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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.

Long Island employment lawyer, Matthew Weinick, has been selected to chair the Nassau County Bar Association’s Labor and Employment Law Committee. Founded in 1899 with just nineteen members, the Nassau County Bar Association now boasts nearly 5,000 members.

The Labor and Employment Law committee is tasked with analyzing proposals for new federal and state legislation and regulations relating to employment issues such as employer-employee relations, benefits, and pensions. The committee also reviews judicial decisions concerning employment law matters including discrimination, retaliation, and wage and hour issues.

The committee meets once per month at the association’s Mineola office building, affectionately known by members as “Domus.” Meetings provide committee members the opportunity to discuss the latest developments in employment law. The committee invites a speaker to each meeting, to lead a discussion with members about a particular area of employment law.

The Equal Employment Opportunity Commission (EEOC) has been issuing guidance for employers about how federal discrimination laws relate to the COVID-19 pandemic. Specifically, disability discrimination laws cross paths with employers’ efforts to mitigate the risk of COVID-19 transmission in the workplace. Today’s Long Island employment law blog discusses some of the most recent guidance issued by the EEOC, the government agency responsible for enforcing federal discrimination laws. Our previous blogs discussed EEOC guidance issued earlier this year.

Employees with high risk family members at home have expressed concern about returning to work for fear of contracting coronavirus and spreading it to their families. The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with disabilities. The EEOC has already indicated that employers may be required to provide reasonable accommodations to employees who face higher risks from covid-19. But, do employers have to provide accommodations because of an employee’s family member’s risk to coronavirus? The latest EEOC guidance says employers are not required to accommodate an employee because a family member is at risk.

Federal anti-discrimination laws, such as the ADA and Title VII, also prohibit an employer from creating a hostile work environment against employees based on the employees membership in a protected class, such as having a disability or based on race or national origin. The June 2020 EEOC guidelines remind employers to be mindful of their obligation to prevent workplace discrimination. As it relates to coronavirus, the EEOC suggested that employers be “alert” to comments directed at employees based on employees of Chinese or Asian national origin. Comments from co-workers about the origins of coronavirus may be discriminatory. Though not particular to COVID-19, the EEOC reminds us that harassment can take the form of e-mails, phone calls, and video chats. In other words, use of technology is no defense to a claim of discrimination.

From the beginning of the coronavirus pandemic, the civil rights lawyers at Famighetti & Weinick PLLC, have predicted that constitutional challenges to  government covid-19 regulations would likely fail. Our videos and blogs have outlined some of our reasoning and earlier this month, partner Matt Weinick published an article further discussing the role of a 1905 Supreme Court case, which would likely prove fatal to most constitutional challenges.

This week, a Brooklyn federal judge again rejected another constitutional challenge, this time brought by a Long Island strip club and its owner. Today’s Long Island civil rights blog discusses the case and the judge’s decision.

In McCarthy v. Cuomo, the plaintiffs were the owner of a strip club, and the strip club itself. The essence of the lawsuit was similar to other challenges we’ve written about, except the suit also alleged that the plaintiffs were treated differently because of the type of business it conducts – a gentleman’s club. Generally, the plaintiffs alleged that the Governor’s shutdown orders and social distancing orders, violated the state and federal constitutions. They further alleged that the federal government’s Paycheck Protection Program unlawfully prohibited them from applying because of the type of business they conduct.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination. Title VII, however, prohibits only the types of discrimination identified in the statute, including race discrimination, religious discrimination, national origin discrimination, and sex discrimination. Title VII does not explicitly prohibit discrimination based on sexual orientation and transgender status. Accordingly, for years, scholars and courts debated whether Title VII’s prohibition of sex discrimination includes discrimination based on sexual orientation or transgender status.

On June 15, 2020, the United States Supreme Court settled the question. In a 6-to-3 ruling, the Court held that an employer who fires an individual for being gay or transgender violates Title VII. Today’s Long Island employment law blog discusses the Bostock v. Clayton County decision.

The Background of Bostock and Sexual Orientation and Gender Identity Discrimination Law in the United States

With covid-19 not giving up, employment lawyers across the country, including our Long Island employment lawyers at Famighetti & Weinick PLLC, are facing questions about how the new pandemic will affect essential workers and non-essential workers who go back to work as the country adjusts to “the new normal” and the economy reopens.

In one of our previous posts, we opined that workers with generalized fear or anxiety about workplace covid-19 exposures likely were not protected under the Americans with Disabilities Act (“ADA”). That blog assumed that only vulnerable workers, or workers with underlying medical conditions worried about contracting coronavirus, were protected under the ADA.

A recent federal court decision, however, suggests that even workers with generalized fear or anxiety about workplace covid-19 exposures may be protected under the ADA. Even though the decision was issued by a Texas district court concerning voters, the analysis may be used to extend the disability discrimination laws’ coverage for workers who lack immunity to covid-19.

Early on in the coronavirus pandemic, we posted content about the constitutionality of social distancing and business shutdown orders. At the time, the issues were new and had not been recently tested in court. With protests about such orders’ constitutionality becoming more prevalent and with the orders being tested in court, it is time to re-visit the question of the constitutionality of COVID-19 related government regulations.

Constitutionality of Shutdown Orders

On May 15, 2020, United States District Judge Gary R. Brown (Eastern District of New York) issued a decision relating to New York’s business shutdown order, also known as the Pause. In sum, Governor Cuomo’s order directs that all business which are non-essential must operate via telecommuting only and must reduce  their in-person workforce by 100%. Essential businesses may stay open with no reduction in force required. The order allowed for enforcement under the Public Health Law with consequences for businesses which did not comply.

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