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In April 2022, the civil rights law firm Famighetti & Weinick PLLC filed a First Amendment retaliation case on behalf of its client, Devanand Persaud, against the City of New York and individuals employed by the City. The firm regularly handles free speech cases, but this case was unusual. In this case, Persaud alleged that he did not engage in any free speech. Yet, on two occasions with two different judges, the court refused to grant the City’s request to dismiss this case alleging violations of free speech. How could that be? Today’s Long Island employment law blog explains.

The following information is taken from the publicly available court orders issued in the case.

Persaud worked for the New York City Department of Finance (the DOF). He is of Guayanese national origin. In October 2020, a Guyanese newspaper published an article entitled “Gutter Work.” Boiled down to its essence, the article discussed the rise of oil jobs in Guyana and public debate about which workers in Guyana should have those jobs.

On April 23, 2024, the United States Federal Trade Commission voted to ban non-compete agreements. What is a non-compete agreement and what does the ban mean? Today’s Long Island employment law blog explores these issues and the FTC’s new rule.

Non-compete agreements are contracts (or provisions in contracts) which limit or bar an employee or worker from working in a similar industry or from opening a business in the same or similar industry as their current employer. For example, non-competes are widely used in the sales and could limit a pharmaceutical salesperson from leaving Drug Company A to sell for a Drug Company B. Since non-competes will generally be imposed by a prospective employer as a condition of employment, employees and workers typically have no ability to negotiate the terms and must accept the conditions imposed, if they want the job.

New York disfavors non-competes, but nonetheless, courts will enforce non-competes if the terms are reasonable, including in time, scope, and geography. In other words, courts are more inclined to enforce non-competes if its terms last for just a year, if it is limited to a narrow industry, and if it’s limited to, for instance, a 25 mile radius around the employer’s main headquarters.

On April 17, 2024, the Supreme Court of the United States issued a decision in the case Muldrow v. City of St. Louis. The decision is monumental in that it materially alters the requirements that employees must satisfy to prove unlawful workplace discrimination. If you’re thinking that the current conservative leaning SCOTUS ruled in favor of employers, you would be wrong. Read today’s Long Island employment law blog to learn about the Muldrow decision and its impact on employment discrimination cases across the nation.

In Muldrow, the female plaintiff was a plain clothes police officer assigned to a special Intelligence Division. By virtue of this assignment, Muldrow received what could only be reasonably viewed as employment benefits, though not in the traditional sense. Muldrow did not receive extra pay or better health care benefits. Rather, Muldrow received other perks such as FBI credentials and use of an unmarked police car which she could take home.

Eventually a new commander of Muldrow’s unit took over. According to Muldrow’s lawsuit, the new commander made comments suggestive of a sex based animus. For instance, he referred to Muldrow as “Mrs.”, rather than Sergeant, as was customary. Further, according to Muldrow, the commander transferred her out of the unit, in order to replace her with a male officer.

2024 has seen New York’s federal appellate court, the Second Circuit Court of Appeals, issue a string of employee friendly decisions. We have blogged about some of these decisions previously. On March 26, 2024, the Second Circuit decided an employment discrimination case which clarifies how trial courts should analyze discrimination cases. As we discuss in today’s Long Island employment law blog, the decision should result in more discrimination cases getting to trial.

In Bart v. Globus Corporation, the employer, Globus Corp., accused an employee, Elaine Bart, of falsifying food logs, maintained by the company to ensure health and safety. Globus fired Bart. Bart admitted that she violated the food log policy, but nonetheless, she alleged that the termination decision was made based on her gender. Accordingly, Bart sued Globus pursuant to, among other statutes, Title VII, the federal workplace anti-discrimination law.

To a layperson, this may seem like an open and shut case. The employer accused the employee of violating policy, the employee admitted to violating policy, and the employer fired the employee for violating the policy. How could this be unlawful discrimination then?

An often misunderstood part of America’s guarantee of “free speech” is that the Constitution (the source of free speech rights), restricts only the government’s ability to regulate speech. Private citizens are not prohibited from restricting speech. For example, a restaurant owner may deny service to a customer who is wearing a political shirt which the owner finds offensive. But, the city in which the restaurant is located cannot pass an ordinance which requires restaurants to deny service to customers who wear a shirt which supports a specific political party.

Thus, for an individual to have a lawsuit under the First Amendment for a violation of free speech, the individual must first be able to prove “state action,” i.e. that the government, and not a private individual, caused the deprivation of rights.

Usually, this distinction is not difficult. Typically, its apparent whether the government is restricting speech or whether a private individual is restricting speech. On March 18, 2024, however, the Supreme Court issued a decision in a case where the distinction was not easy to determine. Today’s Long Island employment law blog discusses the decision issued in Lindke v. Freed.

One of the difficulties in employment retaliation cases is determining whether an action an employer has taken can be deemed retaliation under the law. This is because not every action which an employer takes against an employee can constitute a retaliatory act, even if the employer acted with a retaliatory motivation. For instance, a verbal reprimand which does not constitute discipline is typically not considered adverse enough to constitute unlawful retaliation.

On February 15, 2024, New York’s highest court, the Court of Appeals, issued a decision which discusses how courts should evaluate employment retaliation cases. Today’s Long Island employment law blog discusses the decision in Clifton Park Apartments, LLC v. New York State Division of Human Rights. Spoiler alert: The decision is mostly favorable for employees.

The facts of the Clifton Park case are as follows. Leigh Renner worked for a company called CityVision. CityVision is a not-for-profit corporation which tests housing facilities for discriminatory practices. CityVision’s employees pose as prospective tenants and call housing facilities to seek to rent an apartment. One housing facility which Renner called, Pine Ridge, was owned by Clifton Park Apartments, LLC.

Employment laws in New York are complex and always evolving. In 2024, various existing employment laws will see changes take effect. In addition, some entirely new laws will take effect. Today’s Long Island employment law blog will take a look at some of the changes so that employers can consider compliance options and so that employees understand their rights.

The Freelance Isn’t Free Act

A hotly contested issue in employment law is whether workers are independent contractors or employees. Many employers try to categorize workers as independent contractors to avoid many of the legal obligations that come along with adding an employee to payroll. The Freelance Isn’t Free Act is an attempt to add some protections for independent contractors.

On November 1, 2023, the employment law firm Famighetti & Weinick PLLC, launched a revamped website in preparation for its 10th anniversary year. F&W anticipates that the brighter, fresher look to the website will enhance users’ experiences, while continuing to provide quality content about both the firm’s services, and employment law topics.

In 2014, F&W opened its doors. As part of its branding, F&W embraced brown colors to invoke a sense of traditional law firms’ offices which typically use woods to adorn entrances, hallways, and conference rooms. From the earliest iterations of the firm’s website to the most recent, brown played a prominent role in the firm’s web designs.

As the firm approaches its 10th anniversary year, the time has come to move away from tradition and towards embracing F&W’s own unique identity. The website’s new appearance embraces important elements from past web designs, but also introduces new colors and symbols to define the firm’s identity.

Title VII of the Civil Rights Act of 1964 prohibits various forms of workplace discrimination, including discrimination based on sex, race, religion, and national origin. Title VII also includes an anti-retaliation provision which protects employees who complain about or oppose conduct which is unlawful under Title VII. This is referred to as engaging in protected activity.

To prove a discrimination or retaliation claim in court, an employee must prove, among other things, that he or she suffered an adverse action. At Famighetti & Weinick PLLC, we typically describe this requirement as having to show that the employer did something bad enough in the eyes of the law. One thing an employer may do to an employee in retaliation for an employee engaging in protected activity is to subject to the employee to a retaliatory hostile work environment.

In August 2023, the United States Court of Appeals for the Second Circuit issued an opinion clarifying the legal standard used to analyze retaliatory hostile work environment claims. Today’s Long Island employment law blog takes a look at the case Carr v. New York City Transit Authority.

On August 25, 2023, the United States Court of Appeals for the Second Circuit upheld a judgment of $17.78 million which was rendered in favor of EMTs and Paramedics who worked for the City of New York. The case arose based on the EMTs’ and Paramedics’ allegations that they worked overtime hours, but were not compensated for that work. Today’s Long Island employment law blog takes a closer look at the facts of the case – Perry v. City of New York, the reasons the City appealed the jury’s verdict, and the reasons the Court upheld the judgment.

2,519 EMTs and Paramedics who worked for the City of New York joined a collective action alleging that the City failed to pay them overtime. In brief, the emergency workers alleged that they were required to perform work for the City for which they were not paid. The City required that the EMTs and Paramedics be ready to start work “ready for duty.” To be ready for duty, the workers must have already checked personal protective equipment such as their helmet, gloves, pants, coat, and respirator. Thus, they alleged they were not paid for the work done to check their personal protective equipment.

The jury determined that the City was liable for overtime pay, and that the City willfully violated the Fair Labor Standards Act, the federal law which requires certain workers to receive overtime pay. The jury awarded total damages of $17.78 million, comprised of actual damages, liquidated damages, and attorneys’ fees.

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