Long Island Employment Law Blog — Published by Long Island Employment Law Attorneys

March 14, 2019

More Workers to be Eligible for Overtime

The Fair Labor Standards Act is the federal law which sets minimum wage and requirements for employers to pay overtime to workers. The law also establishes rules under which employees may be exempt from the overtime requirements. On March 7, 2019, the United States Department of Labor proposed a rule which would alter the current rules for exempt employees. Today’s Long Island employment law blog discusses the proposal.

Under the FLSA, employers must pay overtime to employees who work more than 40 hours in a workweek. Overtime must be 1.5 times the employee’s regular rate of pay.

But, some employees are exempt from this requirement. To be exempt, the employee must receive a minimum weekly salary and the employee’s job responsibilities must meet the definition of one of the law’s exemptions. In 2004, the Department of Labor set the salary requirement to $455 per week, and that amount has remained unchanged since then.

March 7, 2019

Hostile Work Environments: Severe or Pervasive Standard Reviewed by Court

by Famighetti & Weinick

Are you facing a hostile work environment? You may think so, but courts may not agree. Employment law requires employees to show that they faced severe or pervasive abusive conduct in the workplace, to prove a hostile work environment claim. What is severe or pervasive conduct? Today’s Long Island employment law blog explains.

Courts have long stated that their role is not to keep workplaces civil. So, many employees may believe their bosses and/or coworkers are mistreating them, but the law would not regard the conduct as unlawful. Employment laws only prohibit abusive conduct which is directed at employees based on the employee’s protected characteristics, such as sex, gender, race, or national origin. Moreover, the conduct must be severe or pervasive. The legal definition of severe of pervasive has been settled for a while, but because it’s a somewhat of a nebulous definition, courts and lawyers sometimes have trouble discerning when conduct meets that standard.

In Fox v. Costco, decided on March 6, 2019, the Second Circuit provided insight into questions. First, can an employee claim he subjected to a hostile work environment based on a disability? Second, what kind of conduct can be severe or pervasive. Let’s take the questions in turn.

March 4, 2019

Congress Seeks to Amend Age Discrimination Statute

by Famighetti & Weinick

On February 14, 2019, Congressman Robert C. “Bobby” Scott sponsored a bill in the United States House of Representatives which would amend the Age Discrimination in Employment (ADEA) laws. Entitled the Protecting Older Workers Against Discrimination Act, the act is a reaction to a Supreme Court ruling issued nearly 10 years ago which was seen as limiting employees ability to prove age discrimination claims. Today’s Long Island Employment Law blog discusses the proposed amendment.

In Gross v. FBL Financial Services, the United Supreme Court considered the standard of proof an employee must show to prove an age discrimination case. The dispute centered on whether employees can show mixed motives or whether an employee must show that discrimination was the but-for reason for an adverse employment action.

In mixed motive cases, an employee can prevail by showing that an employer was motivated, at least in part, by a discriminatory purpose. In other words, the employer may have had many reason to fire or demote an employee, but if discrimination was one of the reasons that motivated the employer to act, and if the employee could prove that, then the employee could win. In but for cases, employees must prove that the employee would not have been fired or demoted in the absence of discriminatory intent.

February 23, 2019

New York City Hair Discrimination

by Famighetti & Weinick

In February 2019, the New York City Commission of Human Rights issued enforcement guidance concerning race discrimination based on hair. Today’s Long Island employment law blog discusses this new guidance.

Federal law, New York State law, and New York City law have all made race discrimination unlawful and have done so for many years. But, New York City has tried to set itself apart from other laws and other jurisdictions by ensuring its laws are liberally construed and that they provide the most protection possible to employees and the public. Indeed, the New York City Human Rights Law directs courts and administrative agencies to interpret the law separately and distinctly from any other similar laws.

In its latest attempt to distinguish itself as leading the way in anti-discrimination laws, the Commission issued guidance about hair discrimination. To begin with, the guidance makes clear that discrimination based on racial stereotypes is illegal. Moreover, the guidance makes clear that hair discrimination can relate to other types of discrimination such as sex, gender, religion, disability, or national origin. But, the Commission sought to “affirm” that acts which would tend to ban or otherwise inhibit hairstyles associated with Black people is illegal.

February 21, 2019

Are Rumors About Sex in the Workplace a Hostile Work Environment

by Famighetti & Weinick

If employees gossip or spread rumors about a co-worker falsely having sex with a supervisor, does that constitute a hostile work environment? At least one federal appellate court says yes, at least if the employer knew about the rumors, participated in spreading the rumors, and disciplined the worker based on the rumor. Today’s Long Island employment law blog discusses this workplace issue.

In Parker v. Reema Consulting Services, the plaintiff was initially hired to a low level warehouse position with the company. But, in the course of two years, the plaintiff, a female, was promoted several times, eventually to an assistant manager position. Within weeks of this promotion, male employees began circulating rumors that the plaintiff had a sexual relationship with a high ranking manager, and that she entered into the relationship for the purpose of obtaining the promotions. The rumors started from a male employee who was jealous about the plaintiff’s quick rise to her position.

The plaintiff met with the highest ranking manager at her location to discuss the matter. At the meeting, the manager blamed the plaintiff for “bringing the situation into the workplace,” and warned her that he could not recommend her for any further promotions because of the rumor. He specifically stated she would not progress any higher in the company because of the rumor.

February 6, 2019

Unpaid Interns? The Saga Continues

by Famighetti & Weinick

Internships offer students the opportunity for hands on supervised learning experiences in their particular field of study. But, must companies pay their interns? This question has been the subject of fierce litigation for several years and a matter considered by New York’s federal appellate court. On February 5, 2019, the Second Circuit Court of Appeals considered yet another case concerning unpaid interns. Today’s Long Island employment law blog discusses the case, Velarde v. GW GJ, Inc.

Generally, federal and state labor laws, such as the Fair Labor Standards Act or FLSA, and the New York State Labor Law or NYLL, require that all employees receive, at least, the minimum wage for the hours they perform work for their employer. So, if interns are considered employees, then companies must pay their interns. But, are interns employees entitled to minimum wage or other pay?

In 2015, the Second Circuit faced, for the first time, the question of whether a company must pay temporary interns. The case, known as Glatt v. Fox Searchlight Pictures, set forth a primary beneficiary test. In its simplest form, the test seeks to determine who is the primary beneficiary of the internship. For instance, if the internship genuinely provides the intern with a learning experience or other opportunity which benefits the intern more than the company, then the intern is not owed wages. If, on the other hand, the company receives the primary benefit, then the intern is considered an employee and must receive wages.

December 10, 2018

Intimate Association: The Right to be Free From Government Intrusion Into Family

by Famighetti & Weinick

Courts have long recognized a constitutional right to intimate association. Intimate association protects close family relationships from undue interference from the government. Today’s Long Island civil rights blog discusses some of the contours of these claims and a recent appellate court decision concerning intimate association under the Fourteenth Amendment.

Close family relationships enjoy constitutional protections. In fact, courts have determined that two amendments protect individuals’ rights to enter into and enjoy close personal relationships. The First Amendment was determined to protect close family relationships in 1999 by the Second Circuit Court of Appeals in New York. The First Amendment prohibits the government from intruding into a familial relationship as retaliation for one family member’s exercise of free speech rights.

The relationship at issue must be very close. For instance, a husband and wife, parent and child, and brother and sister (or other siblings), have all been determined to be close enough so as to constitute a constitutionally protected familial relationship. Two longtime childhood friends, however, are not constitutionally protected as an intimate association, even if those friends consider themselves so close as to constitute a de facto family.

December 7, 2018

I thought I can’t sue my employer?

by Famighetti & Weinick

Famighetti & Weinick PLLC are Long Island employment lawyers. We receive many calls each week from potential clients and we hear a wide variety of questions from them. One question we hear a lot is “I thought I can’t sue my employer?” Why do employees ask this question and what’s the answer? Today’s Long Island employment law blog explores this issue.

Personal injury law applies when employees are hurt or injured in the workplace. In New York and on Long Island, workers compensation law covers situations where employees are hurt at work. Under workers compensation, employees generally cannot sue their employers for workplace injuries. Because many people are familiar with the concept of workers compensation, they believe that the rule prohibiting lawsuits based on workplace injuries applies to all workplace matters.

But, workers compensation does not act as a prohibition against all lawsuits relating to the workplace. Even in the world of personal injury, sometimes employees can still pursue lawsuits based on injuries incurred in the workplace. For example, employees injured from construction site accidents may be able to sue the property owner or a general contractor. Further, employees injured in a car accident may be able to sue the other driver. Similarly, if a worker is injured on property which does not belong to the employer, the worker may be able to sue the property owner. Also, New York’s scaffolding law protects employees working with ladders, or otherwise working at heights. Before concluding that you cannot recover for your workplace injuries in court, it’s best to consult with an experience employment lawyer or a personal injury lawyer.

December 4, 2018

Firm’s Age Discrimination Case Against Investment Bank to Proceed to Hearing

by Famighetti & Weinick

The Long Island employment lawyers at Famighetti & Weinick PLLC obtained a decision that probable cause exists to believe that a national investment bank discriminated and retaliated against their client. The case will be scheduled for a public hearing at the New York State Division of Human Rights.

The age discrimination and retaliation case was brought on behalf of one of the bank’s traders. According to the allegations in the case, the trader had been successfully working on Wall Street for decades. Then, co-workers and supervisors began subjecting the trader to a hostile work environment based on his age. The abusive conduct consisted of age based jokes and comments, some of which were documented in e-mails. The complaint filed with the New York State Division of Human Rights detailed other improper hostile workplace conduct directed at the trader based on his age.

Further, the trader complained about the age discrimination on multiple occasions, also at times in writing. Despite these complaints, the hostile work environment continued. The trader opposed other unlawful discriminatory conduct in the workplace and after one such time, a supervisor threatened to run the trader out of the company. Indeed, soon after these complaints, the bank issued a poor performance evaluation to the trader and removed from him many of his top accounts. The complaint alleged that the reasons the bank gave the trader for removing the accounts were demonstrably untrue. Ultimately, the bank terminated the trader’s employment.

November 7, 2018

SCOTUS Sides with Employee in Firefighter Age Discrimination Case

by Famighetti & Weinick

Are firefighters of small municipal fire departments covered by the Age Discrimination in Employment Act (ADEA)? On November 6, 2018, the United States Supreme Court answered that question the case Mount Lemmon Fire District v. John Guido. Today’s Long Island employment law blog takes a closer look at the decision and also discusses whether the decision offers a glimpse into how the new makeup of the court may affect employment cases.

The Mount Lemmon Fire District is a municipal fire department in Arizona. Purportedly because of a budget shortfall, the District laid off two employees, John Guido and Dennis Ranking, ages 46 and 54, respectively. The firefighters sued alleging their terminations violated the ADEA because the decisions were based on their age. The District moved to dismiss arguing that the ADEA only covers employers who have more than 20 employees, which the District did not. Ultimately, SCOTUS was asked to decide the issue.

Writing for the court, Justice Ginsburg noted that the ADEA was enacted to prevent “arbitrary age discrimination” in employment. She noted further that Congress initially excluded governmental agencies and required that employers employ a threshold number of employees for the law to apply to them. But, in 1974, Congress amended the ADEA to specifically define employer as including “a State or political subdivision of a State.”