the police called the Assistant General Manager about the report, and as a result he yelled at the employee and told her to be nice to the customer. The police interviewed the customer but did not charge or arrest him. Even so, a report was filed about the customer’s stalking. More than a year later, after numerous encounters, the employee secured a Stalking No Contact Order against the customer that prohibited him from approaching her at her residence or place of employment for 21 days. When the order expired she renewed it, and the order was in effect for a year.
After more than a year of stalking, the employee went on medical leave, at which point the general manager investigated and sent the customer a notification that they were aware of the employee’s complaints. The general manager directed the customer to shop at a different Costco store, one that was equidistant from his home.
The Appellate Court’s Finding
Under the Illinois Stalking No Contact Order Act, the appellate court concluded that the customer had violated the act through his behavior and had caused “emotional distress” and “significant mental suffering, anxiety or alarm.” The customer had in fact also violated the no-contact order. (Keep in mind that New York also has a stalking law that prohibits stalking.)
Costco did not argue that it failed to take reasonable steps to bring the harassment to an end, and therefore, the court did not address it.
Our attorneys at Stephen Hans & Associates have decades of experience representing employers in work-related issues.
Avoiding Scams that Target Seniors
With a new wave of technology, scamming is at an all-time high, especially for senior citizens. In what has become known as an “imposter scam” or a “grandparent scam,” cons pretend to be a loved one in need, such as a grandchild. As any good grandparent knows, they will immediately help a loved one in need, usually sending cash via mail. However, it is just a scam. According to the Federal Trade Commission, up to 25 percent of people over 70 sent cash to loved ones when they were in need. Furthermore, the median amount of money sent was an astounding $9,000. However, this can be avoided. The first step to ensuring the safety and actual needs of your family members is to call them back, immediately. Call their direct phone number and simply ask “Are you actually in trouble.” This might seem easy, but it is often difficult to think rationally when you believe a family member is in trouble. Thus, you should look out for red flags associated with scams. These red flags include the scammer asking for personal information, i.e. credit card or Social Security numbers, passwords, or account logins. There are many forms of scams these days, such as Phishing Scams, Prescriptions Scams, Email Fraud, and Lottery Scams. We have outlined these for you so you can best safeguard yourself from dangerous financial situations.
The first and most common scam is known as a phishing scam. Phishing scams are usually fake calls made to seem legitimate, such as posing as a representative of a bank or Medicare. For instance, scammers pretend to be health insurance representatives, but they’re really fishing or “phishing” for your personal information, such as your Social Security number or Insurance ID. By gaining your information, scammers are able to bill various services, such as Medicare, for fake purposes and then keep the money that is sent. One way to combat these phishing scams is simply by hanging up. By hanging up, you can then contact the service that is allegedly contacting you to verify it is the actual company. Furthermore, it is imperative you hang up on any individual who is asking for personal information over the phone. There is virtually no situation in which you will receive a call from a legitimate company and must provide your login passwords or social security number.
Prescription Drug Scams
Another common scam involves fake prescription drug scams. These have become rampant on the internet with the rise of medicine prices throughout the country. Read More
As previously stated, the rise of technology has created a multitude of new ways for scammers to operate. One of these ways involve email scams. Email scammers often try to scare you by saying something was stolen or that you have won a prize. They will even provide links for you to find out what was “stolen” or what you have “won.” In order to avoid this scam, you should never click a link provided. Rather, you should go to the actual company’s website and sign in how you normally would. Some common signs of a scam email are a blank “to” field, bad grammar, or poor spelling. Finally, be wary of emails that simply say “Hello.” The majority of genuine emails will include your name, not just a blanket statement saying “Hello.” Additionally, you should consider installing an antivirus software on your computer. This will help prevent damage in case a malicious email is opened by mistake.
Finally, everyone, senior citizens and millenials alike, should be wary of lottery scams. This scam usually involves a mailing, via email or traditional mail, saying you have won the lottery and by submitting a flat fee of x dollars, you can claim your money. Read More
Information obtained by an article written by Kristen Castillo; Castillo, K (2018) ‘How to outsmart scammers’, Creators, Special-Sections, Golden Years
Selling Links from High Profile Websites and Other Unethical Practices
Internet ethics is coming into the media spotlight as an increasing number of deceptive practices have arisen. There’s no question that the Internet is a new frontier. Just as the Old West had gunslingers and lawless characters, you find the same thing happening today with the worldwide web.
One of the most recent scams is selling links from high profile websites to boost SEO value for a customer’s website.
BuzzFeed News recently published an article about underground marketers selling high profile links. In fact, the article gave some shocking examples.
Patricia Disney’s Memorial Site
A former Walt Disney executive, Roy Disney, had a first wife named Patricia who passed away in 2012. In recognition of her philanthropic activities, her memorial site at WeLovePatty.com enabled viewers to make charity donations in memory of her. While the domain still exists, Patty’s memorial page is gone. In fact, after her family quit paying for the domain name, unscrupulous marketers bought the domain and sold it. The domain now forwards to blaze4days.com where you see a cannabis site promoting its products.
The same thing has happened with other prominent links from Forbes, The New York Times, The Guardian, CNN, BBC and well-known news media sites.
Using a former site’s domain in this way is an example of black hat SEO.
What Is Black Hat SEO?
Black hat SEO is a coined word that describes unethical SEO practices. More specifically, a developer or web marketing company engages in practices that violate search engine guidelines. They do so with the purpose of boosting SEO rankings.
The article also gave an example of an unethical web practice that created fake websites or wrote false content to cover up a client’s criminal background. A company did this for Adrian Rubin, a convicted payday loan scammer. They used his name and created numerous fake online personalities to help him hide his criminal conviction online.
This, however, is not the same tactic as redirecting links.
An even more nefarious practice, designed to ruin a web company’s marketing is redirecting the domain to a web page containing malware. Malware is software designed to harm or access a computer system without the owner’s permission. When web viewers arrive at the page and see Google’s malware warning notice, they can’t click away fast enough.
A specific malware example is unauthorized use of keylogger software. Keylogger is spyware that captures the computer user’s keystrokes. Installing a keylogger without the user’s knowledge or consent is illegal. Even worse, criminals can use a keylogger to capture logins and steal the person’s identity.
White Hat SEO
It’s our firm policy at Web Perseverance to educate and warn clients against black hat SEO and help them understand its opposite — what white hat SEO is. White hat SEO is a term that refers to SEO practices, which are in compliance with search engine rules and policies. We can help you attract website visitors through white hat, or standard SEO, web design and development practices. We can also effectively market your site by writing engaging web content.
Web Perseverance is a web marketing company. We help businesses create strategic and productive marketing on the Internet
Directing the Website Viewer’s Attention
Negative space refers to the space surrounding the main subject/object in an image, picture or photograph. Artists have long known that negative space can make the subject stand out or get lost.
On the other hand, positive space refers to the space the subject/object occupies.
Achieving a balance between positive and negative space that is aesthetically pleasing is what graphic designers and artists typically aim for. Also, when marketing your product, there are main images and text that you want as the main focus. They should grab most of your viewer’s attention.
Positive Space to the Extreme
Some puzzles, such as the game “Where’s Waldo?” are great examples of positive space taken to the extreme. Below is an example where you can see how the items the girl is trying to find have gotten lost in the pile of objects occupying the positive space.
How Negative Space Can Create a Dramatic Effect that Draws Attention
In contrast, putting a solid dark background around the subject/object can make the object stand out and completely engage the viewer’s attention.
Here’s an example:
You can almost taste the chocolate and ice cream melting in your mouth.
Variation Can Break Up a Sea of Text
Have you ever opened up a website that was a sea of text? Paragraphs and paragraphs of text or long paragraphs with little to no variation are what we’re referring to here. The amount of text is overwhelming and sends viewers clicking away to other websites.
Through the use of different paragraph sizes, subheads, bullet points and varying fonts, interspaced with images and empty space you can transform a boring sea of text. The page can evoke emotions in the viewer that they will associate with the product.
Colors can also add variety that makes a design element stand out. The call to action “Contact Us” button created in a different accent color creates a contrast with other elements on the page and can jump out at the viewer.
How Cramming in a Few More Messages Can Ruin the Layout and Focus
All too often, clients want to cram in one more money making message. They see “wasted” space and want to be sure all of it is used. Unfortunately, when a boatload of messages hit a viewer all at once, viewers feel bombarded. They typically click away without grasping any of the messages. Hence the saying: “Sometimes less is more.”
What website is in your world of imagination?
Web Perseverance is a web marketing company. We help businesses create strategic and productive marketing on the Internet.
Breaking it Down – the New Sexual Harassment Laws in New York
As of October 9, 2019, Employees are more protected from discrimination in New York than ever before, and Employers are subjected to new standards of which they must be familiar to protect themselves from the flood of litigation that will surely follow. How so? Thanks to a number of broadly protective legislative changes, anti-harassment laws in New York State now encompass all protected classes under the New York Human Rights Law, not only sexual harassment cases. These protected classes include discrimination based on an employee’s age, race, color, sex, sexual orientation, national origin, marital status, criminal record, amongst others.
The Burden of Proof for a Hostile Work Environment Has Changed, and it is Decidedly Pro-Employee
The Old Standard – Severe and Pervasive
In the past, to succeed in a claim based upon a hostile work environment, an employee suing an employer for discrimination had to prove that harassment was “severe and pervasive.” Under any stretch of the imagination, this was a touch standard to satisfy in a Court of law. An unwanted sexual attack or repeated discriminatory comments made over a period of months to an employee based on their protected class would be obvious examples of severe acts sufficient to satisfy this old standard. Read More
The New Standard – Petty Slights and Trivial Inconveniences
Now that the new anti-harassment laws are in effect, the burden of proof has changed from this old standard of “severe and pervasive” discriminatory conduct to the new standard of “rising above petty slights and trivial inconveniences.” An affirmative defense for an employer is to prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” This is a huge change in the burden of proof that will invariably open the floodgates of litigation in cases that were historically brought under the Federal anti-discrimination statute, Title VII. Now, employees will be empowered to bring their claims under the new laws in New York State without the necessity of first exhausting their administrative remedies with the Equal Employment Opportunity Commission, a prerequisite to commencing an action in Federal Court. Read More
As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace. Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com. You can also visit us on the web.
Can You Receive Workers Compensation and Premises Liability Compensation for an Accident?
Premises liability for third parties may also apply in a workers compensation case. Depending on the circumstances of the case, a third party property owner may also be liable if their negligence resulted in injury.
For example, suppose a delivery worker drops off a package to a chemical plant. While making the delivery, an explosion occurs which shakes the building and causes a fire. The worker falls, hitting his head due to the impact of the explosion and he suffers from brain damage as a result of the concussion he sustains. In addition, the fire burns him and he must receive treatment for first degree burns.
How Does Workers Compensation Relate to this Case?
In the above example, the employee was engaged in work for his delivery company and was subsequently injured while on the job. This alone qualifies him to receive workers compensation benefits for lost wages and medical treatment.
How Do Circumstances Also Relate to Premises Liability? Read More
Our lawyers at Sackstein Sackstein & Lee, LLP have successfully handled many different types of premises liability and workers compensation accident cases. More than 65 years of legal experience enables us to provide clients with effective representation.
More Potential Penalties for Employers
Potential penalties for employers are likely to result from the amendments to the New York State Anti-Harassment Law. As the repercussions of the amendments become clearer to employers, more businesses will establish anti-discrimination work policies. Revised anti-harassment policies and stricter enforcement of them may help prevent lawsuits.
Potential Penalties that Employers Face Financially
The recent amendments enable an employee, who wins an employment discrimination case against an employer, to receive punitive damages.
What are punitive damages? A court can award punitive damages in a civil lawsuit to punish the defendant or deter the defendant’s future engagement in the same type of conduct. These are monetary amounts that the defendant must pay to the plaintiff and are also called exemplary damages. Courts award such damages in addition to other damages awarded in a case. In most cases, courts award punitive damages when the conduct is willful and intentional. (Cornell Law)
Recovery of Attorney’s Fees
Another potential monetary penalty that employers face if the plaintiff wins the case is a penalty of having to pay the plaintiff’s attorney’s fees. However, the same is not true if the employer (as the defendant) wins the case. The court will only have the employee pay the employer attorney’s fees if it can be proven that the action or proceeding filed by the employee was a frivolous lawsuit.
Seek Legal Advice and Representation
Employers can often avoid disputes and lawsuits. At Stephen Hans & Associates, our attorneys advise employers about making changes in employment agreements and other employment related policies. We also represent employers in employment litigation.
WHAT YOU NEED TO KNOW AS BOTH AN EMPLOYER AND EMPLOYEE
As I previously blogged on the topic, the New York State Senate and Assembly passed an omnibus bill that completely overhauls New York State’s dated and out of touch anti-discrimination laws, and in the process uprooted deeply engrained precedent upon which employers have relied for decades in defending harassment claims. This is good news for employees seeking to hold their employers liable for acts of harassment that take place in the work environment, but bad news for employers who will be defending those same claims.
More specifically, Governor Andrew Cuomo signed the bill into law on August 12, 2019, and the various amendments to the New York State Human Rights Law (NYSHRL), the General Obligations Law, the Civil Practice Law and Rules (CPLR), and the New York Labor Law (NYLL) will take effect as follows. Read More
As always, we at The Van De Water Law Firm is your local resource for all your legal needs, including prosecuting and defending claims of discrimination and sexual harassment in the workplace. Call now for a free evaluation and consultation at (631) 923-1314, or email us at Chris@VDWLawFirm.com. You can also visit us on the web .
Increase Breast Cancer Awareness and Schedule your Exam Today
Each year, October brings about one of the most important awareness campaigns, breast cancer awareness month. Breast Cancer is an extremely common form of cancer, specifically for women. One way October looks to spread awareness is by encouraging women to get mammograms. Mammograms are an immensely important aspect of self-care for both you and your breasts. Knowing what to expect can make the experience much more palatable, whether you are a first timer, or an experienced veteran.
One vital aspect of a mammogram is the preparation for the exam. If possible, you should choose a facility that specializes in the exam. Furthermore, going to the same facility year in and year out allows for your mammograms to easily be compared, thus providing clearer results. However, if you are going to a new place, you should bring a record of your previous mammograms. If you do not have this information readily available, you can contact the other facilities from which you received previous exams and have them sent to the facility you are using this time. This way, you can still have your exams compared. Another important aspect of preparation involves scheduling your exam. You should avoid scheduling your exam when your breasts are tender or swollen to help reduce discomfort as well as get good pictures. Try to avoid the week just before your period. Additionally, you should avoid wearing deodorant on the day of your exam. In fact, some deodorants contain chemicals that show up as white spots on your x-ray. However, you should bring your deodorant with you so you can apply it immediately after the test takes place. Don’t be afraid! Remember, only two to four in 1,000 screenings lead to a diagnosis of breast cancer.
Although it may be uncomfortable, you should discuss any recent changes or problems in your breasts before scheduling your mammogram. This means disclosing any pertinent medical history that could affect your breast cancer risk such as surgery, hormone use, breast cancer in your family, or if you have had breast cancer before. You should also inform the technologist if you are breast feeding, pregnant, or think you might be pregnant. These conditions could affect the results of the test. When you are undergoing the actual exam, there are a few things you should expect. First, you need to undress above the waist but, you will be given a wrap to wear. Don’t worry, you and the technician are the only ones who will be in the room. In order to get a high-quality picture, your breast will be flattened. In order to do this, the technologist places your breast on the machine’s plate. The plastic upper plate is lowered to compress your breast for a few seconds while the technologist takes the picture. While the compression only lasts a few seconds, the whole procedure takes about 20 minutes. It is possible to feel discomfort during compression. Don’t be alarmed! If you feel discomfort, tell the technician immediately, and they will adjust the test accordingly.
On occasion, you may need a diagnostic mammogram. A diagnostic mammogram is often done if a woman has breast symptoms or if a change is seen on a screening mammogram. While a normal mammogram typically presents two views of the breast, a diagnostic takes more pictures, focusing on the area that looked different on the initial mammogram. During the exam, the various images are checked by the radiologist so that more pictures can be taken if needed. In some cases, special images known as spot views or magnification views are used to make a small area of concern easier to see.
After you have had your mammogram exam, you should hear from your health care provider within 10 days. If you haven’t heard within 10 days, do not assume that the test was normal. In this case, you should call the facility where your exam was performed. After your exam, a full report of the test will be sent to your health care provider. You will also receive, if you went to a mammography clinic, an easy-to-understand summary of the results within 30 days, or as quickly as possible, if the results suggest cancer. If you want the full written, mammogram report as well as the summary, you need to ask for it. This October, do your part and get a mammogram. A simple 20 minute test could just save your life!
Legal Backdrop to Ed O’Bannon’s Lawsuit Against the NCAA and the California Fair Pay to Play Act
In 2008, Ed O’Bannon, the former All-American UCLA power forward, happened to see his likeness on a video game which he had never authorized or been compensated for, so he sued. He became the lead plaintiff in an antitrust suit1 against the National Collegiate Athletic Association (NCAA), the maker of the video games, Electronic Arts, and the company which licensed the trademarks of the NCAA and a number of its member schools for commercial use. Sam Keller, the former starting quarterback for the Arizona State University and University of Nebraska football teams also saw his likeness on a video game, made similar claims, and the cases were joined together (consolidated) by the federal judges because they involved such similar issues.
What Does “Antitrust” Lawsuit Mean In This Context?
Antitrust suits claim violations of the Sherman Act2, which forbids any agreement or conspiracy in restraint of trade or commerce. A clear example of this would be a secret agreement between all manufacturers of a certain product not to sell that product below a certain minimum price, which would take away any incentive for the manufacturers to lower the price to compete with one another, maintaining the price at an artificially high level. O’Bannon claimed that the NCAA, by imposing its amateur athlete eligibility rules, restrained free trade and commerce by not allowing the athletes to receive any compensation under the threat of being disqualified to play. Only the NCAA rules and the agreements between these companies prevented them from being paid. They would otherwise have a clear right to be paid for this under the established rules of commercial law.
What Happened in O’Bannon’s Case? Read More
What Happened After O’Bannon’s Case?
Video games using the likenesses of college athletes became unavailable. While O’Bannon’s lawsuit was widely blamed for this, it was reported that the video game company would have been happy to negotiate with the players, but did not do so because they feared the NCAA would stop dealing with them or sue them. See, Blame the NCAA not O’Bannon
In deciding how much O’Bannon’s attorneys should be awarded in fees after winning the lawsuit, the federal magistrate judge noted that the NCAA was a behemoth organization, and likened suing them to the game of thrones: You win or you die.
It would allow college athletes in California to sign endorsement deals; earn compensation based on the usage of their name, image and likeness without no dollar amount limit, and sign all types of licensing contracts, but it would obviously not allow them to be paid for actually playing. This law says that the NCAA cannot enforce its amateur eligibility rules insofar as they prevent college athletes from doing these things.
Is the California Law Likely to Pass?
Yes – It passed unanimously in the California State Assembly, it is expected to pass in the state Senate, and Governor Gavin Newsom is expected to sign it. It is anticipated that it will go into effect in January 2023.
What Has the Reaction to This Law Been So Far? Read More
New York State Senator Kevin Parker has introduced a bill that would not only allow college athletes to earn money from their names, images and likenesses, it would require each college to take 15% of the revenue earned from ticket sales and to pay it to student athletes. I’m sure you’ll be hearing similar things in state legislatures all over the country soon.
LeBron James answered the NCAA very well in his tweet:
Or…….because of this bill, you can work with everyone to create a national policy that is fair to the athletes.
Edward O’Bannon, et al. v. National Collegiate Athletic Ass’n, U.S.D.C. NDCA, 2016 U.S. Dist. LEXIS 44131, Case 09-3329-CW,
 15 USCS § 1 et. seq.
 See, Joseph N. Crowley, In the Arena: The NCAA’s First Century 2 (2006), available at
 The Intercollegiate Athletic Association was formed in 1906 and changed its name to NCAA in 1910.
 O’Bannon v. NCAA, 739 Fed. Appx. 890.