New York Employment Lawyer Blog

On or about September 30, 2011, the NYS WCB issued millions of dollars in fines, penalties and judgments against business owners (many of them are mom and pop shops) and residents throughout New York State pursuant to Section 52(5) of the statute. Our attorneys have represented many clients before the Board and successfully eliminated or reduced the fines and penalties for individuals and companies. In addition, we have vacated judgments for clients in the past who were unable to secure financing or sell their property due to a real property lien. Contact our office at (800) 893-9645 to learn how we can assist you. You spent a lifetime building your business - don't let New York State take away your business and life savings over a technicality.

Below are some frequently asked questions and answers.

Q: What should I do if New York State issues my small business a penalty, fine, judgment or a Stop Work Order for not having Workers' Compensation or Disability Insurance?

A: You should read the notice thoroughly but do not respond by making any damaging admissions which can cost you thousands of dollars in the future. Instead, call our experienced New York Lawyers who have over 25 years of legal experience and have successfully saved small businesses over a million dollars.

Q: What could happen if I ignore the Workers' Compensation Notice?

A: The worst thing you can do is to ignore the Notice. Your failure to answer the Notice in a timely manner could result in a judgment being issued against your business and, possibly, you personally. Your business could be found responsible for thousands of dollars in fines and penalties in your absence. In addition, this may result in you paying higher insurance premiums for several years. In certain circumstances, this can be avoided by hiring the right lawyer.

In addition, the New York State Workers' Compensation Board could issue a Stop Work Order preventing you from operating your business.

Q: What is a judgment?

A: A valid money judgment purports to resolve all the contested issues and terminates a claim and may be considered the official decision of the law on the action. As a result of a judgment, New York State can freeze your business' bank accounts, place a lien on your business's real property and equipment and adversely affect your credit report and ability to work vendors.

Q: I already closed my business. Can I be personally responsible for the penalty or judgment?

A: It depends on the circumstances. For more information, call our office and speak with one of our experienced Workers' Comp Defense Lawyers.

Q: What can your Law Firm do for me?

A: Our New York attorneys can fight to protect your business and your assets. Our lawyers know the relevant statutes, the law and the administrative procedures. Based on our arguments and presentation, we have saved companies over one million dollars by obtaining a rescission and/or complete or partial reduction of the judgment. We welcome the opportunity to discuss how we can defend your business against this judgment and protect your company's valuable business interests and assets. Your business may be exempt from workers' compensation coverage. Call us now at (800) 893-9645 for a free telephone consultation to learn how to protect and defend your business.

Client Testimonials

Our accountant and insurance broker told us we didn't need workers' compensation insurance coverage for our nanny. Turns out they were wrong and we received a huge penalty. They could not help us. We are lucky to find your law office. Mr. Sanchala is a truly gifted and caring lawyer who helped us in a real time of need. Thank you. - Former Client

I did not know I had a workers compensation judgment until I went to sell my house. That is when my nightmare started. My real estate attorney told me my house had a lien on it and I could not sell it until I paid off a judgment to the New York State Workers Compensation Board. My real estate attorney could not help me. My insurance broker could not help me. I interviewed several attorneys and hired Mr. Sanchala. He is extremely bright and a strong advocate. He was able to reduce my penalty and remove the judgment. I hope to sell my house soon! - Former Client

I cannot thank you enough for your legal services. My wife and I could not sleep at night with the tremendous New York State workman compensation fines hanging over us and our family. Mr. Sanchala is an expert attorney. Thanks to your lawyers our family's business is still open. We could not have been happier. - Former Client

Continue reading "Our Lawyers Protect Small Businesses who are Facing a Fine, Penalty or Judgment by the NY Workers Compensation Board for Failure to Carry WC Insurance" »

Telecom giant AT&T just settled an age discrimination lawsuit. The Company was charged with discriminating against over 50,000 retired AT&T workers who had retired under several retirement and severance programs because it refused to rehire them. The settlement provides for a three year consent decree and now enables former employees to apply for re-employment.

The Age Discrimination in Employment Act ("ADEA") makes it illegal for employers to discriminate against employees and job applicants over 40 years of age because of their age regarding any term or condition of employment including hiring, firing, layoff, promotion, compensation, benefit, and training. The federal law also makes it illegal to retaliate against an individual for complaining about age discrimination or for filing charges, testifying or participating in such a investigation, proceeding or litigation. Our attorneys have represented many clients who were victims of age discrimination and suffered from loss of work and job opportunities. If you believe you have been discriminated against because of your age, our lawyers can help protect your rights in the workplace.

The EEOC had filed the age discrimination lawsuit against AT&T and its subsidiaries in 2009 alleging that it had discriminated against a class of retired workers by not allowing them to be reemployed just because they retired under early retirement plans. The government agency had charged that this resulted in violating the anti-discrimination laws because a disproportionate number of older workers ended up not having the same
opportunity to apply for re-employment.

The lawsuit was filed in the Southern District of New York on behalf of John Yates, who was 57 years old at the time, and other retired workers. The class of workers all participated in retirement plans such as the Voluntary Retirement Incentive Program, the Enhanced Pension and Retirement Program and were denied reemployment.

According to the three year settlement decree, the Company will have to stop any prohibitions it has against rehiring workers who retired under such retirement programs. The decree also requires the telecommunication organization to update its databases so that former workers are not "blocked" from being rehired and certify every year in writing that it is following the terms of the decree. The decree states that it will "not maintain any policy prohibiting the rehiring of employees who [resigned] under the relevant retirement programs" and there will be no retaliation against anyone involved in the litigation. Anna M. Pohl, a trial attorney at the EEOC's New York district office, stated that "many former employees who took an early retirement package years ago still need work, and will now have an equal opportunity to apply for new jobs [with their former employer]."

The Company's discriminatory policy had the effect of putting over 50,000 workers out on the street relying on their savings and unemployment insurance to get by. Age discrimination not only affects older individuals but it can also consequentially impact our society and economy. Many companies lay off their older senior people and hire younger workers who they pay less. Many older workers have trouble finding similar jobs and end up taking jobs with substantially less pay and lower positions. With longer life spans, increased health care costs, and depleted savings, most people cannot afford to retire. When a qualified unemployed person is discriminated based on his or her age, he or she then relies on unemployment insurance and government assistance which then affects our economy.

If you have been negatively impacted because of your age, our experienced Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 can help you.

Continue reading "AT&T's Policies Violated Age Discrimination Laws For Failure to Rehire Retirees" »

Joseph P. Villanueva, a recognized top litigator in New York State, reveals everything you always wanted to know about traffic including speeding tickets in Yonkers City Court but were afraid to ask. For readers of this blog, Mr. Villanueva has announced that all non-misdemeanor traffic matters pending in Yonkers City Court will be handled for $395.00 (plus expenses). This deal is valid through November 2011 and will expire at 12:00 am on December 1, 2011. You must mention this special offer when you call or email.

If you need assistance fighting a traffic matter (such as a speeding ticket, red light violation, or move over law violation), give us a call at 914-723-7900.

In this blog, we'll discuss just about everything you ever wanted to know about speeding tickets but were too afraid to ask.

(Disclaimer) Remember, every case is different and as the answers may vary depending on your particular facts and circumstances. As such, we highly recommend that you contact or office for a full consultation and not rely exclusively on the information provided herein.

Where is the court located and what kind of cases are heard there?

Yonkers City Court is located at 100 South Broadway, in Yonkers, New York. The Court is sometimes referred to the "Cacace Justice Center." It has jurisdiction over civil and criminal matters. The civil cases filed in this court are typically referred to as small claims matters. This court also has jurisdiction over landlord tenant matters.

On the criminal side, it can adjudicate all misdemeanors and some felony proceedings. It also has power to hear traffic cases such as speeding tickets, disobeying a traffic device tickets, and overweight truck tickets.

Yonkers is one of the busiest courts in the State. Their full time judges are elected for a 10 year term.

What penalties am I facing for a speed?

There are many different types of penalties that you can face from a simple speeding ticket. The penalties can range from points on your license to fines and incarceration.

Here is a quick look at the speeding point chart:

Speeding Points
01 to 10 mph over the limit 3
11 to 20 4
21 to 30 6
31 to 40 8
More than 40 11

Who prosecutes cases in Yonkers?

Traffic matters are prosecuted by the officers that issued the summons. Depending on who wrote the ticket, you may be dealing with a local Yonkers police officer, a county police officer, or state police officer.

If you are charged with a crime, your case will be prosecuted by the Westchester County District Attorney's Office.

The ticket says I must respond in 48 hours is that true?

There has been some case law that indicates that in order to be timely and to be properly arraigned by mail, you must respond in 48 hours.

Do I need a lawyer to fight this?

While you do not "need" an attorney to fight your traffic matter, there are many benefits that you can derive from having counsel. One such benefit is that you can give your attorney the equivalent of a power of attorney and act on your behalf without you coming to court.

What is the standard of proof on a traffic ticket?

Outside of the "Traffic Violations Bureaus," the burden of proof is on the prosecution to prove their case beyond a reasonable doubt. This can be a powerful tool if utilized properly.

Can I beat my ticket at trial?

Going to trial on a traffic matter can be impractical. From my experience, most traffic cases can be reduced or dismissed by this office thereby eliminating the need for a trial.

Can I really go to jail on a speeding ticket?

Yes. While it is unlikely that you will go to jail for speeding, it is possible. Certain charges carry a jail sentence. You must be vigilant in knowing which charges carry a possible jail sentence.

What is the Driver's Responsibility Assessment?

The Driver's Responsibility Assessment also referred to as a DRA, as it related to speeding tickets, is a minimum $300.00 fine assessed to motorist for accumulating 6 or more points in an 18-month period.

Can an out of state driver be given a DRA?

Yes. If you are an out of state driver and accumulate more than 6 points in New York, then you are subject to the DRA.

I received a letter from the court stating that I must appear in court for my ticket. What happens if I go to court, enter a plea but don't have any money to pay a fine?

You need to ask the judge for more time to pay. In many cases, the court will grant a motorist a few days after the plea to pay the fine. However, your failure to pay the fine, could result in your privilege to drive being suspended.

How will a speeding ticket affect my insurance?

A speeding conviction can affect your insurance for several years after the entry of your plea. In some cases, a conviction has cost motorists hundred of dollars in insurance costs and expenses. These cost may have been avoided by retain our firm.

How long do points stay on my license?

Points will remain on your license for 18 months from the date the ticket was issued. Your points will continue to be visible on a drive's abstract for several years after the points are returned to your license.

I received a notice of suspension for not responding to a ticket. Can I be arrested?

If you are caught driving without a license, you can be charged with a criminal misdemeanor known as Aggravated Unlicensed Driving of a Motor Vehicle (AUO). Depending on the severity of the suspension, you could be facing a felony charge AUO 1st degree under VTL 511.3.

If you charged with any type of driving with a suspended license it is important that you contact our firm immediately to find out how to fight this matter.

I just got my junior license and I am on probation. Will I lose my license if I plead guilty to a speeding ticket?

As a general rule, if you new driver or you obtained a license after a revocation, you will be on probation for 6 months. If you are convicted of a speeding ticket and some other VTL sections, your privilege to drive will be taken away from you.

If you have a matter pending in Yonkers City or the surrounding areas of Westchester County, give us a call at 914-723-7900.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

An Australian woman, Susan Spiteri, recently filed a lawsuit alleging sexual harassment against computer giant IBM for $1.13 million. Spiteri, a top sales executive at IBM's Melbourne office, has alleged that her senior manager bullied her and sexually harassed her for almost 2 years. She has alleged that he engaged inappropriate touching, remarks, intimidation and unreasonable requests and even told her to "get her breasts out" to get more sales.

Spiteri started working at IBM in 1999 and has stated that prior to the harassment, she loved working at IBM. However, beginning in 2007 when a new senior manager was appointed, and for almost two years thereafter, her entire work environment changed. She has alleged in her complaint that "he groped me. He rubbed himself against my backside when he walked past me. He touched me, put his hands up my dress, asked me to expose my breasts to get more sales . . . He called me names to may customers and . . . yelled at me consistently." Spiteri has alleged that he harassed her at work and at work functions in front of colleagues, customers and managers.

Spiteri has alleged that she complained about the harassment many times to her managers, colleagues as well as to IBM's human resources department. However, her complaints were ignored. Spiteri has stated that she hopes her complaint will "encourage other victims of sexual harassment to be strong and come forward and stick up for themselves."

IBM's website regarding its policies clearly sets forth its global employment standards which specifically state that IBM "will create a work environment free of discrimination or harassment based on race, color, religion, gender, gender identity or expression, sexual orientation, national origin, disability, age or veteran status. The policies page also states that it "will treat all employees with respect and dignity" without using "threats" or "harassment." IBM has a detailed policy committed to a workplace free from harassment. An IBM spokesperson has stated that IMB did not tolerate any type of sexual harassment and that it would defend the lawsuit.

Clearly, every company, no matter how large or small, should have a sexual harassment policy and procedure in place. However, just having a policy in place is not enough. Even though IBM is a huge, global company with a human resources department, it turned a blind eye and allowed Spiteri to be sexually harassed and bullied for almost 2 years! As important as it is to have a policy, it is equally important to enforce it. Make sure you investigate any claims of workplace harassment quickly and efficiently. Make sure that the alleged harasser is not threatening or intimidating the alleged victim or witnesses not to speak. Our firm has encountered many instances of the harasser bullying the victim as well as witnesses to the harassment. Our attorneys can help you properly investigate any complaints of sexual harassment.

If your company does not have a sexual harassment policy in place, call our Workplace Harassment Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you set up a policy and procedure to avoid the high cost of defending workplace harassment.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

The U.S. government has reached a tentative settlement with Abbott Laboratories for at least $1.3 billion for allegations that Abbott had marketed its epilepsy drug, Depakote illegally. This would be the third largest illegal pharmaceutical marketing settlement ever. To date, Pzifer has paid the biggest settlement amounting to $2.3 billion in 2009 for illegally marketing its painkiller Bextra and other drugs.

The lawsuit against Abbott was brought to light by whistleblowers who alleged that Abbot was marketing Depakote for agitation and aggression in patients with dementia, autism, sexual compulsion and other disorders not approved by the U.S. Food and Drug Administration ("FDA"). Depakote is only FDA approved to treat epilepsy, bipolar mania and migraine prevention. According to federal regulations, a physician can only prescribe medication that has been licensed and found to safe and effective by the FDA. Federal law makes it illegal to market a drug for uses other than those approved by the FDA. In other words, a pharmaceutical company cannot market an epilepsy drug as a cure for heart disease. If you know of any fraudulent activity being committed against the government at your workplace, our attorneys can help you determine if you have a qui tam whistleblower lawsuit under the False Claims Act. Our attorneys have helped many clients evaluate their evidence to determine if they have a strong claim.

Meredith McCoyd ("McCoyd"), a former Abbott sales representative, filed the lawsuit in 2007 under the False Claims Act. She filed suit on behalf of the federal government, 24 states and the District of Columbia. Shortly after, the government and the states joined her suit. Her lawsuit was consolidated with three other suits also alleging off-label marketing.

McCoyd alleged in her whistleblower complaint that Abbot was marketing Depakote to elderly patients with Alzheimer's and dementia in 1998 although Abbott knew that it "was unapproved for the treatment of Alzheimer's, did not work to treat the disease and was actually dangerous for use by the elderly." The drug was especially pushed in healthcare settings such assisted living facilities and long term care facilities throughout the U.S. Her complaint also alleged that Depakote sales "rocketed to over $1.4 billion per year" and "compensation for senior executives soared as well" because of the illegal marketing.

The whistleblower statute plays a crucial role in helping the government to stop illegal activity which it may otherwise never have known of. This is extremely important when pharmaceutical companies who are endangering the public's health are involved in the fraud. It is atrocious that Abbott executives were financially benefiting at the expense of the public's health.

Because both the federal government and the states are involved, this would be a global settlement. Pursuant to the False Claims Act, the whistleblowers would get at least 15% of the federal civil amount recovered in the settlement as well as some of the money paid to the states. Under the qui tam provision of the False Claims Act, you may bring an action on behalf of the government if you have evidence of fraud being committed against the government. Depending on whether or not the government takes over your lawsuit, you may be entitled to 15% to 30% of the recovery. Because it's a complicated statute with strict requirements, it is best to consult an attorney if you have information about fraud being committed against the government. Call our qui tam Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you decide if you have a case under the False Claims Act.

Continue reading "Qui Tam Whistleblower Update: Exposing Fraud Under False Claims Act Can Lead to Huge Payoff" »

Hooters of America restaurant chain ("Hooters") filed a federal lawsuit in Atlanta, Georgia suing competitor Twin Peaks Restaurant alleging that it stole trade secrets and other confidential business information after several of its executives left the company to work at Twin Peaks Restaurants.

Hooters has alleged that its former vice president of operations and purchasing, Joseph Hummel, left Hooters to become partner and CEO at Twin Peaks, a chain of restaurants owned by La Cima. Hooters' has alleged that Hummel stole "sensitive business" information that it had used to grow the business. The lawsuit also alleges that prior to the weeks before his departure from Hooters, Hummel downloaded and e-mailed a "substantial volume" of Hooters documents, which included plans related to management, marketing, recruitment, distribution and sales to his private account. The complaint alleges violations under the federal Computer and Abuse Act and the federal Electronic Communications Privacy Act which make it illegal to steal confidential data electronically. Our attorneys have counseled many companies on how to protect their trade secrets confidential information from departing executives and employees. Call our attorneys if you suspect a departing employee of stealing valuable company information.

Hooters is an Atlanta based company well known for its casual dining and "Hooters Girls" who dress in a white Hooters tank top and orange shorts. Hooters was started in Florida in 1983 and has 455 locations around the world with 67 in the southeast.

Hummel left Hooters for La Cima Restaurants, which owns the Twin Peaks restaurants, which are a mountain lodge themed chain with an all female waitress staff. Twin Peaks has 15 locations in five states where the waitresses serve chicken wings dressed in tan shorts and tiny flannel bikini tops. Twin Peaks' motto is "Eats, Drinks, Scenic Views." Twin Peaks recently announced that it plans to open about 35 franchises throughout the Southeast over the next 10 years. Over the next 7 years, it plans on opening 7 franchises in the Atlanta area, competing directly with Hooters.

Departing executives or employees with access to valuable company information can be disastrous for companies who rely on their trade secrets for their success. Make sure you have your executives and all employees with access to classified information sign a confidentiality agreement as well as a non-competition agreement. It is imperative that before any employees with sensitive information leave your company, they return all confidential documents. Given the ease of transferring information electronically, consider implementing electronic security measures. Once information is stolen and known by your competition, it can't be given back. Limit the number employees you give access to confidential information and make sure your employees don't leave your business premises with classified information or files.

Our attorneys have prepared employment agreements with non-competition and non-solicitation agreements for many executives and employees from varying trades and professions.

If you are hiring or if any of your top executives or employees with sensitive, classified information is leaving to join a competitor, call our Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you prepare confidentiality and non-competition agreements to protect your business.

Continue reading "Importance of Confidentiality and Non-Competition Agreements: Protecting Your Trade Secrets & Proprietary Information" »

Cracker Barrel Old Country Store, Inc. ("Cracker Barrel") recently joined the list of companies who are part of the EEOC's National Universal Agreement to Mediate (NUAM) program to resolve employment discrimination claims. Rather than the EEOC engaging in a lengthy, formal investigation and litigation, the agreement would allow the EEOC and Cracker Barrel to informally resolve any workplace discrimination claims through Alternative Dispute Resolution. If you're interested in learning how a Universal Agreement to Mediate ("UAM") can benefit your company, our attorneys can help you figure out if entering into a UAM is the right decision for you. Our attorneys have helped many companies enter into this type of agreement.

There are over 200 national and regional private sector employers, including several Fortune 500 companies who have a similar arrangement with the EEOC. Some of the companies include: Ford Motor Company, Frito-Lay, Inc., Hewlett-Packard Company, Intel Corporation, Northwestern Mutual Life Insurance Company, Quest Diagnostics, Inc, and Tyson Foods, Inc.

This type of nationwide mediation agreement benefits everyone. Nicholas Inzeo, Director of the EEOC's Office of Field Programs has stated that "NUAMs are a nonadversarial and efficient way for companies to handle discrimination charge using the EEOC as a partner and adviser. EEOC mediation encourages a positive environment, and the company saves time and money."

According to the terms of the NUAM, if anybody files an eligible discrimination charge with the EEOC naming Cracker Barrel as an employer or respondent, the matter would be referred to the EEOC's mediation unit. As part of the NUAM, Cracker Barrel will name a corporate representative to handle any inquiries related to potential employment discrimination charges to help the EEOC with quick and efficient scheduling of mediation.

If your company is considering entering into a UAM with the EEOC, there are benefits to consider. Some of these include the following:

• a UAM shows that you are willing to mediate;

• the time involved in contacting an employer to see if they will mediate is shortened;

• a UAM expedites the flow of information between the EEOC and the employer;

• having a UAM expedites mediation scheduling; and

• allows both the EEOC and the employers to opt out of mediation on a case by cases basis if one of the parties thinks that the claim is not appropriate.

Certain types of claims are not eligible for mediation. These include class and systemic charges, claims filed under the Genetic Information Non-Discrimination Act, or claims filed solely under the Equal Pay Act. The EEOC also has the discretion to opt out of mediation in cases where it serves the public interest to investigate the claim.

The EEOC is pushing its mediation program in order to improve it own efficiency and effectiveness in dealing with workplace discrimination claims. Currently, the EEOC has 233 national and regional Universal Agreements to Mediate with private sector employers. The EEOC's district offices have entered into 1,743 mediation agreements with local level employers. Through its NUAM, the EEOC has mediated over 136,000 charges of employment discrimination since the program begin in April 1999. About 70% of these charges have been successfully resolved.

If you are interested in learning more about the NUAM program, call our Mediation Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you evaluate whether this program can help your company deal better and more cost effectively with employment discrimination claims.

Continue reading "EEOC Mediation Program: Alternative Way to Resolve Employment Discrimination Claims" »

The EEOC entered into a settlement recently with American Laser Centers ("ALC") for $125,000 as well as other relief for allegations of sexual harassment and retaliation. ALC is the country's largest provider of laser based skincare services, including laser hair removal, cellulite reduction and skin rejuvenation treatments. The company opened in 2002 and now has over 150 clinics nationwide.

The lawsuit alleged that the landlord of the facility was sexually harassing the female staff in one of ALC's clinics in Fresno, California since at least 2006. The landlord's harassment included leering, unwelcome touching, sexual advances and showing up at work visibly aroused. One employee felt threatened to that extent that she brought her brother to work for protection. The clinic manager and female employees complained to which ALC conducted a superficial investigation, finding no wrongdoing on the landlord's part and still left the women employees exposed to the landlord's sexual harassment. After reporting the landlord's harassment, the female clinic manager was fired. Our attorneys have helped many women as well as men who have faced sexual harassment and retaliation at the workplace. If you are being sexually harassment at your workplace, call us to discuss how we can help you.

EEOC filed a lawsuit in January 2010 alleging that ALC did not address the women's sexual harassment complaint and that the female clinic manager who complained about the sexual harassment was fired in retaliation, in violation of Title VII of the Civil Rights Act of 1964. The EEOC's investigation showed that ALC conducted a "superficial internal investigation with no finding of wrongdoing on the part of the landlord."

Title VII makes sexual harassment based on a hostile working environment illegal. At ALC, the women were harassed with the hostile work environment that was created by the landlord. This type of harassment results when a supervisor, co-worker, customer, vendor, or anyone that the employee comes in contact with engages in unwelcome and inappropriate sexually based behavior which makes the workplace severe or pervasive enough to create an abusive working environment. In other words, Title VII also prohibits an employer form allowing a third party to harass one of its employees. The EEOC's regional attorney, Anna Y. Park, commented that "We encourage employers to be vigilant about addressing complaints of harassment by third parties as well as employees. . . proactive action is important to prevent liability."

The settlement agreement, which involves a 3 year consent decree, provides for ALC to correct the sexual harassment as well as prevent future instances, discrimination and retaliation at not just the location in question, but in ALC's clinics around the bay area region as well. ALC must correct and implement anti-harassment and anti-retaliation policies and complaint procedures, annual training for staff, designation of an internal EEO officer,

Sexual harassment is a serious workplace problem faced not just be women but also men. It is illegal for a man to sexually harass a woman and vice versa. If any of your employees file a complaint or even verbally report sexual harassment, you should promptly and thoroughly investigate the matter. Keep a record of the complaint, the investigation, and everything you did to remedy the matter. Anyone found to be harassing another employee should be dealt with appropriately. If the harasser is not an employee, you still need to stop the harassment. Any failure on your part to investigate and stop the harassment can cause you unnecessary and costly litigation as well as negative publicity.

If you don't have an anti-harassment policy and a complaint procedure set up in your office, call our Sexual Harassment Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you prevent and deal with any instances of sexual harassment.

Continue reading "Employer Responsibility: Make Sure You Investigate Complaints of Sexual Harassment and Retaliation " »

FAQ: I own a small business and recently discovered that I had misclassified some of my workers and was not paying them accurate minimum wages and overtime pay. Can I be held personally liable to these employees for their unpaid compensation?

You ask an excellent question that our Wage and Hour Attorneys are often asked by the heads of many of our family owned businesses as well as small to large sized companies. The Judge in the New York Southern District Court recently ruled in Torres et al. v. Gristedes Operating Corp., et al., that Mr. Catsimatidis, the president and CEO, of a grocery chain was personally and individually liable to his employees for unpaid wages. Depending on your factual circumstances, you are at risk of being personally liable for your employees' unpaid compensation. Our Wage and Hour Attorneys have helped many companies properly classify their employees to avoid any potential personal liability.

The class action lawsuit alleged that Mr. Catsimatidis, Gristede's owner, misclassified hundreds of hourly workers as managers to avoid paying them overtime. The lawsuit originally began in 2004 and was settled in June of 2009 resulting in a $3.5 million settlement structured with a lump sum payment of $425,000 followed by installments. The settlement plan fell apart when Gristede's ran into financial trouble and missed its scheduled payments. Thereafter, the workers filed a motion for summary judgment seeking Mr. Catsimatidis personally liable for the payments.

Judge Paul A. Crotty found that under the Fair Labor Standards Act ("FLSA"), the owner, Mr. Catsimatidis was an employer under the law and thus jointly and severally liable for the millions due in overtime pay to the grocery workers.

In reaching its conclusion, the Court found that there was "no aspect of Gristede's operations from top to bottom and side to side which is beyond Mr. Catsimatidis' reach. There is no area of Gristede's which is not subject to his control, whether he chooses to exercise it." Mr. Catsimatidis' own affidavit showed that he was the sole owner, president and CEO of Gristede's and its parent company, which he owned for 20 years, and that he had the right to open, close and reopen stores. He also had the authority to set prices, pick out décor for the stores, and control the store's signs and advertising.

Although Mr. Catsimatidis argued that he should not be held liable merely because of his title, the Court found that he hired management, reviewed financial documents, worked in the corporate office, dealt with the company's day to day operations. The Court pointed out that even though he may have delegated certain power to others, Mr. Catsimatidis had the power to delegate. Thus, given all the circumstances and Mr. Catsimatidis' ownership and authority, he was an employer under the FSLA.

Torres v. Gristedes teaches an expensive lesson to all business owners, officers, directors, and executives who are under the illusion that they cannot be personally liable for their employees' unpaid compensation. If you have sufficient control and authority of your business, you are at risk for potential personal liability if your company is not financially strong enough to protect you. It is crucial that you classify your workers and pay them in accordance with state and federal law. Call our Wage and Hour Attorneys at Villanueva & Sanchala at (800) 893-9645 to help ensure that you are compliant with wage and hour laws to avoid any future potential personal liability.

Continue reading "Personal Liability for Unpaid Wages Caused by Misclassification of Independent Contractors " »

Although doing business with the U.S. government can be quite lucrative, any unlawful or fraudulent practices by your company can cost you heavily. The Justice Department just entered into a settlement with Oracle Corp. and Oracle America Inc. ("Oracle"), who have agreed to pay $199.5 million plus interest for violating the False Claims Act. This is the largest settlement ever obtained by the General Services Administration under this Act.

The lawsuit alleges that Oracle committed fraud in its dealings with the General Services Administrations ("GSA") regarding the sale of its software licenses and technical support. Oracle had entered into a contract with GSA through its Multiple Award Schedule (MAS) program which gave Oracle the benefit of selling its products to multiple government agencies. According to the MAS, Oracle had to agree to disclose its commercial pricing practices. PaulFrascella, a contract specialist working at Oracle at the time, discovered that Oracle was not disclosing its current and accurate information about its commercial sales practices and discounts it was offering to other clients.

The government also alleged because Oracle did not disclose higher discounts it offered to its commercial clients, the government was paying more than it should have. The lawsuit alleges that GSA purchased $1.08 billion in software from Oracle between 1998 and 2006. GSA received discounts ranging from 25 to 40 percent while Oracle gave other companies discounts ranging up to 92 percent.

In May 2007, Frascella filed the lawsuit on behalf of the government who joined the lawsuit last year. Pursuant to the False Claims Act, Frascella will get $40 million as his share of the recovery.

Tony West, Assistant Attorney General for the DOJ's Civil Division, stated that "Companies that engage in unlawful or fraudulent practices to secure government business undermine the integrity of the procurement process and create an unfair advantage against the majority of companies that are playing by the rules." He also stated that the government is committed to "ensure taxpayers are not overpaying for the products and services they receive."

Oracle has denied any wrongdoing and claims that it "had strong controls in place to insure that the government agencies who purchased from the GSA schedule received fair pricing." Oracle has claimed that it decided to settle because the events took place a long time ago and many witnesses are either unavailable or do not remember what happened.

This lawsuit sends a clear message to all businesses that if you do business with the government, make sure you comply with all contractual obligations and regulations. It is difficult to believe that a company as big as Oracle does not have records of its business transactions. With the help of whistleblowers, the government has been cracking down on violations of the False Claims Act. In fact, the Department of Justice has recovered over $7.8 billion since January 2009 for such violations. If you are doing business with the government, call our False Claims Act Attorneys at Villanueva & Sanchala at (800) 893-9645 to ensure that your company is in compliance with its government contracts.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Judge Nicholas G. Garaufis, a federal district court judge in Brooklyn, ruled this week that an independent monitor must be hired to watch and ensure that the New York Fire Department becomes more diverse in its hiring practices in order to remedy 40 years of employment discrimination that has been taking place against black and Hispanic firefighters. This decision came after 4 years of litigation in which the city and the Fire Department were accused of race discrimination in their hiring practices.

The Vulcan Society, a black fraternal FDNY organization, complained about 10 years ago that the Fire Department gave applicants an exam that was full of SAT like questions which did not test for firefighting skills. Although potential hirees also had to take a physical test, this exam played the biggest part in whether or not a candidate was hired. The lawsuit also charged the FDNY with the existence of an "old boy network" where the FDNY favored hiring friends, relatives, and neighbors over minority applicants who did not have any connections. Thereafter, the Justice Department took over the case.

The Judge's decision accuses Mayor Bloomberg of willfully ignoring the FDNY's racial imbalance. The Fire Department has remained 97 percent white for decades although the city's population is about 25 percent black. In his ruling, the Judge accused the City of "blame-shifting" and "accountability-avoidance" and also wrote that the "city still doesn't get it." The Judge wrote that instead of investigating the city's track record of hiring Black and Hispanic firefighters, the city "dug in and fought back." According to the Judge's ruling, a court appointed monitor will be appointed for at least 10 years to assess recruitment, testing and hiring of new firefighters.

Mayor Bloomberg has responded that his administration has done more than any of his predecessors to make the FDNY more diverse. He has stated that the FDNY has recently had a very successful diverse recruitment campaign which resulted in 61,000 applicants, of which half were minorities. Bloomberg also stated that the "judge was not elected to run the city, and you can rest assured that we'll be in court for a long time."

The judge basically ruled that the city and Mayor Bloomberg were not capable of ending the discriminatory hiring practices at the FDNY. The court's decision amounts to major judicial intervention and oversight of this country's largest fire department. This is an extremely important decision because it shows that courts will intervene and run your city or business if it believes that you can't correct discriminatory practices on your own.

If you or someone you care about has suffered from any type of discrimination at the workplace, including race, gender, pregnancy, age, sexual orientation, disability, national origin, or religion, call our experienced Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss your possible case.

Continue reading "Federal Lawsuit by Vulcan Society Finds Employment Discrimination is Ongoing Concern at FDNY" »

A whistleblower lawsuit affecting thousands of American veterans was recently unsealed which alleges 13 banks and mortgage companies cheated veterans of millions of dollars. The whistleblowers have accused companies such as Wells Fargo, Bank of America, GMAC Mortgage, and J.P. Morgan Chase of charging illegal fees to veterans refinancing their home loans which were guaranteed by the Department of Veterans Affairs. The suit alleges that the companies charged illegal fees and hid the charges to obtain government guarantees for the loans. Our firm has proudly represented many veterans in lending, housing and employment discrimination matters.

The lawsuit was brought in the District Court of the Northern District of Georgia by two mortgage brokers and remained sealed till now. The lawsuit alleges that by adding in prohibited charges to the allowed fees, banks collected between $300 to $1,000 in hidden fees per loan. The plaintiffs filed suit on behalf of the U.S. government under the False Claims Act and seek to recover $5,500 to $11,000 in damages for each violation. The plaintiffs are Victor E. Bibby, who is President and chief executive of U.S. Financial Services, a company which provides mortgage services, and Brian J. Donnelly, who is the company's vice president of operations. Donnelly helped veterans fill out their application forms and pick lenders for their loans.

The plaintiffs have stated that they were instructed by lenders not to show attorney's fees on their estimates and were told to add it to the title examination fee. In figuring out the fraud, Donnelly looked at the VA handbook regarding Interest Rate Reduction Refinancing Loans ("IRRRL Loans") which refers to fees that could be charged for transactions. According to the VA rules, veterans can be charged for recording fees and taxes, credit reports and other customary fees, but they cannot be charged for attorney's fees or settlement closing fees. The banks and mortgage companies got around this rule by charging attorneys fees and hiding it under "title examination" or "title search" fees.

The Justice Department has not taken over the case yet but is reserving its right to do so. Sally Quillian Yates, the U.S. attorney for the Northern District of Georgia has stated that she "will continue to evaluate the merits of the case," and "consider intervening. . . if it becomes appropriate to do so." The lawsuit alleges that the government and all taxpayers have clearly been defrauded since tens of thousands of VA loans have resulted in default or foreclosures which will cost the government and all taxpayers hundreds of millions of dollars.

If the government does not intervene, the whistleblowers can collect from 24% to 30% of the recovery. If the government does intervene and takes over the lawsuit, the whistleblowers can still recover 15% to 25% of any recovery. To bring a whistleblower lawsuit, you must be the first person to bring evidence of the fraud to the government's attention.

It is a outrage that such a massive fraud could be committed against veterans. In the past ten years, 1.2. million loans have been refinanced by veterans of which at 90% involved fraud. This fraud is not just a crime against veterans but is also a crime against all taxpayers. Since the U.S. government cannot possibly know of every fraud being committed against itself, the whistleblower statute is a great incentive for anyone who observes fraud being committed against the government. If you have observed fraud being committed against the government, call our experienced Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine if you have a qui tam whistleblower case under the False Claims Act.

Continue reading "Discrimination Against Veterans: Mortgage Brokers Blow Whistle Under False Claims Act for Fraud Against Veterans" »

The IRS just announced its Voluntary Classification Settlement Program ("VCSP") which will allow employers to reclassify their workers for federal tax purposes and only face a reduced penalty along with audit protection. This new tax relief program offers a great tax incentive for companies who want to reclassify their independent contractors as employees. Our law firm has represented many companies accused of misclassifying its workers and believes that this new IRS program could benefit many companies who face a misclassification investigation.

Many companies engage in misclassification of workers as independent contractors to avoid paying payroll taxes as well as workers' compensation. If audited by the IRS or the Department of Labor ("DOL"), these businesses not only face back taxes, but penalties and interest which can be economically devastating.

This program is open to you if you are a taxpaying employer and you employ independent contractors or other workers and want to begin classifying them as employees. In order to begin classify your workers as employees, you must meet the following conditions:

1) You must have filed all the required 1099 forms for the workers for the preceding 3 calendar years ending before the date you file Form 8952; and
2) You cannot currently be under audit by the IRS or by the Department of Labor for misclassification of these workers.

By voluntarily agreeing to prospectively classify your workers as employees, you would benefit from the following:

1) Pay only 10 percent of the employment tax liability that may have been due on compensation paid to the workers for the most recent tax year, as determined under the IRS' reduced rates;
2) Not be liable for any interest and penalties on the amount; and
3) Not be subject to an employment tax audit with respect to worker classification of the workers that are being reclassified pursuant to the VCSP for prior years.

The VCSP is a great incentive to employers who are misclassifying their workers as independent contractors to reclassify them as employees. Not only does the program offer a great economic incentive but helps you to avoid any potential future lawsuits or liabilities you may incur for misclassification in the event you are sued or investigated by the DOL. For example, if you paid $1,000,000 to workers that fall under the VCSP in 2010, and then you submit an application for the VCSP to begin treating your workers as employees beginning 01/01/12, the IRS would determine your tax liability for the year ended 2010. If the resulting employment taxes are on the $1,000,000 are $106,800, then under the VCSP, you would only pay 10% or $10,680 in taxes.

Although this is a great program, evaluate your workers and make sure that your workers really should be classified as employees before you enter into this program. Once you go to the IRS, you might end up paying unnecessary payroll taxes. Consult with an attorney to examine which of your workers should be treated as employees before you enter into the VCSP.

In order to apply for the VCSP, you must fill out Form 8952 at least 60 days from the date that you want to begin treating your workers as employees. With your application, be sure to provided a contact or a representative for Power of Attorney. Our Misclassification Attorneys at Villanueva & Sanchala are already in the process of helping many companies with this program. Call us at (800) 893-9645 to discuss how your company might benefit from entering this program.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.