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

June 14, 2021

Court Rules on First Apparent Challenge to Workplace Vaccination Requirement

Long Island employment lawyers Famighetti & Weinick PLLC have been blogging about whether employers can lawfully require employees to be vaccinated against COVID-19. Our blogs have concentrated on guidance issued by the federal Equal Employment Opportunity Commission and have opined that workplace vaccination requirements are likely lawful, at least under federal law.

But, the EEOC’s guidance is not binding and there have not been any apparent court cases concerning the legality of vaccination requirements. On June 12, 2021, however, a Texas federal court dismissed a challenge to a Texas hospital’s workplace rules requiring that employees be vaccinated or be fired. 116 employees challenged the rule. Today’s Long Island employment law blog discusses the case.

On April 1, 2021, Texas hospital Houston Methodist, issued a policy directing that all of its employees must be vaccinated by June 7, 2021. 116 employees challenged the rule in federal court and asked that the court block the hospital from requiring that they be injected with the vaccine or be fired.

June 11, 2021

“Probable Cause” Obtained in Age/Disability Discrimination Case

by Famighetti & Weinick

At the beginning of the COVID-19 pandemic, Long Island employment lawyers Famighetti & Weinick PLLC published information on our website warning that the financial impact of the pandemic could be used by employers to conduct unlawful discriminatory layoffs. Indeed, the firm has seen this scenario play out. On June 7, 2021, the New York State Division of Human Rights issued a determination of Probable Cause, in a case filed by Famighetti & Weinick PLLC alleging that the client’s inclusion in a reduction in force plan constituted discrimination based on age and/or disability. Today’s Long Island employment blog discusses this decision.

According to the New York State Division of Human Rights, the employee worked for a Long Island medical provider for 34 years and was 70 years old. After the pandemic started, the company implemented a reduction in force plan which included the 70 year old employee. The employee alleged that she was replaced with a younger employee who had less experience, showing her inclusion in the plan was pre-text for discrimination. But, the company alleged 28 employees in total were terminated and their ages ranged from 20 to 79, undermining a claim that age played in role in termination decisions.

During the Division’s investigation, it learned that the employee’s position was indeed given to a younger employee with much less experience. The company argued the decision was based on the replacement’s efficiency as compared to the terminated employee, but could not articulate any demonstrable basis for this comparison.

June 2, 2021

Can I be required to get vaccinated?

by Famighetti & Weinick

In late 2020, COVID-19 vaccines began rolling out to the public. Some individuals could not roll up their sleeves quick enough to get the vaccine. Others, however, are reluctant to receive the vaccine for any number of reasons. With the vaccine now widely available, businesses, schools, and other public places are considering whether to require vaccinations for workers, students, customers and/or visitors.

Concerning workplaces, on May 28, 2021, the Equal Employment Opportunity Commission, the federal agency charged with regulating workplace discrimination, issued guidance relating to COVID-19 vaccines and employment. Among other things, the EEOC’s guidance addresses whether employers can require employees to get vaccinated. Today’s Long Island employment law blog discusses the guidance.

Generally, employers have broad discretion about how to govern their workplaces and their workers’ working conditions. Of course, some limitations exist. The National Labor Relations Act regulates some conditions, such as employees’ cooperating together to improve their working conditions. OSHA regulates workplace safety standards. The FLSA sets a minimum wage and overtime pay requirements. There’s also a myriad of anti-discrimination laws which prohibit employers from setting employees’ terms and conditions of employment based on protected characteristics such as age, race, disability, sex, national origin, or religion.

April 28, 2021

Court Rules on Statute of Limitations for Unpaid Wage Cases

by Famighetti & Weinick

The Fair Labor Standards Act (FLSA) is the federal law which, generally, regulates minimum wage and overtime that employers must provide to employees. Statutes of limitations set the time periods in which a lawsuit must be filed. For the FLSA, the statute of limitations is either two years or three years, depending on whether the violation was willful or not. Today’s Long Island employment law blog discusses a recent appellate court decision concerning willfulness in FLSA cases.

In Whiteside v. Hover-Davis, Inc., the plaintiff worked for the defendant corporation as a “Quality Engineer.” The company classified the plaintiff as a salaried employee exempt from overtime. But, after almost a decade, the company transferred the plaintiff to a different position with different responsibilities. The company continued to pay the plaintiff via a salary, even though other workers with the same title were paid hourly and the worker who the plaintiff replaced had been paid via a salary.

In the new position, the plaintiff worked 45 to 50 hours per week, for four years. Although the FLSA requires that employers pay workers an overtime premium for all hours worked over 40 in a week, the plaintiff’s employer did not pay him overtime. On January 8, 2019, the worker filed a lawsuit alleging a number of claims, including that he was not paid properly under the FLSA and the New York Labor Law.

April 1, 2021

Employment Lawyers Ask Supreme Court to Review Due Process Case

by Famighetti & Weinick

On April 1, 2021, Long Island employment lawyers Famighetti & Weinick PLLC filed a Petition for Writ of Certiorari with the United States Supreme Court. The Petition asks the court to take up a case concerning the due process rights of public employees. Today’s Long Island employment law blog discusses the case and the petition.

Since 2019, employment attorney Matt Weinick has worked as co-counsel representing four former high ranking New York City Police Department officers. On behalf of the officers and along with co-counsel, the firm filed a lawsuit in the Southern District of New York alleging that the City of New York Police Department deprived the officers of due process by coercing their resignations without providing notice of charges against them or an opportunity to be heard about allegations of wrongdoing, constituting a deprivation of due process. The complaint alleged that the City acted to avoid a departmental hearing and wanted the officers removed from the department to take the fall for ongoing allegations of widespread corruption in the department. The case received press attention from, among other papers, the New York Post.

After the lawsuit was filed, the City ask the court to dismiss the case. The City argued that a 1984 case decided by New York’s federal appellate court, prohibited employees from suing municipalities for a violation of due process, when the claim is based on an allegation that the employees’ resignations were coerced. The trial court agreed and dismissed the case.

March 30, 2021

Firm’s Religious Discrimination Case to Proceed to Administrative Trial

by Famighetti & Weinick

On March 26, 2021, the New York State Division of Human Rights issued a determination of Probable Cause in a firm’s religious discrimination case. Today’s Long Island employment law blog discusses the case and what happens next.

The following is taken from the New York State Division of Human Right’s final investigation report.

The firm’s client, a Muslim, worked for an ambulance company as a driver. When he was first hired, he was told he would have to shave his beard, which he initially did, but told the company he maintained his beard because of religious beliefs. He interprets his religious teachings as prohibiting Muslims from cutting their beards.

March 3, 2021

Judge Rules Firm’s Case Against Long Island Fire Department Can Proceed

by Famighetti & Weinick

In November 2020, the Long Island employment law firm Famighetti & Weinick PLLC filed a federal lawsuit against a Long Island volunteer fire department on behalf of a female volunteer firefighter. The lawsuit alleged that the department discriminated against the firefighter based on her sex, then retaliated against her when she complained about the discrimination. The fire department asked the court to dismiss the case. Today’s Long Island employment law blog discusses the lawsuit, the department’s motion, and the court’s decision.

The lawsuit alleges that the female volunteer firefighter is currently the only female in the department. Unlike her male counterparts, the female firefighter alleged that she was treated differently by being subject to unwarranted scrutiny over work on department committees. She further alleged that stipends and budgets under her control were cut to levels lower than males who had previously held her position.

After years of ongoing disparate treatment, the firefighter eventually brought her complaints to the department’s attention. After making the complaint, individuals in the department tried to oust her from her position as an officer of the department, and took other action allegedly in retaliation for her complaints. Ultimately, the fire department decided that her claims lacked merit, so she filed a charge of discrimination with the Equal Employment Opportunity Commission.

March 1, 2021

EEOC Publishes 2020 Statistics

by Famighetti & Weinick

The Equal Employment Opportunity Commission is the federal agency charged with investigating and regulating workplace discrimination. Before filing a lawsuit in court, employees must first file a charge with the EEOC. Each year, the EEOC tracks the cases filed by charge type, meaning the type of the discrimination the employee is alleging. The EEOC has published its 2020 employment discrimination statistics. Today’s Long Island employment law blog takes a closer look at the numbers, and in particular, we take a look at what’s happening in New York.

Overall, across the entire country and the EEOC’s jurisdiction, 67,448 charges were filed. Later, we’ll discuss that there may be factors to consider other than less employees are filing charges, but 2020 marks the fourth straight year of declining charges, and nearly a decade of an overall average decrease in total filings.

New York is following the national trend. In 2020, 2,999 charges were filed, down from 3,220 the year before. This is also the fourth year of declines. The following chart shows that, with the exception of a few upward ticks, the trend has generally been less and less filings since the reporting started in 2009.

February 25, 2021

New York City Requires Just Cause to Terminate Fast Food Workers

by Famighetti & Weinick

New York State is generally considered an at-will employment state. Employment at-will means that employers can fire employees for any reason or no reason at all, unless the termination would be a violation of law. Examples of violations of law include unlawful discrimination or retaliation.

Other exceptions to at-will employment in New York include circumstances where the employee has an employment contract which alters the employment at-will default rule. Employees, typically high ranking executives or professionals such as doctors and lawyers, may have individual employment contracts. Other employees such as laborers, may have union contracts, known as collective bargaining agreements. Additionally, government employees may have job protection under the Civil Service Laws.

But, most employees in New York are at-will and have no job protection.

February 10, 2021

FW Wins Arbitration Ruling

by Famighetti & Weinick

Long Island employment lawyer Peter Famighetti has won a ruling on a threshold issue concerning an arbitration for a faculty member of Nassau Community College. Famighetti represents a college professor in a dispute related to the professor’s bid to become chairperson of his department. The professor alleged the teachers’ collective bargaining agreement was violated during the election process and ultimately filed a grievance to challenge the election process. Today’s Long Island employment law blog discuss what happened next in the grievance process.

After the professor started the grievance process via his union, the college challenged whether the professor’s issue could be heard in an arbitration. The college asserted two primary arguments. First, the college lodged a procedural arbitrability argument. This means that the college argued that the professor’s issues could not be arbitrated because, procedurally, he waited too long to file an initial grievance. In other words, the college alleged that the union contract’s deadlines for filing a grievance were not met by the professor.

Second, the college made a substantive arbitrability argument. This means the college argued that the professor’s issue could not be arbitrated because a determination had already been made in another professor’s grievance proceeding which addressed the same issues presented in this professor’s grievance. Because of that determination, the professor could not arbitrate his claims.