New York Employment Lawyer Blog

New York Liquor License Lawyer Guest Q&A: Under what circumstances do you need a Warehouse Permit and what is the Notice of Publication?

Thu, 17 May 2012 11:57:17 -0500

We are pleased to continue our guest blog series on questions about the New York State liquor license. Our Westchester County and New York Lawyers have helped many applicants ranging from restaurants to liquor stores resolve various issues related to their liquor licenses as well as obtain their liquor license in an expedited manner.

FAQ: While renovating and planning the design of my new restaurant, I realized that my restaurant, which is located on the ground floor, does not have interior or direct access to the basement, where I will be storing beer, wine, and liquor. Do I need to get a Warehouse Permit even though the entrance to the basement is immediately next door?

Yes. If you are going to be using the basement for storage of alcoholic beverages and you do not have interior access from your restaurant to the basement, you must apply for a Warehouse Permit in order to store beer, wine, or alcohol. Even if the entrance to the basement is adjacent to your restaurant's door, you must obtain a warehouse permit. The fee for a warehouse permit is $788.00 for a period of 3 years and may be prorated depending on when you are filing. Along with the application, you must also submit a diagram of the area for which you are seeking a permit, proof of liability insurance, photographs of the interior and exterior of the area, and a penal bond in the sum of $5,000. The SLA will not issue a Warehouse Permit to certain persons licensed under the Alcohol Control Law unless they fall under one of the exceptions. Our attorneys can determine if you qualify for a Warehouse Permit or one of the exceptions.

Although you can down load the form from the SLA website and fill out it out yourself, we recommend you call our experienced attorneys to ensure that your warehouse permit gets approved without delay. Our attorneys will make sure that when you are ready to open your restaurant, your warehouse permit is also approved.

FAQ: What is the Notice of Publication and when do I have to file it?

After you have submitted your application for an on premises liquor license, you must publish a notice in a newspaper, designated by the County Clerk, once a week for two successive weeks. The publication requirements are different depending on which county you live in. Our attorneys can help you determine which newspaper to print in and how often depending on the location of your premises.

The Notice must stated what type of license you have applied for, what type of alcohol you will be selling, the type of establishment, and the location of the premises. Your name and the Trade Name, or the "DBA," must be at the bottom of the advertisement. You must make the first publication within 10 days of filing your on premises liquor license application. You need to obtain 2 original copies of proof of publication. You must submit one to the SLA within 15 days of receipt and keep the second copy for yourself. After having filed your on premises liquor license application and being in the process of getting your premises ready to open, you may easily forget to file the Notice of Publication. Be mindful that unless you show good cause, the SLA will not issue a license unless proof of publication is submitted within the 15 day period.

The Notice of Publication is just one facet of the application that makes it complicated and overwhelming especially if you are busy trying to get your restaurant ready to open. Missing or inaccurate information in your application can cause significant delay or rejection costing you thousands of dollars. Call our New York Liquor License Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you obtain your liquor license in an expedited manner so that you can focus on getting your business open.

NYC Liquor License Lawyer Guest Q&A: Is your on premises liquor establishment allowed to deliver beer or wine with a food delivery order and is BYOB legal in New York State under any circumstances?

Fri, 04 May 2012 09:00:07 -0500

FAQ: I own a restaurant with an on premises liquor license. I receive a large number of take out orders from my customers, some of whom would like to order wine or beer with their food. Is my restaurant allowed to deliver wine or beer with food?

If you have an on premises liquor license, you may deliver beer in containers with the food as long as the food order was received at the licensed premises. The order may be placed in person, by fax, or by telephone but must be placed at the premises. Although beer may be sold for off premise consumption, liquor and wine may only be consumed on the premises. The SLA prohibits the sale of wine or liquor for take out or delivery.

FAQ: Many of my restaurant patrons have asked me if they can bring their own liquor to the restaurant? Is BYOB, or bring your own bottle, allowed in New York State under any circumstances?

Although many restaurants permit their customers to bring their own bottle, they are breaking the law unless the alcohol they permit to be brought in is covered under their license and permitted to be brought in by the liquor license holder. In other words, if you don't have a liquor license to serve alcohol, your customers cannot bring in their own alcohol to consume on your establishment premises.

An important consideration to keep in mind is that if you are a new restaurant or an establishment that has just opened and has applied for a liquor license, you cannot allow your customers to bring alcohol during the time that you are waiting for your license. Doing so could put your application at risk of being delayed or rejected. Call our attorneys to learn how we can expedite the approval of your liquor license.

ABC law does provide one exception to this rule. If a building inspector has promulgated that your restaurant's maximum capacity is less than 20, then your establishment is exempted from the law prohibiting your customers from bringing in their own alcohol unless you have a valid liquor license for such alcohol. In other words, if your restaurant's certificate allows a maximum occupancy of less than 20, then your patrons can bring their own alcohol if you allow it.

Our experienced Liquor License Attorneys serve many clients, including first time applicants for liquor licenses, as well as those who filled out applications on their own and were rejected for various reasons. Although you can download an application from the SLA's website, it's in the best interest of you business to let our attorneys work on getting your application approved so that you can focus on getting your establishment open in a timely manner. Call our New York Liquor License Attorneys at Villanueva & Sanchala at (800) 893-9645 to answer all your questions about getting a liquor license and to help you get it quickly and without any delays.

NY State Liquor License Lawyer Guest Q&A: Can you hire an applicant with a criminal conviction for a felony to work in your restaurant which has an on premises liquor license?

Thu, 03 May 2012 13:15:40 -0500

FAQ: Are there any restrictions on who I can hire to work at my restaurant at which I have an on premises retail liquor license to serve beer, wine, and liquor?

Along with getting your liquor license and opening up your restaurant, you also have to make many business decisions including who you hire to ensure that your establishment succeeds. Our leading, award winning Westchester County Employment Law Attorneys have provided many businesses with practical, cost efficient solutions and ideas to develop best practices at the start of their business to avoid any future embarrassment, fines and penalties associated with violations, or unnecessary litigation. Our attorneys can help you make sure that you hire qualified employees who are legally allowed to work at your restaurant.

If you are an establishment with an on premises retail liquor license, you cannot knowingly hire a person who has been convicted of a New York State felony or other offense. ABC law §102.2 specifically provides that no person holding any license, other than a license to sell an alcoholic beverage for retail consumption off-premises or a license to sell an alcoholic beverage at retail for consumption on the premises where such license authorizes the sale of liquor, beer and or wine at a catering establishment, hotel, restaurant, club, or recreational facility, shall knowingly hire any person who has been convicted of a felony, or any of the following offenses listed in this section. Call our attorneys to conduct your due diligence when hiring to avoid any potential problems with the SLA. Our attorneys will conduct background checks, see if any exceptions apply, and make sure that your hiring practices are within the confines of the law and do not violate any employment laws.

The section also provides exceptions for persons convicted of a felony who have received an executive pardon, thereby removing any civil disabilities, a certificate of good conduct pursuant to article 23 of the correction law, or other relief from disabilities provided by law, or the SLA's written approval allowing such employment.

ABC law §102.2 also provides that once the SLA gives written approval to a licensee to hire a person who was convicted of a felony or any offenses listed in this section, another licensee can hire that person in the same capacity without having to get written approval again unless the prior approval was terminated or if the person was later convicted of a felony or other offense.

Our attorneys are experienced with all types of liquor licenses. If you're not sure what your specific license entitles you to or prohibits you from doing, call our attorneys to help you avoid the high cost of violations. Our attorneys are also experienced in obtaining liquor licenses for your restaurant, wine or liquor store, grocery store, catering establishment, hotel, or any other type of establishment in an expedited manner. Call our New York Liquor License Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you get your liquor license quickly so that you can focus on opening your establishment.

New York State SLA Lawyer Guest Q&A: Retail License Requirements and How do you Change or Transfer Your Liquor Store License to a New Location?

Tue, 01 May 2012 11:56:50 -0500

We are pleased to continue our guest blog series on questions about the New York State liquor license. Our Westchester County and New York Lawyers have helped many applicants ranging from restaurants to liquor stores obtain their liquor license in an expedited manner.

FAQ: I am planning to open up a restaurant with a bar in Westchester County. Are there any basic conditions I need to meet before I can apply for a license to serve beer, wine, and alcohol?

This is a great question to consider before you invest time and money in opening up a restaurant with the intent of being able serve beer, wine, and alcohol. If being able to serve alcoholic beverages is an important factor in your decision to open a restaurant, make sure you do not fall under any of the following statutory disqualifications to obtaining a retail liquor license:

If you are under the age of 21;
If you are not a U.S. citizen or an alien legally admitted to this country having a permanent lawful residency;
If you have been convicted of any felony which involves promoting or allowing prostitution, or the sale of liquor without a liquor license;
If you had a liquor license which has been revoked; or
If you have a wholesale license.

If any of the above applies to your situation, call our attorneys for more information and to discuss your chances of obtaining a liquor license. Applying for a New York State liquor license can be a very time consuming and costly process if not done accurately and completely. Missing information or documents can lead to delays or rejection of your application. Before you spend considerable time and money, call our attorneys to discuss the process and learn what you will need to get your application approved.

FAQ: The lease for my liquor store is about to expire and I am planning to move my liquor store to a new location. Do I need to file a new application for a liquor store license for the new location or is there a way to transfer my license to the new location?

You do not need to file a new application for a liquor store license if you are changing locations. In order to move your currently licensed premise to a new location, you need to file an application for Petition for Removal, which can be downloaded from the SLA's website. Similar to applying for a license for a liquor store, the removal application requires many documents, including financial information as well as diagrams and photographs of the premises. You also need to make sure that your new location is not within 200 feet of a school, church or other place of worship.

Although you can download this form from the SLA's website and fill out it out yourself, it is advisable to call our experienced attorneys to ensure that your application is accurate, complete and not missing any information which can lead to a delay in your application being approved. Until your removal petition is approved, make sure you do not close your original liquor store. Since timing will be extremely important in your move, call our attorneys to help make sure your relocation does not end up costing you time and money.

If you are interested in obtaining a liquor license for your restaurant, wine or liquor store, grocery store, catering establishment, hotel, or any other type of establishment, call our New York Liquor License Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you obtain your liquor license without any delays.

New York State Department of Labor (NYS DOL) Prevailing Wage Audit Lawyer - Q&A

Fri, 27 Apr 2012 16:37:21 -0500

Our NY Employment Law Attorneys have represented many business owners before the New York State Department of Labor regarding audits, investigations and hearings. In recent years, the DOL has increased its resources to scrutinize the employment practices of businesses. One division of the NYSDOL is dedicated to accepting and reviewing complaints of non-payment of prevailing wage for public projects. The compliance and audit process can be daunting. Call one of our experienced NYS Employment Lawyers at (800) 893-9645 if you received a notice or are being investigated by the agency. Our attorneys regularly lecture on New York Labor Law to other attorneys and human resources professionals and below are some frequently asked questions.

Why was my Company selected for an NY DOL Audit or Investigation?

A complaint may be commenced because (i) an individual filed a complaint in writing with the Bureau of Public Work or (ii) the Commissioner of Labor may on his or her own (either randomly or due to initiate a compliance investigation to confirm that your company has been paying the appropriate prevailing wage and supplements for public contracts. Generally, if the compliance review process is initiated because of an employee's complaint, the Department will seek to keep the employee's identity confidential.

What is the next step in the process?

Generally, the Bureau of Public Work will demand the following documents from you -- certified payroll records, daily time records, proof of payment of wages, i.e., cancelled checks and proof of the payment and/or providing of supplemental benefits. It is important to speak with an experienced attorney before you provide any records. The investigation will focus on whether the records demonstrate that you have underpaid or otherwise improperly paid your employees in violation of the Prevailing Wage regulations.

What are the potential penalties?

If you are found to have violated the Prevailing Wage law, you could be assessed a penalty for the amount of the underpayments plus 16% interest and a penalty of 25% of the underpayment of wages. This can add up to be a significant amount of money. Some contractors have been penalized over $100,000.00. Further, as a prime contractor, you could be liable for violations caused by your subcontractors. It is important to have experienced employment law counsel during the process.

Can I be barred from future public works projects if I am liable?

This is a possibility. Pursuant to paragraph 6 of subdivision 3 of Section 220-b of the Labor Law, a contractor has willfully violated Article 8 if it knows or should have known that it failed to pay the prevailing rates of wages and supplements to its employees. There are several situations that could form the basis for "willful" behavior under the statute - below is a partial list -

1. If you as a contractor had actual knowledge he/she was violating the law
2. Your experience as a contractor - was there credible evidence that you as a contractor "should have known" that you was violating Article 8, i.e., receipt of the prevailing rate schedule
3. Do you have prior history of violating prevailing rate violations
4. The degree of severity and nature of your violations. Notification by DOL that it views the contractor's act a violation and the contractor fails to take corrective action

What if I disagree with the DOL's findings?

You can request an administrative hearing.

What if I disagree with the Administrative Hearing?

After a determination is filed, an aggrieved party may file an appeal within 30 days pursuant to Article 78 of the New York Civil Practice Law. This appeal must be commenced in the NY Appellate Division of the Supreme Court.

Contact our NY Employment Lawyers to discuss your Notice of Audit or Investigation at (800) 893-9645. If you have not received a notice, you should review your business operations and ensure that you have created and implemented best business practices before you are audited.

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.

NYS SLA Lawyer Guest Blog: Liquor License Temporary Permit & BYOB FAQ's

Mon, 23 Apr 2012 13:15:05 -0500

We are pleased to continue our guest blog series on questions about the New York State liquor license. Our Westchester County and New York Lawyers have helped many applicants ranging from restaurants to liquor stores obtain their liquor license in an expedited manner.

FAQ: I recently opened a restaurant and am waiting for the New York State Liquor Authority ("SLA") to approve my application for a liquor license. In the meantime, can my customers bring their own beer or wine to the restaurant?

BYOB or "Bring Your Own Bottle" is basically where a restaurant allows its customers to bring their own beer, wine, or alcohol to drink at the premises. BYOB is not allowed in New York State at unlicensed businesses. In order to sell or serve beer, wine, or alcohol, you must have a liquor license. Even if you have applied for a license, you cannot allow your customers to bring their own alcoholic beverages to consume at your restaurant. Doing so could put your liquor license application at risk of being denied.

Our attorneys can help you expedite your liquor license application by filing an attorney certification along with your application. Call our attorneys for more information and to discuss how we can help you get your application approved faster.

FAQ: While I am waiting for my liquor license application to be approved, can I get a temporary permit to serve beer, wine, or alcohol at my restaurant?

Depending on your location and the type of license you are seeking, you may apply for a temporary permit. However, you must file the application for a temporary permit before or at the same time you file your application for a liquor license. Once issued, a temporary permit is valid for 90 days and can be extended for an additional 30 days if needed. You must file for renewal of the temporary permit before the existing temporary permit expires or your application may be denied.

If you are purchasing an existing business, the SLA may issue a temporary permit if the premises operated under a retail license within 30 days of the filing of your application for the temporary permit. In other words, the temporary permit would allow you what was permitted under the current license that it is replacing.

If you are purchasing a new business, the SLA may issue a temporary permit provided the application doesn't fall under certain exceptions. For example, the SLA will not issue a temporary permit for a wine or liquor store, for applications that come under the 500 Foot Rule, and for applicants seeking a liquor license in New York City, which covers the counties of Kings, Queens, Bronx, New York, and Staten Island.

Our attorneys have helped many businesses obtain various types of liquor licenses in an expedited manner. Although you can submit an application on your own, our experienced attorneys can make sure that your application is complete and accurate so as to avoid any unnecessary delay or denial. For more information on how to obtain a liquor license for your business, call our New York Liquor License Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you obtain your liquor license without any delays.

Misclassification, UIB Tax and Overtime Pay Lawyer Update: Fight Your Notice of Audit or Investigation by New York Department of Labor (NYS DOL)

Fri, 20 Apr 2012 12:10:59 -0500

Our Employment Law Attorneys have defended and protected many small businesses before the New York State Department of Labor (DOL) in Audits and Investigations. Your company could face government scrutiny and significant monetary penalties from several divisions within the DOL. Specifically, the Division of Labor Standards enforces unpaid wage claims including issues involving minimum wage and overtime pay and the Unemployment Insurance Tax Division enforces non-payment of required payroll taxes which may apply in situations where a worker was misclassified (innocently or intentionally) as an independent contractor instead of as an employee. Many of these issues are complex and technical in nature. These are serious issues and can include the imposition of personal and criminal liability. If you have received a notice from the Department of Labor, contact our office immediately at (800) 893-9645 to learn how to protect your business and its assets from costly penalties and fines.

Unemployment Insurance Benefits Tax Division - Overview

In recent years, the Unemployment Insurance Benefits Tax Division (UIB) has increased the number of audits it conducts. In fact, it is one of the few areas where government staffing has increased presumably because it generates significant revenue for New York State at a time when it is cash strapped. The UIB division may randomly audit your business or an audit may be initiated based upon a complaint or another triggering event. During such an audit, you will be asked to meet with the auditor and provide the following documents: General Ledger, Journals, Cash Book, Corporate Minute Book, Payroll Records, Copies of Social Security Returns, Copies of Unemployment Insurance Tax Returns (state and federal), Check Stubs and Annual Tax Returns. In addition, the auditor may make several surprise visits to your company's offices which can cause a disruption in your productivity and operation. The audit process can be daunting and expensive as the DOL will be looking for any errors (innocent or intentional) on your part and reasons to issue a penalty. The DOL may consider the non-payment of taxes fraud and a method to avoid providing required protections to workers. Employers must be careful as their actions before the DOL may have implications (and additional monetary penalties) with other government agencies. Our Employment Law Lawyers are experienced in protecting individual owners, businesses and minimizing their exposure during the audit process. Contact us at (800) 894-9645 to discuss your Notice or audit.

The Labor Standards Enforcement Division - Overview

Generally, this division will investigate complaints of unpaid wages made by an individual via phone, mail or in person. Upon receiving a complaint, the DOL will determine whether it has jurisdiction to adequately consider the matter. For example, if the complaint is not about unpaid wages but is limited to employment discrimination or sexual harassment, the complainant may be referred to the New York State Division on Human Rights or a similar government agency. If the agency does have jurisdiction over the complaint, the complainant will complete a Claim Form and a case number will be then issued. After such point, the DOL will contact you to advise you of the complaint and continue its investigation. The investigation may include interviews of witnesses and a review of your documentation and time records. Generally, you may be asked to provide the following documents: payroll records, quarterly tax filings, and annual tax returns. Under the NY Labor Law, you are required to keep accurate payroll and time records and if you fail to do so, it could have a negative impact on your defense and the DOL could penalize you. If you fail to respond to the Investigator, the investigator may come to your office. The Complaint is not something that should be ignored. During the investigation, a compliance conference may be scheduled with you and the complainant at the DOL's offices to reach a resolution. Many employers complain that the DOL process is slanted in the employee's favor. Indeed, in recent years, the penalty amounts that can be issued against employers have increased. If you do not have a strong experienced advocate, this process can be a difficult one.

If the DOL finds that you have violated the New York State Labor Law and you fail to make restitution (i.e., pay back wages and any assessed fines and penalties), an Order to Comply may be issued by the Commissioner of Labor. If you do not appeal the Order and do not pay, a criminal prosecution by the New York State Attorney General may be initiated.

NY SLA Lawyer Guest Q&A: How to obtain a liquor license for a restaurant in New York & What is the 200 Foot Rule?

Thu, 19 Apr 2012 14:38:12 -0500

We are pleased to continue our guest blog series on a topic that we have been getting many questions. Our Westchester County and New York Lawyers have helped many applicants ranging from restaurants to liquor stores obtain their liquor license in an expedited manner.

FAQ: I am planning to open up a restaurant in Nyack, New York and need a liquor license to serve beer, wine, and alcohol. What is the quickest way to get a license?

In order to serve beer, wine, and alcohol at your restaurant, you need to apply for an on-premises liquor license. The New York State Liquor Authority ("SLA") allows an attorney who has reviewed an on premises liquor license application and its supporting documents to submit an Attorney Certification Form, which can expedite the processing of your application. In other words, if you submit an Attorney Certification along with your application, your application processing time may be reduced by months. Depending on the facts of your specific application, our attorneys can advise you of the best approach.

FAQ: What is the 200 Foot Rule and how do I measure the distance from my restaurant to a nearby school to determine if I am in compliance?

Before settling on a place to open a liquor store or a restaurant where you plan to serve alcohol, make sure you are in compliance with the 200 Foot Rule. The Rule provides that if the location of your establishment is on the same street and within 200 feet of a building that is used only as a school, church, synagogue or other place of worship, the SLA will not issue certain types of licenses. This Rule applies to any retail establishment where liquor will be sold for consumption on the premises and any retail establishment where liquor or wine will be sold for consumption off the premises.

If the Rule applies to your location, the SLA does not have the power to approve your application, even if the school or place of worship consents to the license being issued. In the event a license was somehow issued in violation of this Rule, the SLA cannot allow it to continue when the license comes up for renewal. The exceptions to the Rule are as follows:

The establishment has been in operation since December 5, 1933;
The SLA can renew the license and approve applications to transfer ownership if the location was licensed before the school or place of worship was in existence;
If a hotel has an existing "RL" (restaurant liquor), it may get a "HL" (hotel liquor) license;
If the club seeking the license is affiliated with the school or place of worship, then it may obtain a "CL" (club liquor) license;
A legitimate theater operated by a not-for-profit organization; or
The SLA may allow a licensee to move a licensed premise that has an exception to another location within 200 feet of the school or place of worship if the new location is not closer than the old location.

Measuring 200 Feet

It is extremely important that you take accurate measurements if you are planning to obtain a license for a premises that is near a school or place of worship. Take the measurement in a straight line, from the center of the nearest entrance of the school or place of worship to the center of the nearest entrance of your restaurant. If the restaurant, school, or place of worship has more than one entrance or exit, use the one that is regularly used to give ingress. For example, if measuring the distance to a school, use the entrance the students regularly use to enter and exit the building, not the emergency or fire exit, or the entrance used for maintenance access. If your restaurant is located on the 3rd floor of a building, then you would measure from the building entrance at street level. Given the significance of this rule, it is advisable that you consult our Liquor License Attorneys to ensure that your restaurant is in compliance with this Rule.

Obtaining a liquor license in New York has become a very complicated matter. The application itself can be very overwhelming. Although you can fill out it yourself, it is advisable to have one of our experienced attorneys guide you through the process. Any missing or incorrect information could lead to delay or your application being rejected. Call our New York Liquor License Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you obtain your liquor license without any delays.

New York City Settles Claims of Discrimination and Retaliation by African American Official

Wed, 18 Apr 2012 12:38:45 -0500

New York City recently agreed to settle allegations of race discrimination and retaliation by an African American official working at the city's Human Resources Administration ("HRA"). Sandra Glaves-Morgan had claimed in her lawsuit that the agency's commissioner and others retaliated against her because she complained about contracting practices.

The City decided to settle the case for $750,000 after Glaves-Morgan won a jury trial in the U.S. Southern District Court of New York on her discrimination and retaliation claim. The jury awarded her $420,000 in compensatory damages, found that she was entitled to punitive damages, and awarded her legal fees which are estimated to be around $720,000. The settlement includes no admission of liability on the City's part and was reached before the jury could deliberate on the punitive damages amount. If you have been discriminated against at your place of employment because of your race or sex, our attorneys can help you determine if you have a claim against your employer.

Glaves-Morgan is a naturalized citizen from Jamaica who graduated from Yale and has a law degree from Brooklyn Law School. After having worked at the Legal Aid Society, the state comptroller's office, and the Board of Education, she began working at the HRA in 1995 as a deputy general counsel and was later appointed as chief contracts officer. Glaves-Morgan alleged that in that position, she felt that vendors whose employees were members of Local 32BJ of the Service Employees International Union were given preferential treatment in contracting.

Glaves-Morgan raised this issue in 2007 with the agency's new commissioner, Robert Doar, who had just been appointed by Mayor Michael Bloomberg. However, he later demoted her. She also alleged that every time her assignments and duties were taken from her, they went to somebody who was not African American. She was also told that her salary would be cut 20% and that she would be relocated to an office in Brooklyn, but that at least she would not be "cleaning washrooms."

The City denied the charges and defended Doar as having a solid record of promoting minority groups, women, and people of color. The HRA's spokeswoman, Connie Ress, stated that the allegations of discrimination against the agency officials were "wholly without merit."

It is illegal to discriminate against an individual on the basis of their race, color, religion, national origin, or sex with respect to any aspect of employment, including firing, hiring, promotions, pay, layoff, training, or any other term or condition of employment. The law also prohibits retaliation against a person because he or she complained about discrimination, filed a charge of discrimination, or took part in an employment discrimination investigation or lawsuit.

It is a shame that a city agency such as the Human Resources Administration which serves more than 3 million New Yorkers was found by a jury to have engaged in employment discrimination and retaliation. Unfortunately, race and sex discrimination exist even in a city as diverse as New York City. Don't let race discrimination stop you from reaching your full potential at your place of employment. If you are being discriminated against at your workplace, call our Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you figure out your best course of action.

New York SLA Lawyer Guest Q&A: On Premises Liquor License Application For Your Restaurant

Thu, 12 Apr 2012 16:22:22 -0500

We are pleased to present you with a guest blog this week on a topic that we have been getting many questions. Our Westchester County and New York Lawyers have helped many applicants ranging from restaurants to liquor stores obtain their liquor license in an expedited manner.

FAQ: I am thinking of opening up a restaurant with a full bar in Westchester County, New York. What do I need to do to get a license to serve beer, wine, and alcohol? Should I hire an attorney to help me obtain this license or can I file the application myself?

Obtaining a liquor license in this state has become a very complicated and difficult procedure. The type of license you are seeking is called an on premises liquor license and would allow your restaurant to serve beer, wine, and alcohol for consumption in the restaurant. Although you can visit the New York State Liquor Authority ("SLA") website, download an application and fill it out yourself, it is advisable to hire an experienced attorney to ensure that your application is complete and accurate. Incomplete applications or missing information can cause great delay in the approval process. Our attorneys have also filed Attorney Certifications to help many restaurant owners save months of waiting for their application to be approved.

In addition to your application for an on premises liquor license, you must also provide various documents, financial information, fill out personal questionnaires, as well as provide various photographs and diagrams, just to name a few things. Given the extensive nature of this information, this blog will only address a few of the most important considerations prior to filing your application.

If you are a new applicant or a licensee seeking a renewal of an on premises liquor license, you must file a 30 day advance Notification to the Local Municipality or Community Board of the town in which you wish to obtain such license. In other words, at least 30 days before you file your application for an on premises liquor license for your restaurant, you must notify your Local Municipality of your intent so that they can express any objections they might have.

Your restaurant's location and surroundings are also important factors in determining whether and how long it will take your application to get approved. For example, the 200 Feet rule is an extremely important consideration to take into account before you file an application for an on premises liquor license. The Rule provides that an establishment cannot be licensed to sell liquor at retail if it is on the same street and within 200 feet of a school, church, synagogue or other place of worship. The SLA specifically sets forth how to take measurements for this rule. Given its complexity and importance, it is advisable to hire an attorney to ensure that you are in compliance.

The 500 Feet Rule is another important consideration prior to filing your application. The Rule provides that when applying for an on premises liquor license, if there are already 3 or more establishments with the same type of license within 500 feet of the premises you wish to license, then your license cannot be approved unless the SLA finds that issuing the license would be in the public's best interests. The Rule requires the SLA to consult with the community board to conduct a hearing to determine whether issuing a license would be in the public's best interest. Our attorneys have helped many restaurant owners wishing to obtain an on premises liquor license ensure that this rule did not prevent or delay their chances of obtaining a license.

If you're interested in obtaining a liquor license, whether it is for a restaurant, bar or pub, grocery store, or liquor store and time is of the essence, our experienced attorneys will give you personalized attention to make sure that you application gets approved in the fastest time possible. Call our New York Liquor License Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you obtain your liquor license without any delays.

Employment Discrimination Update: Failing to Reasonably Accommodate Your Employee's Religious Beliefs or Practices Can Cost You

Thu, 05 Apr 2012 17:40:57 -0500

The EEOC settled a religious discrimination lawsuit this week with AutoZone, Inc., a national distributor and retailer of automobile parts. The Agency had charged the company with violating federal law by subjecting its employee, Frank Mahoney Burroughs who had converted to the Sikh religion, to harassment and refused to accommodate his religious belief of wearing a turbin.

If you have been discriminated against at your place of employment because of your religious beliefs or practices or your employer has failed to reasonably accommodate your religious beliefs or practices, our attorneys can help you determine you best course of action to recover your workplace rights.

Burroughs alleged that the harassment began when he converted to Sikhism in 2009. The managers at the store refused to let him wear a turban and a kara, a bracelet, which are required for male Sikhs. He was also harassed and asked if he had joined al-Qaida and whether he was a terrorist. When customers referred to him as "Bin Laden" and made terrorist jokes, AutoZone did not intervene. When Burroughs complained and asked for an accommodation, he was fired.

The EEOC had filed the action in the U.S. District Court for the Eastern District of Massachusetts in Boston in September 2010, alleging that Burroughs was discriminated against because of his religion and then retaliated against for complaining and asking for a reasonable accommodation. Earlier this year in January, after the court ruled that AutoZone did fail to accommodate Burrough's need to wear a turbin, the company agreed to the consent decree.

The agreement provides for the payment of $75,000 and for AutoZone to adopt a policy prohibiting religious discrimination. It also requires the company to train its managers and human resource employees on religious discrimination and the new policy, report to the EEOC on how it is handling all requests for religious accommodation and complaints of religious harassment, distribute its new policy, and provide a notice about the consent decree to its 65,000 employees in its 4,500 stores across the country.

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against an individual because of his or her religion with respect to any aspect of employment including hiring, firing, pay, training, job assignment, promotion, layoff, or any other term or condition of employment. Religious discrimination occurs when you treat an employee or job applicant unfavorably because of their religious beliefs. You are protected whether you belong to a traditional, organized religion such as Christianity, Hinduism, or Judaism and even if you have sincere religious, ethical or moral beliefs.
It is also illegal to harass a person because of his or her religious beliefs. For example, offensive remarks about a person's religious beliefs are considered harassment. Although simple teasing and isolated comments may be harmless, harassment may become illegal if it becomes so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision such as an employee being terminated.

Unless it would be an undue hardship on your company's business operations, you must reasonably accommodate an employee's religious belief and practices. This refers to schedule changes, leave for religious observance as well as dress or grooming practices related to a religious reason. For example, this could include wearing a Muslim headscarf, a Jewish yarmulke, or a not cutting your hair and beard if you are a Sikh male.

AutoZone's failure to stop the harassment and refusal to accommodate their employee's religious beliefs was clearly shameful and unreasonable. If you're being harassed at your workplace because of your religious beliefs, call our Religious Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your rights at the workplace.

Employment Discrimination Update: AT&T Sued for Failure to Provide Reasonable Accommodation to Disability

Wed, 04 Apr 2012 11:20:40 -0500

The EEOC brought an action this week against telecommunication giant AT&T for allegedly discriminating against an employee because of her disability. The lawsuit has charged the company with not providing the employee a reasonable accommodation and then terminating her because of such disability.

Our attorneys have helped many individuals obtain reasonable accommodation for their disability as well as settle and successfully pursue claims of disability discrimination. If you have been discriminated against because of your disability, our attorneys can you help you figure out your best course of action.

The complaint alleges that Lupe Cardona, who was employed at AT&T as a corporate service representative in Indianapolis since 1984, asked for a finite leave of absence as a reasonable accommodation to get treatment for Hepatitis C. Without receiving the treatment, her disease would eventually have been fatal. AT&T gave her the requested leave when they learned about her disability and treatment. Accordingly, Cardona took her approved, paid medical leave from June 24 to October 24, 2010. Thereafter, having been treated successfully, her doctor allowed her to go back to work without any restrictions. Two days after coming back to work, AT&T fired her on the basis that her leave of absence violated their attendance policy.

AT&T would not give Cardona reasonable accommodation which they could easily have done by exempting her from their no-fault attendance policy. Before filing this lawsuit, the EEOC also tried reach a pre-litigation settlement. The EEOC's suit seeks back pay, compensatory and punitive damages and reinstatement of front pay as well as injunctive relief for the employee. The complaint also wants the court to issue an order stopping AT&T from failing to provide reasonable accommodation to disabled employees by counting absences which were caused by their disability as "chargeable," or unprotected absences under its attendance policy.

EEOC trial attorney Patrick Holman stated that "The refusal of AT&T to make a perfectly reasonable exception to its draconian attendance policy to accommodate the known disability of an employee violated federal law as well as common sense and common decency."

The Americans with Disabilities Act makes it illegal for private employers to discriminate against qualified individuals with disabilities with respect to hiring, firing, promotions, compensation, training, and any other terms or conditions of employment. The Act applies to employers with 15 or more employees, including state and local governments.

An individual with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. A qualified individual with a disability is an individual, who with or without reasonable accommodation can perform the job's essential functions.

The Act provides that an employer is required to make a reasonable accommodation to the known disability of a qualified individual if it would not impose an "undue hardship" on the operations of the business. An undue hardship may be posed if it requires great difficulty or expense when other factors such as the employer's size, financial resources, and company structure are considered. For example, it may be an undue hardship for a company to buy modifying equipment costing tens of thousands of dollars if it is operating at a loss.

It is shocking that a company such as AT&T couldn't reasonably accommodate a woman for her medical treatment who had been an employee for 16 years. Even if AT&T's attendance policy is very strict, it was unreasonable not to make an exception in this case. If you have been discriminated against because of a disability or your employer has failed to provide you with a reasonable accommodation, call our Disability Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your rights at the workplace.

Employment Discrimination Update: Bayer Fails to Bar Class Action by Lawsuit Alleging Sex Bias

Tue, 03 Apr 2012 16:09:40 -0500

A New Jersey District Court Judge this week denied Bayer HealthCare Pharmaceuticals' ("Bayer") request to stop eight women from being considered for a class action. The complaint alleges violations under the Equal Pay Act and charges of discrimination in pay and promotions.

The women's class action lawsuit seeks declaratory and injunctive relief, back pay, front pay, lost benefits, compensatory, nominal and punitive damages in the amount of $100 million or more for all female employees similarly situated. The group of women holds positions which include that of Associate Director, Deputy Director, and Director in the Women's Healthcare and Oncology Division. If you feel you have been discriminated against regarding any aspect of employment because of your sex, call our attorneys to determine the strength of your discrimination claims.

The women's complaint was filed in March, 2011 and originally brought by 6 women on behalf of themselves and a class of female employees under Title VII of the 1964 Civil Rights Act and New Jersey law. The complaint charged Bayer with a pattern and practice of discrimination in pay, promotions, and the treatment of pregnant women and mothers. The complaint set forth that Bayer has published and handed out articles that implied that men were better suited to be managers than women and described women as prone to "mood swings," "indecision," and "backstabbing." It also stated that "women with power are loose cannons who often feel threatened by colleagues." The complaint also alleged that senior managers made negative remarks about childcare responsibilities and passed over for promotions women who used maternity leave.

Before bringing this lawsuit, the women filed internal complaints which went unaddressed. After filing their complaint, Bayer's managers told them that they should "know better" and that the "company won't do anything about their complaints." Bayer's human resources department told the women that their complaints of gender discrimination should be handled by themselves and not the company.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in pay based on sex and the Equal Pay Act provides that men and women in the same workplace should be paid the same for doing the same work. Although the jobs do not need to be identical, they must be substantially equal. Both Acts cover every aspect of pay including salary, overtime pay, bonuses, stock options, life insurance, vacation and holiday pay, as well as benefits and compensation. If you are earning less and doing the same work as a male employee in your company, your boss may not lower his wages to equalize your pay.

It is a shame that a multinational pharmaceutical giant such as Bayer refused to provide equal treatment to its female employees. Even in this day and age, sex discrimination blatantly exists. If you are earning less than your male counterpart or being passed up for promotions because of your sex or because you took your federally protected right to maternity leave, call our Gender Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you recover your workplace rights.

Invasion of Privacy or Good Hiring Practice? Use of Facebook and Social Media by Employers

Mon, 02 Apr 2012 11:41:53 -0500

Update: Facebook has responded to this controversy: It is warning employers not to demand passwords of job applicants and employees because it is an invasion of privacy. The Company's Chief Privacy Officer, tells applicants to never reveal their password to an employer.

Our White Plains Employment Lawyers have been asked about whether employers should use social media in hiring decisions. Many employers have been reluctant to use Facebook or other social media sites to investigate prospective job applicants for fear of discrimination claims. For example, if an employer viewed and considered the contents of a candidate's Facebook page and then rejected the applicant, the company could face an employment discrimination claim. Specifically, the prospective employee could allege that Company learned information about him or her that it is could not use in the hiring process (e.g., applicant's race, age, gender, disability status, etc.). Despite the risk, some employers still prefer to view a candidate's online profile. In order to minimize legal exposure, companies will assign a HR employee who is separate from the hiring manager to review a candidate's online profile to verify it is consistent with the job application. Under this system, this HR employee does not speak with the hiring manager unless a red flag is detected such as a material misstatement in the employment application.

However, recently, many companies are taking a more aggressive approach towards social media and asking for employees to provide their personal passwords or allow access to private profiles on sites such as Facebook, Twitter, and LinkedIn, to name just a few. Many applicants and employees believe that it is an invasion of privacy and have to balance a possible invasion of privacy versus possibly getting employment in a tough job market. Many Facebook users are creating two accounts, one for their personal use and one to provide to employers if asked. Employees have the right to refuse; however, private employers may have the right deny the employee employment or continued employment. Employers argue they have a legitimate need to view online profiles. For example, they may want to ensure that employees are not disparaging the company, its products or harassing other employees. In addition, studies have shown that a brief review of a candidate's online profile can be very useful in revealing more information than a personality test.

More than ever, it is imperative for companies to have a well-crafted social media policy. Our attorneys have helped many companies develop and implement policies depending on their companies' needs. These policies coupled with best practices can help many employers avoid costly litigation including claims of discrimination.

Illustration of an Organization Using Facebook: Last year, a corrections officer at Maryland's Department of Corrections ("DOC") complained to the ACLU that he was forced to provide his Facebook user name and password during an interview. The DOC wanted to make sure that they did not hire anyone affiliated with a gang. After the ACLU intervened, the DOC suspended the policy but came up with another one. Potential hires are now asked during their interviews to log into their Facebook accounts and allow the interviewer to watch the potential hire go through posts, friends, pictures and any other material that may be behind the privacy wall.

Of the 2,689 applicants it reviewed through social media, the Maryland DOC denied jobs to 7 of them because their sites contained pictures of them with gang signs. It also did offer jobs to 5 out of 80 employees hired in the last three hiring cycles who did not provide social media access. Access could be a double edged sword for employers.

Given the impact of social media's influence on individuals' lives as well as businesses, the use of social media in employment settings is evolving. Maryland and Illinois have proposed legislation that would make it illegal for employers to ask job applicants to provide passwords to their social media sites during job interviews. Perhaps other states will follow their lead. In the meantime, companies must be smart as to how they use social media. If you would like to discuss how your online profiles were used in your hiring situation, contact our Social Media Employment Law Attorneys at (800) 893-9645.

False Claims Act Update: Huge Recovery by Whistleblower for Allegations of Illegal Marketing of Unapproved Drugs

Fri, 30 Mar 2012 09:29:12 -0500

The Department of Justice agreed this week to a $2.8 million settlement with Cypress Pharmaceuticals Inc. ("Cypress"), its subsidiary Hawthorn Pharmaceuticals Inc. ("Hawthorn") and its CEO Max Draughn to resolve allegations of violating the False Claims Act. Robert Heiden, a district sales manager who worked at Hawthorn between October 2005 and October 2006, filed this whistleblower lawsuit in the U.S. District Court in Texas.

Heiden's whistleblower complaint charged Cypress, Hawthorn and the CEO with illegally marketing drugs which were not FDA approved. If you have knowledge of fraud being committed against the government at your place of employment, call our attorneys to help you figure out if you have a qui tam whistleblower action under the False Claims Act.

The government had alleged that between 2003 and 2009, Cypress, Hawthorn, and Draughn marketed three drugs that were not approved by the FDA as safe and effective. The 3 drugs were Hylira, a gel marketed to treat dry skin, and Zaclir and Zacare which were both for the treatment of acne.

The government alleged that although the drugs did not have a "safe and effective" designation, pharmaceutical sales representatives improperly promoted the drugs to physicians and Medicaid officials. Sales reps were instructed to give pharmacists free samples to try to make them stock the drugs. This caused state Medicaid programs and TRICARE, the U.S. military health care program, to improperly pay for these drugs. This also resulted in false quarterly reports being filed with the Centers for Medicare and Medicaid Services, since the drugs did not qualify as outpatient drugs which could be covered for payment.

Heiden alleged that he was fired for refusing to offer "illegal inducements to pharmacies and pharmacists." He will receive over $300,000 for his part in reporting the fraud. He stated that the "impact of this case goes beyond the money recovered . . . My case and the government response mean that children are now protected from the dangers of certain drugs whose safety and effectiveness haven't been determined."

Stuart F. Delery, the Acting Assistant Attorney General for the Justice Department's Civil Division, stated that "The marketing and promotion of unapproved new drugs undermines the FDA's important role in protecting the American public."

The qui tam provision of the False Claims Act is a great weapon benefitting the government and the whistleblower for his or her trouble. The statute provides that an individual with knowledge of fraud being committed against the government can bring an action on behalf of the government. If liability is found, the Act imposes treble damages and penalties which range from $5,500 to $11,000 per claim. Depending on whether the government intervenes in the action, a whistleblower may be entitled to recover anywhere between 15% to 30% of the government's recovery. Most importantly, you must be the first person to bring the fraud to the government's attention. In other words, you cannot "blow the whistle" on the evening news and then file a qui tam action.

Heiden's whistleblower complaint made a huge difference in not only saving the government money but also in stopping the false marketing of drugs which were not FDA approved as "safe and effective." If you know of fraud being committed against the government, call our Whistleblower Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you determine if you have a claim under the False Claims Act.