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

July 5, 2018

Looking at the Janus Decision’s Dissent

Last week, Famighetti & Weinick PLLC posted a blog summarizing the Janus v. AFSCME union case which overturned the 1977 decision, Abood v. Detroit Board of Education. The majority decision held that employees who choose not to be part of a union but who nonetheless benefit from collective bargaining results are no longer required to pay union agency fees. Today’s Long Island employment law blog discusses the dissenting opinion in Janus.

As we discussed in our original Janus case blog, from a strictly legal perspective, the Janus majority opinion is a First Amendment free speech case. From the point of view of the four dissenting Justices in Janus, however, the nation’s First Amendment jurisprudence makes clear that agency fees do not implicate any First Amendment concerns.

To recap the essential facts of Janus, the case looked at the constitutionality of agency fees charged by public-sector unions. Agency fees are collected by unions from employees who choose not to join a public-sector union. The fees are supposed to support administrative functions of the union. The Supreme Court first looked at these arrangements in the Abood case and set forth the rules under which states could constitutionally apply these fees. Since Abood, 22 states have relied on those rules to implement laws concerning public-sector unions.

July 3, 2018

New York Court Rules Delivery Drivers Not Employees

by Famighetti & Weinick

A New York company operates a website whereby users can place delivery orders from local stores and restaurants. The company uses couriers to pick up the orders and deliver them to the customers. Are these couriers employees under New York law? Today’s Long Island employment law blog discusses how a New York appellate court came decided the issue of whether these couriers are employees of the company?

In the case of Matter of Vega, heard and decided by New York’s Third Department, the company, Postmates, Inc. “engaged” individuals to perform work for the company. As noted, Postmates operated a website whereby customers can place orders at local restaurants and stores. The orders are picked up by couriers, such as Vega, and delivered to the customers.

Postmates, however, terminated Vega alleging, among other things, that it had received negative customer feedback about him. So, Vega filed for unemployment insurance benefits, but Postmates challenged the claim. Initially, a worker’s compensation Administrative Law Judge decided that Vega was not eligible for unemployment benefits because he was not an employee. On appeal to the Unemployment Insurance Appeal Board, however, the Board reversed that determination and decided that Vega was indeed an employee, making him eligible for benefits.

June 28, 2018

Discussion of the SCOTUS Union Dues Case: Janus

by Famighetti & Weinick

On June 27, 2018, social media and news outlets went crazy when the Supreme Court decided Janus v. State, County, and Municipal Employees. Many posters and commentators argued that the decision constituted an assault by SCOTUS on unions. From a strictly legal perspective, however, Janus decided a question related to the First Amendment’s free speech guarantees. Today’s Long Island employment law blog discusses the legal issues concerning the Janus union decision.

Janus concerned the Illinois Public Relations Act. The Act allows public service employees in the state to unionize. Although the Act did not require all employees to join the union, the law nonetheless required that the union be the sole representative for all employees. The law grants unions broad authority to negotiate employment terms including pay, wages, and hours. On the other hand, employees cannot use any other agent to negotiate employment terms nor can they negotiate directly with the employer.

Under the Act, employees may refuse to join the union, but are still required to pay dues, albeit at a reduced amount and in accordance with previous Supreme Court directives. Non-members were required to pay to for union activities including advertising, membership meetings, and litigation.

June 9, 2018

Masterpiece Cakeshop: SCOTUS Untangles a Collision of Rights

by Famighetti & Weinick

When two legal rights collide, how does the court pick a side? The United States Supreme Court’s ruling on June 4, 2018, in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, made it clear that it is not an easy decision. Today’s Long Island civil rights blog discusses whether a baker can rightfully turn down a gay couple’s request to design their wedding cake if the baker’s religion does not accept gay marriage.

Freedom of speech and religion are two important civil liberties protected under the First Amendment to the United States Constitution. Freedom of speech extends to both traditional verbal speech, and expressive conduct also known as symbolic speech. Burning a flag and wearing a t-shirt opposing a political leader are two examples of symbolic speech.

Conduct remains at the heart of symbolic speech claims. Thoughts, ideas, and opinions are powerful and courts have decided to protect them in certain scenarios. However, the conduct’s offensiveness or irrationality can never be taken into consideration when deciding whether or not the conduct deserves First Amendment protection.

June 4, 2018

First Amendment and Twitter

by Famighetti & Weinick

The right to freedom of speech is a core value guaranteed by the First Amendment to the United States Constitution. The First Amendment, however, regulates only government action, not private citizens or private companies. Continue reading

May 30, 2018

Penalties for Unpaid Wages in New York

by Famighetti & Weinick

Employers in New York cannot willfully turn their backs to the state’s minimum wage and overtime laws and expect to get away with it. Courts or the Department of Labor are likely to impose hefty fines or penalties. Today’s employment law blog discusses the penalties employers on Long Island and in the rest of the state can face for willfully violating the law. Continue reading

May 29, 2018

Supreme Court Decides Case About Arbitration in Employment Cases

by Famighetti & Weinick

Unpaid wage and overtime lawsuits are often brought as class actions or collective actions. This way, many employees can band together and use the power of numbers to take on powerful corporations. But, on May 21, 2018, The U.S. Supreme Court practically slammed its doors directly in employees’ faces while providing an easy escape route for employer’s to violate workers’ rights. Continue reading

May 24, 2018

“Drumbeat of Retaliation” Case Decided

by Famighetti & Weinick

Retaliation in the workplace is illegal. The law protects employees who speak up when they believe the employer discriminated against them because of a protected characteristic such as race, gender, age, disability, religion, or national origin. Employers cannot try to “get back” at the employee by negatively affecting his or her job such as by demoting, firing, or reducing the employee’s hours or pay. Continue reading

May 17, 2018

First Amendment Retaliation From Union Activity

by Famighetti & Weinick

The First Amendment of the United States Constitution protects, among other rights, the freedom of speech. An unsettled area of employment law in New York has been the question of how much protection does the First Amendment provide to public sector employees like police officers. Today’s Long Island employment law blog discusses a recent case involving a police officer’s union activity and First Amendment retaliation. Continue reading

May 7, 2018

Employment lawyer Weinick to Teach Skills Class

by Famighetti & Weinick

For the fourth consecutive year, Long Island employment lawyer Matt Weinick has been asked to return to Hofstra Law School to teach the Foundational Lawyering Skills class. Weinick will be designated as a Special Instructor to teach second year law students, commonly referred to as “2L’s.”

According to Hofstra Law School’s website, the Foundational Lawyering Skills class is a required course for all second year students. It teaches “core lawyering skills” such as litigation and transactional lawyering. Instructors assess the students’ competency in those skills. The class is comprised of a lecture and “break-out classes.” Weinick will be instructing one section of the break-out class on Tuesday afternoons.

The fall 2018 semester will be the fourth year in a row Weinick has participated as an instructor in the Foundational Lawyering Skills class program. Last year Weinick’s students commented that he was “pleasant,” “professional,” gave “thoughtful feedback,” “He was good, seemed effective,” and he was “Great, informative, knew the material, gave effective comments.”