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On April 1, 2021, Long Island employment lawyers Famighetti & Weinick PLLC filed a Petition for Writ of Certiorari with the United States Supreme Court. The Petition asks the court to take up a case concerning the due process rights of public employees. Today’s Long Island employment law blog discusses the case and the petition.

Since 2019, employment attorney Matt Weinick has worked as co-counsel representing four former high ranking New York City Police Department officers. On behalf of the officers and along with co-counsel, the firm filed a lawsuit in the Southern District of New York alleging that the City of New York Police Department deprived the officers of due process by coercing their resignations without providing notice of charges against them or an opportunity to be heard about allegations of wrongdoing, constituting a deprivation of due process. The complaint alleged that the City acted to avoid a departmental hearing and wanted the officers removed from the department to take the fall for ongoing allegations of widespread corruption in the department. The case received press attention from, among other papers, the New York Post.

After the lawsuit was filed, the City ask the court to dismiss the case. The City argued that a 1984 case decided by New York’s federal appellate court, prohibited employees from suing municipalities for a violation of due process, when the claim is based on an allegation that the employees’ resignations were coerced. The trial court agreed and dismissed the case.

On March 26, 2021, the New York State Division of Human Rights issued a determination of Probable Cause in a firm’s religious discrimination case. Today’s Long Island employment law blog discusses the case and what happens next.

The following is taken from the New York State Division of Human Right’s final investigation report.

The firm’s client, a Muslim, worked for an ambulance company as a driver. When he was first hired, he was told he would have to shave his beard, which he initially did, but told the company he maintained his beard because of religious beliefs. He interprets his religious teachings as prohibiting Muslims from cutting their beards.

In November 2020, the Long Island employment law firm Famighetti & Weinick PLLC filed a federal lawsuit against a Long Island volunteer fire department on behalf of a female volunteer firefighter. The lawsuit alleged that the department discriminated against the firefighter based on her sex, then retaliated against her when she complained about the discrimination. The fire department asked the court to dismiss the case. Today’s Long Island employment law blog discusses the lawsuit, the department’s motion, and the court’s decision.

The lawsuit alleges that the female volunteer firefighter is currently the only female in the department. Unlike her male counterparts, the female firefighter alleged that she was treated differently by being subject to unwarranted scrutiny over work on department committees. She further alleged that stipends and budgets under her control were cut to levels lower than males who had previously held her position.

After years of ongoing disparate treatment, the firefighter eventually brought her complaints to the department’s attention. After making the complaint, individuals in the department tried to oust her from her position as an officer of the department, and took other action allegedly in retaliation for her complaints. Ultimately, the fire department decided that her claims lacked merit, so she filed a charge of discrimination with the Equal Employment Opportunity Commission.

The Equal Employment Opportunity Commission is the federal agency charged with investigating and regulating workplace discrimination. Before filing a lawsuit in court, employees must first file a charge with the EEOC. Each year, the EEOC tracks the cases filed by charge type, meaning the type of the discrimination the employee is alleging. The EEOC has published its 2020 employment discrimination statistics. Today’s Long Island employment law blog takes a closer look at the numbers, and in particular, we take a look at what’s happening in New York.

Overall, across the entire country and the EEOC’s jurisdiction, 67,448 charges were filed. Later, we’ll discuss that there may be factors to consider other than less employees are filing charges, but 2020 marks the fourth straight year of declining charges, and nearly a decade of an overall average decrease in total filings.

New York is following the national trend. In 2020, 2,999 charges were filed, down from 3,220 the year before. This is also the fourth year of declines. The following chart shows that, with the exception of a few upward ticks, the trend has generally been less and less filings since the reporting started in 2009.

New York State is generally considered an at-will employment state. Employment at-will means that employers can fire employees for any reason or no reason at all, unless the termination would be a violation of law. Examples of violations of law include unlawful discrimination or retaliation.

Other exceptions to at-will employment in New York include circumstances where the employee has an employment contract which alters the employment at-will default rule. Employees, typically high ranking executives or professionals such as doctors and lawyers, may have individual employment contracts. Other employees such as laborers, may have union contracts, known as collective bargaining agreements. Additionally, government employees may have job protection under the Civil Service Laws.

But, most employees in New York are at-will and have no job protection.

Long Island employment lawyer Peter Famighetti has won a ruling on a threshold issue concerning an arbitration for a faculty member of Nassau Community College. Famighetti represents a college professor in a dispute related to the professor’s bid to become chairperson of his department. The professor alleged the teachers’ collective bargaining agreement was violated during the election process and ultimately filed a grievance to challenge the election process. Today’s Long Island employment law blog discuss what happened next in the grievance process.

After the professor started the grievance process via his union, the college challenged whether the professor’s issue could be heard in an arbitration. The college asserted two primary arguments. First, the college lodged a procedural arbitrability argument. This means that the college argued that the professor’s issues could not be arbitrated because, procedurally, he waited too long to file an initial grievance. In other words, the college alleged that the union contract’s deadlines for filing a grievance were not met by the professor.

Second, the college made a substantive arbitrability argument. This means the college argued that the professor’s issue could not be arbitrated because a determination had already been made in another professor’s grievance proceeding which addressed the same issues presented in this professor’s grievance. Because of that determination, the professor could not arbitrate his claims.

On December 14, 2020, the country’s wait for a COVID-19 vaccination came to an end as the first vaccines began to be administered to America’s health care workers. Like many measures taken to combat the virus, the vaccine is not without controversy. According to one recent survey, nearly one quarter of Americans are hesitant about taking the vaccine. With such a prevalence, employers and employees may be wondering about whether employers can require workers be vaccinated and whether workers can refuse a vaccine mandate. Today’s Long Island employment law blog discusses these issues.

On December 15, 2020, the federal Equal Employment Opportunity Commission issued guidance to employers about how the COVID-19 vaccine may implicate employment law concerns. The issues discussed in this blog rely on that guidance.

The first employment law which may relate to vaccinating workers is the Americans with Disabilities Act (ADA). The ADA generally prohibits employers from discriminating against employees based on an employee’s medical condition or disability. More specifically, the ADA regulates medical examinations of employees. For vaccines, the preliminary question is whether a vaccination is a medical exam.

Followers of our civil rights blog will know that since the early days of the pandemic, our interpretation of existing law led us to conclude that most COVID-19 regulations, include lock downs, social distancing, and mask wearing, would be upheld by courts as constitutional. This conclusion was reached in large part by a 1905 Supreme Court decision which suggested that the Supreme Court believes the Constitution gives extreme deference to states’ policy decisions to fight disease.

Indeed, in the ensuing months of the pandemic, court after court, including the Supreme Court, continued to extend deference to the states’, when challengers sought a determination that regulation was unconstitutional. On November 25, 2020, however, SCOTUS, reconstituted as a strong conservative court, pushed back on New York’s regulations effecting houses of worship. Today’s Long Island civil rights blog discusses the case.

In Roman Catholic Diocese of Brooklyn v. Cuomo, several religious groups sued New York’s governor Cuomo, alleging recent regulations creating color coded zones based on a region’s COVID-19 outbreak, were unconstitutional. We blogged about the case when it was before New York’s federal appellate court. In brief, regions with higher outbreaks were required to comply with different regulations than regions with less significant outbreaks. The harsher regulations included which businesses could open and which must close. Further, under certain outbreak conditions, religious gatherings were limited (but not prohibited altogether). New York’s Second Circuit upheld the restrictions on religious gatherings as constitutional.

UPDATE: SCOTUS HAS REVERSED THIS DECISION. SEE OUR MOST RECENT BLOG ABOUT THIS CASE.

Throughout the COVID-19 pandemic, the civil rights lawyers at Famighetti & Weinick PLLC have been closely following the lawfulness of government restrictions implemented to control the spread of the virus. From the earliest days, our video blog series, “Lockdown Video Series,” predicted that most coronavirus regulations would be declared constitutional by courts.

As the months of the pandemic lumbered along, we continued to follow developments in the law. Our June 2020 blog discussed failing legal challenges to COVID-19 regulations, and partner, Matt Weinick, published a legal article discussing the constitutionality of face mask requirements and temperature checks at work. Again, our analysis concluded that, because of the Supreme Court’s strong deference to a government’s right to control the spread of disease, most constitutional challenges would fail.

The First Amendment protects, among other freedoms, the freedom of speech. The First Amendment applies only to prohibit government conduct, not private conduct. Governments take many forms, including towns, counties, and public school districts. So, the First Amendment applies to public schools and universities.

But, in certain contexts, such as schools, the First Amendment does not apply as broadly as it does to general citizen First Amendment speech. In some areas, such as public workplaces and public schools, the First Amendment recognizes that the government has a strong and important interest in regulating speech. So while students and government workers do not completely shed their First Amendment rights in schools and workplaces, different rules apply to determine whether the First Amendment applies.

Today’s Long Island civil rights blog discusses a First Amendment claim in the context of a public college.

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