Chobani Offers Company Stock to Its Employees

Chobani, the yogurt manufacturer, recently told its 2,000 full-time employees at its plant in New Berlin, New York that they will each receive a share of company ownership up to 10% of the company’s value. Hamdi Ulukaya, the company’s owner, said he would be giving them shares when Chobani goes public or is sold.

Mr. Ulukaya said the goal is to pass along the wealth his workers have helped build since he formed the company in 2005. Chobani is considered to be worth several billion dollars. “Now they’ll be working to build the company even more and building their future at the same time,” he told The New York Times.

Each worker received a packet which containing information about how many Chobani shares they will receive. The number of shares received depends on the years of service; those who have been with the company since its inception will receive more shares. Two years ago, the company was valuated between $3 billion and $5 billion; this means that, at the lower end of the valuation, the employee payout would be $150,000. The longest-tenured employees, meanwhile, can see payouts at more than $1 million.

The shares are coming directly from Mr. Uluyaka and can be sold if the company goes public or is sold. If an employee leaves the company or decides to retire, they have the option to keep the shares or sell them back to the company.

It is important that, before entering into an agreement with a potential employer, you negotiate the best benefits and compensation you can receive. If you have concerns regarding employment law issues, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

Possible Settlement in Unpaid Overtime Case

In November 2014, employees of Alice’s Tea Cup LLC, a Manhattan café chain alleged that during their employment, they were not paid overtime for days when they worked more than 10 hours. Alice’s Tea Cup has three locations in New York City.

The Fair Labor Standards ACT (FLSA) is federal legislation that allows individuals to be entitled to minimum wage.  In addition, a person is entitled to overtime pay that is not less than time and a half of their regular rate of pay for any work over 40 hours per week.

In May 2015, the owners of the Café, Zhariff Melgoza and Haley Fox filed discovery requests demanding that the workers produce documents to verify their current immigration status and other supporting documentation.

In July, Judge James Francis granted the plaintiffs protective order from the Café’s request for discovery.  He said that their immigration status or financial records were irrelevant to their and New York labor law claims (NYLL).  Also, the risk of injury to the plaintiffs outweighed the need for disclosure “because the danger of intimidation and undermining the purposes of the FLSA.”

This case was initially scheduled to go to trial on December 5th in New York federal court.  However, after months of negotiation and mediation over the unpaid overtime, attorneys for Alice’s Tea Cup and the employees suing, asked Judge Francis to approve a $200,000 settlement.  Both sides believe the deal is reasonable and fair.

According to Law360, the settlement provides that within eight days of the courts approval, the café will pay $75,000 to eight plaintiffs for various amounts.  Four of those plaintiffs will receive thirty-five monthly installments of the remaining $125,000 over the next three years.  Three of the plaintiffs instructed counsel to dismiss their claims with prejudice, which resolves claims that Alice’s Tea Cup did not pay proper overtime wages.

The FLSA requires that an employer pay overtime wages. If you believe that you have not been properly compensated as an employee, contact an experienced New York Employment Attorney. Contact Steven Mitchell Sack at (917) 371-8000.

Medical Exam Company Agrees to Stop Forcing its Employees from Entering into Restrictive Covenants

New York State Attorney General Eric Schneiderman recently announced that Examination Management Services, Inc. (EMSI), a medical information and examination services firm, has agreed not to require its non-management employees in the state to enter into restrictive covenants, also known as non-compete agreements. This was reported in Newsday.

EMSI, which is based in Irving, Texas and has two offices on Long Island, had required its workers to sign a non-compete clause prior to joining the company, even if they did not have access to proprietary information. Under the terms, if an employee decided to leave the company, that employee would have to wait nine months before they could work for a rival company that was less than 50 miles away from EMSI’s location. This applied to “non-senior” workers who traveled to private residences to draw blood, conduct physicals and collect bodily samples for lab testing.

On July 12, Margaret Beebe, who worked as a traveling phlebotomist with EMSI, filed a complaint with the attorney general’s office when she learned a possible job offer with a clinical laboratory that would have paid her more money and require no travel was rescinded because she was still under the terms of the restrictive covenant she had with EMSI. Under the settlement, New York employees at EMSI would no longer have to sign non-compete agreements; this does not apply to directors, officers or other high-level executives.

This is not the first time such a settlement has been reached. Financial Times recently reported that, in June, Mr. Schneiderman announced a settlement with Jimmy John’s in which the sandwich chain would no longer require its workers to sign non-compete clauses.

The FT article cites federal data showing that almost 20% of U.S. workers are bound by these agreements, some of them still having to abide by them after leaving their jobs. Fourteen percent of those earning less than $40,000 are held to restrictive covenants. Despite its growing unpopularity among employees, 47 of 50 states still permit restrictive covenants.

If you are asked to sign an employment contract that contains a restrictive covenant, please contact an experienced employment law attorney first. Call Steven Mitchell Sack at (917) 371-8000.

New Proposal from DOJ Seeks to Reduce Employment Discrimination against Immigrants

Law360 recently reported that The Department of Justice is proposing a new rule that would implement changes to the Immigration and Nationality Act, including how certain terms would be defined in regards to the so-called “unfair, immigration-related employment practices” based on the employee’s immigration status or nation of origin.

The rule places unfair, immigration-related employment practices into three categories: “(1) discrimination with respect to hiring, recruiting or referring for a fee, or discharging an individual; (2) intimidation or retaliation; and (3) unfair documentary practices.”

Under the proposed rule, the definition of “hiring” and “recruiting or referring for a fee would be expanded to include the employer’s conduct during the interview, recruitment and referral fee collection process — not just during the hiring process — and how it can be construed as an unfair immigration-related practice. The term “unfair documentary changes” would replace “documentation abuses” and the scope of the term would benefit the immigrant employee, in that they would not have to prove injury if they were asked by the employer to produce more documentation than was necessary in order to be hired.

In addition, the rule would allow the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices to change its name to the Immigrant and Employee Rights Section. The OSC is responsible for investigation of these workplace discrimination matters.

If you believe you have faced discrimination or harassment by your employer or have been wrongfully terminated because of your immigration status or country of origin, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

OSHA Post-Injury and Illness Drug Testing and Record-Keeping Rule

As of December 1, The Occupational Safety and Health Administration (OSHA) will begin enforcing the injury and illness record-keeping rule. Under the record-keeping rule, companies with more than 250 employees in covered industries will be required to submit annual injury and illness forms electronically.

The 300, 300A, and 301 forms will be filed electronically, and the reports will be made public on the internet.  Labor organizations and tort lawyers will be among those interested in viewing the reports.

According to OSHA, “employers must establish a procedure that is reasonable for employees to report work-related illness and injury timely and accurately.” A reasonable procedure is one that does not deter or discourage an employee from reporting the workplace injury.

According to Material Handling & Logistics, OSHA has appeared to ban post-accident drug testing.  The reasoning is that post-accident drug testing may be used to intimidate employees into not filing a report.

According to OSHA, it will not issue a citation if the drug testing is mandated by state or federal law, or is required by state workers’ compensation laws.  Also, employees who report work-related illness or injuries are not prohibited from being drug tested as long as the employer has an “objectively reasonable basis for testing.”  This rule does not apply to aspects other than injury reporting.

According to OSHA, “post-incident drug testing should be limited to situations in which drug use by the employee was likely a contributing factor in the incident and taking a drug test would confirm impairment.”

Some of the factors that OSHA will consider in determining if a post-incident drug test was acceptable is whether the employer has a reasonable basis to conclude that the drug use contributed to the employee’s illness or injury, whether the other employees involved in the incident were tested, and whether the employer tested only the person reporting the injury.

To find out more information on how to establish a post-injury drug testing program that will comply with OSHA’s standards or if you believe you have been wrongfully drug tested by your employer contact, an experienced New York employment law attorney.  Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

 

Cancer in the Workplace

According to the National Cancer Center Institute (NCCI), this year, there will be an estimated 1,685,210 new cases of cancer diagnosed in the United States. The NCCI reported the number of new cancer cases for women and men per year is 454.8 per 100,000 people. Also, some of the most common cancers in 2016 are expected to be prostate cancer, kidney cancer, breast cancer, lung cancer, bronchus cancer, rectum cancer, colon cancer, skin melanoma, endometrial cancer, thyroid cancer, and leukemia.

The American’s with Disabilities Act (ADA) as amended in 2008 by the American’s with Disabilities Amendments Act (ADAAA), prohibits discrimination against individuals with a qualified disability. The ADA applies to employers with 15 or more employees. Federal employees are not covered under the ADA. However, they are afforded the same protections, which is enforced by the Office of Federal Operations of the Equal Employment Opportunities Commission (EEOC).

An individual who has cancer or had cancer that is in remission is covered by the ADA as amended in 2008. The ADA requires that an employer provides reasonable accommodations for the employee with a disability to enjoy equal employment opportunities unless it would cause significant expense or difficulty. Most employees with cancer do not require accommodations that are costly or create undue hardship for the employer. Most employees being treated for cancer need accommodations due to the nature of cancer itself as well as side effects from the treatment and medications.

The employee or a health care professional, friend, family member, friend, agent or another representative may request the reasonable accommodation from the employer on behalf of the employee. Examples of reasonable accommodations include, but are not limited to, breaks to take medication or rest, authorization to work from home, leave for doctors appointments, and to restructure the position. Also, an employee may require more than one reasonable accommodation at a time.

The New York Human Rights Law (NYHRL) provides, “It shall be an unlawful discriminatory practice for an employer…to refuse to provide reasonable accommodations to the known disabilities of an employee.” (Executive Law 296(3). The NYHRL applies to employers with 4 or more employees. In 2015, a Roslyn woman was fired from her job shortly after she needed time off for the third round of chemotherapy. Her employer, a prominent Neurological Surgery CEO in Rockville Centre, ridiculed her for having cancer and blamed her for rising health care premiums. After months of being mocked the woman filed a lawsuit in Brooklyn Federal Court. The status of this case is currently pending.

If you or someone close to you has been faced with discrimination due to cancer or another known disability and are not receiving proper accommodations from an employer, contact an experienced New York employment lawyer, who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@stevensack.com for a consultation.

DOL Allows Two Former Uber Drivers to Collect Unemployment Benefits

The New York State Department of Labor has ruled that two drivers who used to work for Uber were considered employees and, therefore, eligible to receive unemployment insurance benefits, as reported by Crain’s New York Business. This decision is considered to be the first of its kind regarding for-hire drivers in New York State.

The two drivers — Jakir Hossain and Levon Aleksanian — filed unemployment claims with the DOL, but received no response. In July, the Taxi Workers Alliance filed a lawsuit against the DOL, requesting that the agency review Mr. Hossain and Mr. Aleksanian’s claims. On October 12, 2016, the agency ruled in favor of the two drivers.

Ride-sharing companies such as Uber and Lyft claim that their drivers are considered independent contractors, not employees, since they can set their own hours. This means that the companies do not have to pay their drivers the minimum wage, nor do they need to offer them benefits like unemployment insurance.

The Taxi Workers Alliance hailed the decision and said this will mean Uber and Lyft will have to reclassify its drivers as employees. In the meantime, the labor group has called on the DOL to audit the two companies to see if their current and former drivers were or are considered to be employees. Many former drivers, according to the Alliance, have also filed for unemployment benefits, but their claims have been denied without being reviewed.

Uber announced it will appeal the decision. The company claimed that, by reclassifying its drivers as employees, costs will rise, and drivers would have to work set shifts for a set number of hours and not be able to use other ride-sharing apps to earn extra money.

If you have been misclassified as an independent contractor, you may have been cheated out of wages and other employee benefits. Contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

Pregnancy Discrimination in the Workplace

Since their integration into the workplace, women have become an important part of today’s labor force. In recent years, working women have made strides to become a critical part of the labor force while simultaneously raising and supporting their families. According to Pew Research Center, mothers serve as the sole or primary provider in 40 percent of households with children. Despite this progress, women have faced a variety of obstacles in the workplace, including one of the most prominent issues: pregnancy discrimination.

A recent survey of 500 managers revealed that 40 percent of them would rather hire a man aged 20 to 30 than a woman of the same age for fear that they would have to grant her maternity leave if she were to become pregnant. A similar number of managers surveyed stated that they would be wary of hiring a woman who has already had a child or hiring a mother for a senior role. As many as 44 percent of the managers stated that the financial cost of maternity leave for employees poses a significant burden on the business.

Pregnancy discrimination extends beyond the pre-hiring stages, as many women who become pregnant while working face negative or discriminatory behavior from their employers. A report from the Women and Equalities Select Committee estimates that 53,000 women each year are being discouraged from attending antenatal appointments by their employers, despite the fact that permanent employees are granted the right to time off for crucial check-ups.

Under the Pregnancy Discrimination Act (PDA), it is illegal to treat someone unfairly, whether an applicant or employee, due to pregnancy, childbirth, or a related medical condition. The law forbids pregnancy discrimination in all aspects of employment, including hiring, training, pay, job assignments, layoffs, firing, or benefits, among other terms or conditions of employment. Women employees may also be protected under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.

If you or a loved one has faced pregnancy discrimination in the workplace, contact an experienced New York employment lawyer. For the past three decades, “The Employee’s Lawyer” Steven Sack has successfully represented clients in employment discrimination cases, including a pregnancy discrimination case that resulted in obtaining a $6.2 million jury verdict on behalf of his clients. To schedule a consultation, call (917) 317-8000.

Discount Store Employee Says Boss’ Violent Temper Caused Her to Suffer from PTSD

A discount store employee from Virginia is seeking $1 million in damages, claiming that she began to suffer from post-traumatic stress disorder (PTSD) after her male boss flew into a rage and began to verbally and physically assault her, according to Courthouse News Service.

On March 4, 2016, Patricia Morgan, an employee at Roses discount store in Chesapeake City, Virginia, was called by her general manager, John Brophy, to fix a computer problem caused by the office manager. Ms. Morgan told Mr. Brophy that she did not know how to fix it so she had to call over a co-worker. Mr. Brophy allegedly began to verbally abuse her, adding that, after he speaks to the corporate office about this, “there will be hell to pay.”

After the computer problem was fixed, according to Ms. Morgan, Mr. Brophy continued his profanity-laced tirade towards her. Fearing for her safety, she positioned herself between a stairwell and a hand truck loaded with boxes. Mr. Brophy continued to curse and yell at Ms. Morgan and started to push the boxes and hand truck onto her, pinning her legs and abdomen against the staircase.

Despite her pleas to stop, Mr. Brophy allegedly continued to push the boxes against her. Ms. Morgan says she told him, “What are you doing? You’re hurting me!” In response, he punched into the boxes. During the incident, she says a co-worker saw this occur but did not attempt to stop what Mr. Brophy was doing. According to Ms. Morgan, the assault ended only after Mr. Brophy’s arms got stuck in the boxes.

On May 26, 2016, Ms. Morgan filed a complaint, stating that, after the incident, she went into the store’s restroom to compose herself, then became physically ill. She waited until he left the store to go home. The complaint also states that Mr. Brophy came up to Ms. Morgan the next day to apologize, only to fly into a rage again. This time, the incident was caught on the store’s surveillance cameras.

As a result of the incident, according to the complaint, Ms. Morgan has experienced severe panic attacks and headaches, loss of appetite and stopped visiting friends and colleagues. She has also been diagnosed with acute PTSD.

An incident such as this constitutes workplace bullying. The first sign of workplace bullying is that one employee is being verbally and/or physically abused by their supervisor while that person’s co-workers are not subjected to the same treatment.

Those who are bullied should know it is not their fault and did nothing to bring it upon themselves. If they are constantly victimized at work and all their options to resolve this problem have been exhausted, they should immediately consult a lawyer. If you have concerns regarding employment law issues, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

Fired African-American Car Salesman’s Lawsuit Can Proceed

An African-American who claims he was subjected to racial discrimination and a hostile work environment — only to be fired — has been allowed by a U.S. District Court to pursue a lawsuit against his former manager and the dealership where he worked.

John Pendleton, who worked as a salesman at Bob Frensley Chrysler-Jeep-Dodge-Ram Inc. in Nashville, Tennessee from February 26, 2014 to April 26, 2014, claimed his manager, Thomas Mowell, made “racially inappropriate comments every day,” according to an article from Automotive News. Mr. Pendleton said “it was sickening just having to work there” and to “be around” Mr. Mowell. Mr. Pendleton’s lawsuit also alleges that he complained to Mr. Mowell and another manager about the treatment he received, but neither manager resolved the issue, nor did they report the complaint to the dealership’s owner.

Mr. Pendleton claims he was fired when we got into an argument with two white salesmen who he accused of taking a possible sale from him. During the argument, one of the salesmen allegedly punched Mr. Pendleton. Those two salesmen were neither fired nor suspended, but the one who assaulted Mr. Pendleton received only an “employee warning.” It was later learned that one of the white salesmen was also involved in an incident involving another African-American employee, who, like Mr. Pendleton, was terminated after the incident, but the white salesman faced no such disciplinary action.

Mr. Mowell, who was fired in December 2014, and the dealership claim the allegations are false and that Mr. Pendleton was “administratively discharged” for failing to return to work after the incident.

The Court ruled that there was enough evidence of racial discrimination, a hostile work environment and retaliation for the lawsuit to proceed and allowed Mr. Pendleton to seek punitive damages. The trial is scheduled to begin on September 12.

If you believe you have faced racial discrimination or harassment by your employer or have been wrongfully terminated, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.