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

May 1, 2019

$193,536 Ordered Paid By Employer in Wage Theft Case

On May 1, 2019, United States District Court Judge Joan M. Azrack issued an ordered in a wage theft case filed by Long Island employment lawyers Famighetti & Weinick, PLLC in the Eastern District of New York. The case alleged that a Long Island food delivery service failed to pay overtime wages to two employees and failed to provide proper and legal wage statements under New York Law.

The lawsuit was served on the defendant corporation and an owner, but the defendants refused to defend themselves. Accordingly, the firm asked the court to enter a default judgment against them. As part of the motion, partner Matt Weinick set forth the applicable laws under the Fair Labor Standards Act and New York Labor Law concerning overtime pay. Weinick discussed how the affidavits submitted by the two employees established that the employer violated the wage and hour laws.

Next, the firm calculated the damages owed to each employee. Weinick set forth the hours each employee worked and how much each was owed for the overtime worked. Weinick also set forth the statutory damages the employer owed for not providing proper wage statements and the amount of liquidated damages allowed for under the FLSA and NYLL.

April 25, 2019

New York City Limits Employment Related Marijuana Testing

by Famighetti & Weinick

Earlier this month, we wrote about the intersection of medical marijuana use and employment discrimination laws. Based, in part, on this conflict, the New York City Council passed a law which would prohibit New York City employers from testing prospective employees for marijuana as part of the employer’s pre-hiring procedures. Today’s Long Island employment law blog discusses this new law.

In 2014, New York State passed the Compassionate Care Act which legalized marijuana for medical use. In early April 2014, we blogged about the complications which can arise when an employee lawfully uses medical marijuana, but the employer tests employees for marijuana use. A New Jersey court ruled that an employer may have engaged in disability discrimination when the employer terminated the employee after he tested positive for marijuana, which he used to treat a medical condition.

The New York City Council acknowledged that New York City residents may lawfully use marijuana to treat medical conditions. It further concluded that at least 34 states across the country allow citizens to use marijuana either for recreational and/or medical purposes. The Council determined that it would be unjust to allow New York City employers to test employees for the presence of marijuana, when the employee may have used it legally.

April 19, 2019

Appeals Court Applies Stricter Test to Disability Discrimination in New York

by Famighetti & Weinick

In employment discrimination claims, courts generally apply one of two methods of analyzing the claims. In a mixed-motives analysis, plaintiffs must show the employer was motivated, at least in part, by a discriminatory animus. This is considered a more lenient standard. In but-for causation, the plaintiff must show that discrimination was the but-for cause of the employment action taken against the employee. This is considered a stricter standard. On April 18, 2019, the Second Circuit Court of Appeals, New York’s highest federal court, ruled that but-for causation is the appropriate legal standard applicable to disability discrimination claims. Today’s Long Island employment law blog discusses the decision.

In Natofsky v. City of New York, the plaintiff alleged disability discrimination and retaliation against the City of New York. He brought his claims under the Rehabilitation Act. The trial court applied a standard requiring the plaintiff to show that discrimination was the “sole” reason that the employer took a adverse actions against him. Applying this standard, the trial court dismissed the employee’s claims, then the employee appealed.

On appeal, the Second Circuit first looked at whether the employee was required to show that discrimination was the sole reason for the acts taken against him. The court determined that the Rehabilitation Act incorporates the standards from the Americans with Disabilities Act (ADA). So, although the Rehabilitation Act indeed uses language indicating discrimination must be the sole reason, subsequent amendments to the Act made clear that courts were to look to the ADA for the appropriate standard.

April 9, 2019

What Acts Can be Considered For a Hostile Work Environment Claim?

by Famighetti & Weinick

For federal workplace discrimination claims in New York, employees must file a charge of discrimination with the EEOC within 300 days of the discriminatory act in order to preserve their right to sue the employer. But, oftentimes for hostile work environment claims, the employee doesn’t reach a breaking point until after enduring perhaps months or years of abuse. Does the employee lose the right to sue based on acts which occurred before the 300 day filing period? On April 8, 2019, New York’s federal appellate court answered that question, and clarified several other important points of law concerning employment cases. Today’s Long Island employment law blog explains.

For an employee to have a hostile work environment claim against an employer, the employee must be able to show the employer’s abusive conduct was either severe or pervasive. When showing pervasive conduct, the employee must show many hostile and abusive acts took place frequently over a period of time. But, employees must file charges of discrimination within 300 days of the discriminator act.

In Davis-Garett v. Urban Outfitters and Anthropologie, the plaintiff alleged she was subjected to a hostile work environment at three different store locations and over the course of more than a year, ending in September 2013. But, the plaintiff did not file a charge of discrimination with the EEOC until December 2013. The trial court ruled that the everything that happened from before 300 days before the EEOC charge was filed, would not be considered.

April 4, 2019

Medical Marijuana Use and Disability Discrimination

by Famighetti & Weinick

As more states enact legislation legalizing marijuana for medical and/or recreational use, issues concerning employers’ regulation of employees’ marijuana use are on the rise. Can employers regulate an employee’s lawful use of marijuana outside of work? Like most legal questions, the answer is complicated. Today’s Long Island employment law blog discusses a recent New Jersey court’s opinion on the question of medical marijuana use relating to a disability.

New Jersey has enacted the Compassionate Use Act. In brief, the Act is intended to prevent the prosecution of patients and caregivers involved in the use of marijuana to alleviate suffering from medical conditions. The portion of the Act relevant to the New Jersey case also notes that employers are not required to accommodate the medical use of marijuana in the workplace.

In the New Jersey case, Wild v. Carriage Funeral Holdings, Inc., the plaintiff was diagnosed with cancer and was prescribed marijuana as part of his medical treatment. He continued working as a licensed funeral director.

March 14, 2019

More Workers to be Eligible for Overtime

by Famighetti & Weinick

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.