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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.

On August 24, 2023, the Honorable Philip M. Halpern administered the judicial oath of office to employment lawyer Matthew Weinick, marking Weinick’s appointment to the panel of mediators serving the United States District Court, Southern District of New York. As a panel mediator, Weinick will be randomly selected to serve as a mediator for cases designated for court ordered mediation.

Mediation is a form of alternative dispute resolution. Rather than the formal, rigid structure of court proceedings, mediation is an informal and confidential way for plaintiffs and defendants to meet to try to reach a settlement of their dispute. Mediators are trained in techniques which can help the parties reach a settlement. More information about mediation in general, is available here.

The Southern District of New York (SDNY) is one of New York’s federal courts. It has jurisdiction over federal cases from counties in New York State such as New York, Bronx, Westchester, Rockland, Sullivan, Orange, and Dutchess. Because of the area it covers, the Southern District of New York has handled many famous court cases, including most recently, the sentencing of President Trump’s lawyer Michael Cohen, the “deflategate” litigation relating to the NFL, and the prosecution of Bernie Madoff.

In a sex discrimination case filed by New York employment lawyers Famighetti & Weinick PLLC, the New York State Division of Human Rights has issued a determination of Probable Cause. This means a judge will hold a hearing to determine liability and damages. Today’s Long Island employment law blog discusses the case and the decision.

The foregoing is taken from the filed charge of discrimination, and the Division’s investigation report:

F&W filed a charge of discrimination with the New York State Division of Human Rights (NYSDHR), on behalf its client, a former volunteer firefighter who applied to volunteer with the Ladies Auxiliary of the fire department. The NYSDHR is an administrative agency of the State which investigates claims of unlawful discrimination.

When employers offer severance pay to a terminated employee, the employers typically require that, before receiving the pay, the employee sign a severance agreement. Severance agreements primarily are used to obtain a waiver from the employee of any legal claims the employee may have had against the employer, known as a general release. But, many employers also include non-disparagement and confidentiality clauses. Under a recent ruling from the National Labor Relations Board (NLRB), non-disparagement and confidentiality clauses are unlawful.

What are non-disparagement and confidentiality clauses and what does the NLRB’s ruling mean? Today’s Long Island employment law blog explains.

As noted, when employers often severance pay to an employee, the employee usually must also sign a severance agreement. The agreement sets forth the terms to which the employee must agree, in order to receive and keep the severance pay. Among the many provisions generally included in severance agreements is a non-disparagement provision.

The Fair Labor Standards Act is a federal law which requires employers to pay certain employees a minimum wage and overtime. Like most laws, the FLSA contains various exemptions. On February 22, 2023, the Supreme Court of the United States issued a decision in the case Helix Energy Solutions Group, Inc. v. Hewitt, an FLSA case which addressed the question of whether  a high earning employee is exempt from the FLSA’s overtime requirement, if the employer pays the employee based on a daily rate. Today’s Long Island employment law blog looks at the Helix decision.

Unless an exemption applies, the FLSA requires that employers pay overtime to employees who work more than 40 hours in a workweek. Exemptions under the FLSA include employees who work in an executive, professional, or administrative capacity. In Helix, the court looked at the executive exemption.

The executive exemption to the FLSA generally applies to workers if a three part test is met. First, the employer must pay the employee on a salary basis. Second, the salary must meet a specified amount set by regulation. Third, the nature of the employee’s job must relate to executive responsibilities, as those responsibilities are established by law.

On November 2, 2022, United States Magistrate Judge Robert Levy swore in Long Island employment lawyer Matthew Weinick as a mediator for the Eastern District of New York. The moment marks the culmination of years of work Weinick has spent training to serve as a mediator for the EDNY panel.

Mediation is an informal way for parties to a dispute to work towards a negotiated settlement, instead of having a judge or jury decide the outcome. Advantages to mediation include that it is often quicker and less expensive than a lawsuit, and the parties control the outcome of the case, instead of a court. Because of the efficiencies of mediation, courts such as the EDNY, often order parties to try mediation before the case continues in court.

The path towards Weinick joining the EDNY mediation panel started many years ago. Weinick first applied for and was accepted to the EDNY’s pro bono mediation advocacy panel. On the advocacy panel, Weinick represented parties involved in lawsuits filed in the Eastern District of New York. The EDNY, as it is known, has jurisdiction over federal lawsuits arising in Staten Island, Brooklyn, Queens, Nassau, and Suffolk counties.

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