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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.

In yet another decision, New York’s federal Court of Appeals, the Second Circuit, issued a decision on November 9, 2020 holding that New York’s color coded covid zones which vary the degree to which restrictions exist in each zone, are constitutional with respect to restrictions imposed on houses of worship. Today’s Long Island civil rights blog discusses the Agudath Israel of America v. Cuomo decision.

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.

What conduct constitutes a hostile work environment? How can a municipality be held responsible for a hostile work environment created by its employees? New York’s federal appellate court recently addressed these questions in the case Legg v. Ulster County. Today’s Long Island employment law blog discusses these issues, and how the Court of Appeals decided the case.

At Famighetti & Weinick PLLC, one of the leading inquiries we see as Long Island employment lawyers is “I’m working in a hostile work environment.” A hostile work environment is a legal term of art. While many employees subjectively consider themselves as facing a hostile work environment, the law does not recognize all hostile environments as being actionable in court. In other words, the law does not allow all employees to sue their employers for a hostile work environment.

Among other things, to sue an employer for a hostile work environment, the hostility must be based on a protected characteristic of the employee (such as sex, gender, age), the conduct must be sufficiently “severe or pervasive,” and, at least under federal law, there must be a basis for holding the employer responsible for the actions of its employees. These “elements” of a hostile work environment claim are not black and white issues, so employers and employees often hotly dispute these points in court.

Long Island employment lawyers, Peter Famighetti and Matthew Weinick, partners of the employment law firm Famighetti & Weinick PLLC, have been selected to the 2020 New York Metro Super Lawyers list. No more than 5% of the lawyers in New York State are selected by the Super Lawyer’s research team to receive this honor.

Super Lawyers evaluates lawyers in the state who they find have reached a “high degree of peer recognition and professional achievement.” The rating service then selects lawyers using a patented process, including surveying lawyers within the state, and independently researching evaluation of candidates and peer reviews.

2020 marks the fifth consecutive year that Famighetti has been selected for the Super Lawyers list. On his selection, Famighetti commented that, “I am so appreciative to be included on the Super Lawyers list, alongside some of the most respected lawyers in the state.” Famighetti further noted that, “I believe that both partners’ selection shows the Firm’s commitment to excellence in the practice of law.”

On April 10, 2019, the South Huntington Water District sent a letter to Juliet Irving. The Water District had been providing health insurance benefits to Irving as the surviving enrollee on a deceased employee’s insurance policy. The letter indicated the District would be revoking Irving’s health insurance coverage. Then, Irving hired Long Island employment lawyers Famighetti & Weinick PLLC who took the District to court and won a decision prohibiting the District from revoking the insurance. Today’s Long Island employment law blog discusses the case.

The foregoing is taken from the Court’s decision.

Irving had been a domestic partner of a District employee. Though they were not married, they considered themselves life partners. The employee received health insurance benefits from the District. The employee added Irving to his plan based on his understanding that the District participated in the New York State Health Insurance Program’s domestic partner coverage.

On April 3, 2020, Governor Cuomo signed into law New York’s Paid Sick Leave law. The law provides guaranteed paid sick leave to many of New York’s workers. Today’s Long Island employment law blog discusses the provisions of this new law.

The law provides that employees can accrue sick leave time based on hours worked. How many hours employees can accrue and whether the time is paid or unpaid varies on several factors, but regardless of these factors, employees earn one hour of sick leave for every 30 hours worked. Accrual begins on the effective date of the law (10/1/20), or upon employment, whichever is later. Accruals and requirements to pay for the sick time are broken down as follows:

  • Employers with 4 or less employees (in a calendar year) with net income of one million dollars or less, must provide up to 40 hours of unpaid sick leave each calendar year;

Federal and New York State laws require that employees be paid minimum wage and overtime. During “normal” times, employers far too frequently violate these laws. Sometimes, employers intentionally skirt wage laws to avoid paying the high costs associated with employee wages. Other times, however, employers try to comply with the law, but they fall into legal pitfalls by misclassifying employees or making other mistakes.

With Covid-19, employees are working from home or being subject to new workplace requirements, such as health screenings, before starting work. These new workplace realities, employers may stumble into new pitfalls concerning properly paying employees. Today’s Long Island employment law blog discusses situations where employers may be improperly paying employees and what employees should do if are they are not being paid correctly.

Non-exempt hourly employees must be paid for all time spent working. Generally, this is not a complicated issue. Most employees come into work and clock in or “punch in.” This records the time the employee reported in for work. After clocking in, the employee starts work.

As states across the country, including New York, make the medical use of marijuana legal, new issues are arising in the context of employment. For example, how will employers which require drug testing, respond to the changes in the law and how they will handle employees who are lawfully taking medical marijuana? Few courts have addressed these issues.

Recently, Long Island employment lawyers Famighetti & Weinick PLLC were able to “test the waters” to challenge the interplay of employment discrimination laws and medical marijuana laws. Today’s Long Island employment law blog discusses a decision from the New York State Division of Human Rights concerning employment drug testing and medical marijuana laws.

The following facts were taken from the Division’s decision. F&W’s client applied for a job with a national consumer electronics retail company. The applicant interviewed for the position at his local Long Island retail location. Soon after, the store issued the client a conditional offer of employment, subject to a background test and drug test.

A jury verdict is often the goal of parties involved in an employment discrimination court case. But, many times, a jury verdict is not the end of the litigation. Indeed, a party unhappy with the outcome may appeal to an appellate court. This is what happened after Effat Emamian won a jury award of $250,000 for back pay and $2,000,000 for emotional damages. Today’s Long Island employment law blog discusses what happened next at the Court of Appeals.

Emamian worked for Rockefeller University. She alleged that she was subjected to inferior treatment by coworkers during the course of her employment. Comments made by coworkers suggested that the poor treatment was based on Emamian’s race, national origin, religion, and sex. Emamian alleged that hostile treatment directed at her caused her extreme emotional distress, to the extent that she could not leave the house, and she developed emotional disorders. Ultimately, the University denied her a reappointment to her position, thus her employment was ended.

Emamian sued Rockefeller arguing she faced discrimination and retaliation. As relevant here, her case proceeded to a jury trial in federal court to determine a claim of discrimination under the New York City Human Rights Law. The jury mistakenly filled out the jury verdict form, leading to some confusion and a grounds for appeal for the University, but after the judge sorted out the mistake, the jury’s verdict was accepted: (1) plaintiff proved discrimination; (2) plaintiff proved $250,000 in economic damages; and (3) plaintiff proved $2,000,000 in emotional distress damages.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of religion. On the other hand, the First Amendment prohibits Congress from enacting laws which interfere with how churches govern themselves. When a church makes an employment decision based on religion which negatively impacts one of its employees, does that church then violate the anti-discrimination provisions of Title VII? Today’s Long Island employment law blog explores the ministerial exception as elaborated on by the Supreme Court of the United States in the Our Lady of Guadalupe decision.

In 2012, the Supreme Court decided a case, Hosanna-Tabor. In that case, the country’s highest court applied a legal doctrine called the ministerial exception. The ministerial exception generally says that church employees who perform jobs which relate to religious responsibilities are exempt from coverage under anti-discrimination laws. For example, if a Catholic school teacher was responsible for teaching students math, but was also responsible for teaching bible studies, the teacher would likely not be protected by anti-discrimination laws because of the ministerial exemption. So, if the teacher was not married, but became pregnant, the church could lawfully terminate the teacher if it believes the teacher violated religious tenets.

Turning to the Our Lady of Guadalupe case, the decision concerns two cases which were heard and decided at the same time. In both cases, the plaintiffs were teachers at religious schools who had employment contracts with the school. Each teacher taught general elementary education classes, but both plaintiffs were charged with providing some religious instruction and leading prayer. Ultimately, each school terminated the respective teacher. One teacher alleged age discrimination, the other alleged disability discrimination. After the parties litigated whether the ministerial exception barred the claims, the cases reached the Supreme Court.

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