Jeffrey Landes, Susan Gross Sholinsky Quoted in Article "Retailers Facing Employment Law Vulnerabilities"

Increased government regulatory activity has been on the minds of most employers for the past several years, and U.S. retailers are no exception. At a roundtable event tailored exclusively to their retail clients, lawyers from Epstein Becker Green discussed some of the key legal risks members of the industry are facing.

In an interview, Jeffrey Landes and Susan Gross Sholinsky, partners in the firm's labor and employment practice, told CorpCounsel.com that certain features peculiar to the retail industry give rise to increased vulnerabilities on some fronts.

For instance, says Landes, the luxury retail world in particular can place demands on employees around the clock. When non-exempt employees communicate with clients via smartphones 24/7, he says, that can present problems from a wage-and-hour standpoint. ...

The lawyers don't recommend creating unpaid internships, but if retailers opt to do so, Landes says there should be multiple programs, run by different managers, within any organization. "It's really all about observing and shadowing the designers," he says. "It's not about doing things that are going to benefit the company. It's got to be an educational experience." ...

In New York, where the lawyers are based, state law goes beyond that of many jurisdictions if offering worker protections. The state requires employers to take into consideration factors such as how long ago the crime occurred, how old the employee was at the time, how related the crime is to the type of work, and how well the person has rehabilitated themselves. Sholinsky says, "We recommend that employers use the balancing test that's propounded by New York State law, even though it's not legally required." ...

The compiled information documents allegations, not convictions, and Sholinsky warns that the data isn't as reliable as conviction information. "This is more like a list of arrests as opposed to convictions," she says. "The EEOC in particular has come out and said it's not fair to use arrest information in hiring."