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

September 13, 2018

SuperLawyers Magazine Lists Long Island Employment Lawyers

SuperLawyers Magazine has published its annual New York Metro Lawyers List. The SuperLawyers list includes Long Island employment lawyers Peter J. Famighetti and Matthew Weinick. 2018 marks the seventh year that Weinick has been listed on the Rising Stars list and the fifth year that Famighetti has been included on the SuperLawyers list.

According to SuperLawyers, the selection process uses a “patented” system including an evaluation of 12 indicators. Using this system, less than 5% of the lawyers in New York State are included on the SuperLawyers list.

The Rising Star star list selects lawyers using a similar system, looking at lawyers who are either under the age of 40 or who have been practicing for less than 10 years. Less than 2.5% of New York State lawyers are selected for the Rising Star list.

August 15, 2018

New York City’s Temporary Schedule Change Law

by Famighetti & Weinick

New York City just made it easier for employees to take time off from work. In 2017, the City passed a series of laws known as the Fair Workweek laws which were intended to end abusive scheduling practices that affect workers in New York City, particularly workers in the retail and fast food industry. Just about one year after unveiling its Fair Workweek legislation package, New York City also made some hefty changes to the law to provide eligible employees with more comprehensive protection.

New York City’s Temporary Schedule Change Law became effective on July 18, 2018, and requires most New York City employers to allow eligible employees to make up to two temporary schedule changes (or requests for unpaid time off) per year as long as the change is related to a “personal event.”

In addition to requesting time off, employees covered by the Law may also ask to work remotely, swap shifts, or adjust shifts in other ways that do not necessarily involve taking time off. Generally, “eligible employees” include New York City employees who work over 80 hours per year and who have worked for the employer for 120 days or more.

August 9, 2018

Lack of Jurisdiction?

by Famighetti & Weinick

Courts can only hear cases over which they have jurisdiction. For example, a family court could hear a divorce case, but not a breach of contract case. A surrogate’s court in New York can probate a will, but it cannot award damages in a personal injury case. Today’s Long Island employment law blog discusses the jurisdiction of federal courts and a recent appeal’s court decision relating to jurisdiction.

A court’s jurisdiction is generally considered either general or specific. In New York, the Supreme Court (which is actually the lowest level court) is generally a court of general jurisdiction. This means Supreme Courts can hear nearly any type of case. For purposes of efficiency however, the state created other courts of specific jurisdiction. As noted above, family courts, surrogate’s courts, and small claims courts were created to hear specific types of cases so that the Supreme Court can hear other matters without its docket being clogged.

Federal courts are, by the very nature of the Constitution, courts of limited jurisdiction. Since the federal government only has the power to regulate those areas granted by the Constitution and all other areas of regulation and lawmaking are reserved to the states, federal courts cannot hear all types of cases. Generally, federal courts can hear cases in one of two ways, either by diversity jurisdiction or federal question jurisdiction. Diversity jurisdiction exists when the parties live in different states. For example, if Jim lives in New York and Joe lives in New Jersey and Jim was injured in a car accident with Joe, Jim could sue Joe in a federal court. But, if Jim and Joe both live in New York, Jim would have to sue Joe in a New York State Supreme Court.

August 8, 2018

Retaliatory Arrest Violates First Amendment

by Famighetti & Weinick

The First Amendment’s freedom of speech guarantee remains a hot topic in the courts. The First Amendment lawyers at Famighetti & Weinick PLLC handle First Amendment cases ranging from employment retaliation to retaliation against private citizens. Today’s Long Island civil rights blog discusses retaliatory arrests and the effects of government officials censoring speech.

The Constitution has limits. The First Amendment is not unlimited and neither is the Fourth Amendment. For instance, the Fourth Amendment places limits on a police officer’s arrest power. Specifically, the Fourth Amendment requires police officers to have probable cause before making an arrest, meaning a reasonable belief that a crime has been committed. Otherwise, the arrest is unlawful. Establishing probable cause, however, is easy and police officers are given a significant amount of discretion and deference when it comes to arrests.

On June 18, 2018 in Lozman v. Riviera Beach, the question before the U.S. Supreme Court was whether the existence of probable cause prevented an individual from suing for retaliatory arrest.

August 6, 2018

Damages in an Employment Discrimination Lawsuit

by Famighetti & Weinick

How much is an employment discrimination lawsuit worth? As Long Island employment lawyers, this is a frequent question we hear from victims of unlawful workplace discrimination in New York. Victims of discrimination may be able to recover several categories of damages which comprise the total amount that an employment discrimination lawsuit may be worth. Today’s Long Island employment law blog discusses the damages available to discrimination victims.

Before even getting to the question of damages, plaintiffs must always first prove liability. This means that an employment discrimination plaintiff must first prove that the employer in fact engaged in unlawful discrimination or retaliation. We often describe this step by analogizing it to baking. In a lawsuit, a plaintiff must prove certain elements. Elements are like ingredients. If, for example, we were baking a cake, we need, for simplicity purposes, four ingredients: (1) flour, (2) sugar, (3) butter, and (4) eggs. If we did not have one of these ingredients, we may make something resembling a cake, but it would not be a cake.

Similarly, in the world of employment discrimination, a plaintiff must prove four “elements” or “ingredients” to win the liability part of his or her lawsuit. In short, those elements are: (1) membership in a protected class (such as race, religion, disability, etc.), (2) being qualified for the job; (3) an adverse action (meaning something legally “bad” happened such as being fired); and (4) causation – a showing that the bad thing happened because the employee belongs to a protected class. If the plaintiff does not prove one of these elements, then the “cake” won’t reason, i.e. the plaintiff cannot prove the case and will not be entitled to any damages whatsoever.

July 27, 2018

Can I be fired for what I do outside of work?

by Famighetti & Weinick

Can an employer fire an employee for activities in which the employee engages outside of work? Like most legal questions, the answer is that it depends. Today’s Long Island employment law blog discusses whether New York employees are protected for engaging in activities outside of work.

Generally speaking, New York employees are considered at-will, meaning employers can fire employees for any reason or no reason, as long as the reason is not otherwise illegal. This rule gives employers broad discretion in deciding whether to terminate an employee.

New York Labor 201-d, however, identifies several reasons for which an employer may not terminate an employee. 201-d prohibits employers from terminating an employee, refusing to hire or promote an employee, or otherwise discriminate against an employee for an employee engaging certain activities outside the workplace. Those activities include participating in political activities, an employee’s “legal use” of consumable products, an employee’s “legal” recreational activities, or participating in union activities.

July 20, 2018

Weinick named Vice-Chair of Employment Law Committee

by Famighetti & Weinick

Long Island employment lawyer Matthew Weinick has been named Vice-Chairperson of the Nassau County Bar Association’s (NCBA) Labor and Employment Law committee. Weinick was appointed in July 2018 and he will serve during the association’s 2018/19 calendar year.

The NCBA is an active bar association with more than 40 committees covering a wide array of practice areas and other services for both the public and membership. According to the association, it was founded in 1899 and has nearly 6,000 members. It’s building in Mineola, New York, known as “Domus,” provides a central point for attorneys in Nassau County to gather for networking opportunities, to learn from one another, and to provide services to Nassau County residents through programs such as the lawyer referral service and access to justice.

Of the many committees, the Labor and Employment Law committee considers itself one of the most active committees. The committee’s stated purpose is to review proposed employment law legislation and to analyze recent court decisions concerning employment law.

July 5, 2018

Looking at the Janus Decision’s Dissent

by Famighetti & Weinick

Last week, Famighetti & Weinick PLLC posted a blog summarizing the Janus v. AFSCME union case which overturned the 1977 decision, Abood v. Detroit Board of Education. The majority decision held that employees who choose not to be part of a union but who nonetheless benefit from collective bargaining results are no longer required to pay union agency fees. Today’s Long Island employment law blog discusses the dissenting opinion in Janus.

As we discussed in our original Janus case blog, from a strictly legal perspective, the Janus majority opinion is a First Amendment free speech case. From the point of view of the four dissenting Justices in Janus, however, the nation’s First Amendment jurisprudence makes clear that agency fees do not implicate any First Amendment concerns.

To recap the essential facts of Janus, the case looked at the constitutionality of agency fees charged by public-sector unions. Agency fees are collected by unions from employees who choose not to join a public-sector union. The fees are supposed to support administrative functions of the union. The Supreme Court first looked at these arrangements in the Abood case and set forth the rules under which states could constitutionally apply these fees. Since Abood, 22 states have relied on those rules to implement laws concerning public-sector unions.

July 3, 2018

New York Court Rules Delivery Drivers Not Employees

by Famighetti & Weinick

A New York company operates a website whereby users can place delivery orders from local stores and restaurants. The company uses couriers to pick up the orders and deliver them to the customers. Are these couriers employees under New York law? Today’s Long Island employment law blog discusses how a New York appellate court came decided the issue of whether these couriers are employees of the company?

In the case of Matter of Vega, heard and decided by New York’s Third Department, the company, Postmates, Inc. “engaged” individuals to perform work for the company. As noted, Postmates operated a website whereby customers can place orders at local restaurants and stores. The orders are picked up by couriers, such as Vega, and delivered to the customers.

Postmates, however, terminated Vega alleging, among other things, that it had received negative customer feedback about him. So, Vega filed for unemployment insurance benefits, but Postmates challenged the claim. Initially, a worker’s compensation Administrative Law Judge decided that Vega was not eligible for unemployment benefits because he was not an employee. On appeal to the Unemployment Insurance Appeal Board, however, the Board reversed that determination and decided that Vega was indeed an employee, making him eligible for benefits.

June 28, 2018

Discussion of the SCOTUS Union Dues Case: Janus

by Famighetti & Weinick

On June 27, 2018, social media and news outlets went crazy when the Supreme Court decided Janus v. State, County, and Municipal Employees. Many posters and commentators argued that the decision constituted an assault by SCOTUS on unions. From a strictly legal perspective, however, Janus decided a question related to the First Amendment’s free speech guarantees. Today’s Long Island employment law blog discusses the legal issues concerning the Janus union decision.

Janus concerned the Illinois Public Relations Act. The Act allows public service employees in the state to unionize. Although the Act did not require all employees to join the union, the law nonetheless required that the union be the sole representative for all employees. The law grants unions broad authority to negotiate employment terms including pay, wages, and hours. On the other hand, employees cannot use any other agent to negotiate employment terms nor can they negotiate directly with the employer.

Under the Act, employees may refuse to join the union, but are still required to pay dues, albeit at a reduced amount and in accordance with previous Supreme Court directives. Non-members were required to pay to for union activities including advertising, membership meetings, and litigation.