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.

Non-competes are often used, as noted, for sales positions and other white collar jobs, but more and more frequently, non-competes are creeping into other industries. States have recently brought lawsuits against some fast food chains for using non-competes to limit employees who work as cashiers and/or cooks.

Opponents of non-competes criticize them as, among other things, a tool to control wages, to inhibit employees from growing and finding better jobs, and to limit competition. Proponents argue, among other things, that non-competes are essential to maintain trade secrets.

Notwithstanding the debate, the FTC has no voted to ban most non-competes across the United States. The FTC enforces anti-trust law. Five voting commissioners who are appointed by the President control the FTC. Currently, three Democrats and two Republicans sit on the FTC and the vote to implement the rule followed those party lines.

According to the FTC, the rule is expected to increase worker “earnings” by up to $488 billion over ten years. The FTC further believes the rule will lead to 8,500 new businesses being created each year and will result in reduced health care costs. It further expects an increase in “innovation” with the filing of more patents each year.

The rule not only bans non-competes moving forward, but also renders existing non-competes unenforceable. The rule, however, exempts “senior executives”, defined as workers earning more than $151,164.00 annually and who are in policy making positions. The rule further requires that employers who have existing non-competes send notices to workers (other than those that the rule exempts), advising the workers that the company will not enforce any non-compete that might apply to them.

The FTC bases legal authority in its rule implementation on its finding that non-competes “negatively affect conditions in labor markets”, thus they are an unfair method of competition, which is a violation of the FTC Act. Despite this finding, it is likely that one or more lawsuits will be filed to challenge the rule and it is likely that at least some of those challenges will argue that the FTC lacks legal authority to implement such a rule.

Notably, the FTC identifies lawful alternatives to non-competes. Most notable and practical are non-disclosure agreements and trade secret laws. The FTC finds these alternatives to be “well established” methods of protecting proprietary and sensitive information. The FTC also notes that employers could consider improving wages and working conditions, as incentives to retain workers “on the merits.”

The rule is set to take effect in August, but as noted, we expect multiple legal challenges to the rule. Nonetheless, businesses should immediately start considering plans to protect their legitimate business concerns which may have, in the past, been addressed by using non-compete agreements.

The Long Island employment lawyers at Famighetti & Weinick PLLC are experienced in drafting and litigating non-compete agreements. We remain tuned into the legal developments related to the FTC’s rule concerning non-competes and will post updates to our social media sites and blog.

Whether you’re an employee beholden to a non-compete agreement or a business which relies on the protections of non-competes with your employees, F&W can help you navigate this confusing time. You can speak to one our employment lawyers at (631) 352-0050.

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.

Non-disparagement clauses usually look like this:

“Employee agrees not to make statements which could disparage or harm the Company, its parents, affiliates, officers, directors, employees, agents, or representatives.”

Basically, non-disparagement clauses prohibit employees from speaking badly about the employer. Even if lawful, such provisions can be objectionable and an experienced employment lawyer can negotiate the language of non-disparagement clauses and can oftentimes make the requirement reciprocal, meaning the employer must also agree not to disparage the employee.

Confidentiality clauses prohibit employees from disclosing the terms of the severance agreement. The language of a basic confidentiality clause reads:

“The employee agrees that the terms of this agreement are confidential and agrees not to disclose them to any third person, other than the employee’s spouse, attorneys, or tax advisors.”

Agreements usually provide for penalties if the employee violates the non-disparagement and/or confidentiality terms. Employers usually include penalties such as requiring re-payment to the employer of any severance payments made, attorneys fees incurred in connection with the breach, and injunctive relief, which means a court order directing that the employee comply with the non-disparagement terms.

Decisions from the NLRB in 2020 ruled that non-disparagement and confidentiality in severance agreements were lawful. In 2023, however, the NLRB reversed those decisions in the McLaren Decision. The problem, according to the 2023 decision, is that the National Labor Relations Act (NLRA) prohibits employers from taking actions which have a reasonable tendency to interfere with, restrain, or coerce an employee’s rights provided by Section 7 of the NLRA. One of those rights is the right of employees to be able discuss the terms and conditions of their employment with co-workers, and others. Indeed, the NLRB described this right as the “heart” of Section 7’s protected activity.

To preserve this right, the NLRB 2023 decision overturned the 2020 decision and ruled that employers who proffer a severance agreement with terms which restrict employees’ exercise of NLRA rights violate the NLRA. Applying the rule to non-disparagement agreements, the NLRA determined that such agreements can interfere with a former employee’s right to make public statements about the workplace.

Similarly, the NLRB ruled that confidentiality provisions can chill an employee’s right to report workplace violations to the NLRB and would further prohibit employees from assisting the NLRB in prosecuting claims against the employer. Further, confidentiality would prohibit the employee from discussing the terms of the severance agreement with coworkers.

A question left open by the NLRB was whether the new rules would apply retroactively to agreements that were already signed. In March 2023, the NLRB’s General Counsel issued a memorandum stating that the rules are indeed retroactive. Thus, to the extent an employer tries to enforce a non-disparagement or confidentiality term which was previously agreed to, the employee would have a claim against the employer for a violation of the NLRA.

For violations of the prohibitions against offering non-disparagement and confidentiality terms in a severance agreement, employees may be able to obtain an order from the NLRB that the employer cease and desist the unlawful conduct. Additionally, employees can recover money damages from any direct or foreseeable pecuniary harms.

One outcome of particular significance to employment litigation, is that the Board’s decision likely extends to cover settlement agreements. When an employment lawsuit ends by a settlement, the parties enter into a settlement agreement. That agreement, usually written by the employer, usually contains confidentiality provisions, and sometimes includes non-disparagement. These provisions may now be barred by the McLaren decision.

Employees presented with a non-disparagement and/or confidentiality clause in a severance agreement should speak to an experienced labor lawyer. Famighetti & Weinick PLLC is available to review severance agreements and to advise employees about provisions such as non-disparagement and confidentiality.

Employers who offer severance to employees should similarly first speak to experienced employment lawyers. Severance agreements are not only subject to the rules set forth by the NLRB, but they may also be subject to rules under anti-discrimination laws such as the Age Discrimination in Employment Act, as well as New York’s General Obligations Law.

Famighetti & Weinick PLLC’s employment lawyers are available at (631) 352-0050. More information about employment law issues is available on our Long Island Employment Law Blog.

Non-Disparagement and Confidentiality Clauses in Severance Agreements Declared Unlawful

The HERO Act defines covered employees broadly as independent contractors, part-time employees, domestic workers, home health and personal care workers, seasonal workers, and contractors or subcontractors. State employees, government employees, and independent contractors of the state are excluded.

Employers are similarly broadly defined, but are limited to private employers who employ more than ten employees.

The Act requires the NYSDOL to create model prevention standards with templates. Employers can choose to implement these model standards using the templates, or employers can choose to develop their own standards.

The Act requires employers to allow employees to create a joint labor-management workplace safety committee by November 1, 2021. Committees are authorized to raise concerns to employers, review health and safety policies, participate in government workplace visits, and review employer reports pertaining to health and safety. Furthermore, the committee may meet during work hours for only two hours each quarter and attend trainings on the functions of the committee for only four hours each quarter without loss of pay. If meetings or trainings extend past the allocated time, employers can deduct pay accordingly.

The committee must include employer and employee designees. At least two-thirds of the committee must be made up of non-supervisory employees who will either be chosen by the non-supervisory employees or the collective bargaining representative if one exists.

An employer may also choose to establish its own prevention standards but must do with collective bargaining representative or employee participation, and must be customized to incorporate specific industry hazards and conditions. If the employer creates its own prevention plan, it must still meet all of the same requirements as the NYSDOL prevention plan. Prevention plans must exist for each worksite or each physical space.

June 2021 amendments clarified guidelines for employees concerning a private right of action. Employees may seek only injunctive relief for violations of the plan and only if a condition adopted by the employer can lead to a “substantial probability of death or serious physical harm.” The employer must have been aware of the violation. The employee must file a civil action wtihin six months from the date the employee learned of the violation.

The employee must also notify the employer of the violation and provide the employer with at least 30 days to cure it before bringing the action, unless the employer has demonstrated an unwillingness to cure it or acted in bad faith. An action may not be brought if the employer corrects the violation.

If a civil action is brought, employees may seek injunctive relief and attorney’s fees. However the claim must not be frivolous or the employer will be awarded costs and attorney’s fees. If an employer violates this Act, the Commission may penalize the employer $50 per day for an employers’ failure to adopt the plan and between $1,000 and $10,000 for failure to follow the plan.

The HERO Act prohibits retaliation. Employers may not retaliate against employees who refuse to work at a worksite where an employee reasonably believes that working would expose him or her to an unreasonable risk. However, to exercise this right, either employees must first notify the employer, the employer knew, or should have known of the working conditions, and the employer must have failed to act. Employers cannot take adverse employment actions against employees who exercise their rights under the Act.

The NYSDOL released the minimum standards and template policies on July 6, 2021 providing employers 30 days to implement the policies. The templates are available here: https://dol.ny.gov/system/files/documents/2021/07/model-airborne-infectious-disease-exposure-prevention-plan-p765.pdf. By August 5, 2021, employers must adopt the model standard prevention standard specifically for their industry or develop their own prevention plan that meets or exceeds the minimum standards.

Employers then have 30 days from the adoption of the policy, September 4, 2021, to provide clear protocols to their employees. Employers must give employees the written exposure plan in English and the primary language of their employees. This plan must be provided to new employees at hire, given to all employees 15 days after reopening due to airborne infectious disease closure, posted at the worksite, in the employee handbook, and be available at any time for review.

Plans must always exist but do not need to be activated unless an infectious disease is designated as highly contagious. Therefore, at this time employers only need to implement these prevention plans but they do not yet need to be activated.

When the Commissioner of Health declares a disease is a serious risk to the public health, employers must take of action under the plan. Employers must immediately review and activate their worksite exposure prevention plans, and provide a verbal review to employees of the policies and their rights. Employers must then provide each employee with a copy of the prevention pan, post it at the worksite, and ensure that a copy is always available to employees while on shift.

The prevention plan minimum standards require employees to take a health screening survey at the beginning of each work day to make sure no one has any symptoms. Employers must also provide face coverings, personal protective equipment, and hand hygiene facilities at the expense of the employers. Soaps must contain at least 60% alcohol. When possible, employees must remain six feet apart and remain physically distant.

In addition, employers must implement a plan for cleaning and disinfecting the workspaces. Frequently touched surfaces, shared tools, vehicles, sleeping quarters, bathrooms, and other common areas must be cleaned as frequently as possible.

Now that the NYSDOL standards and model policies have been implemented, New York employers are required to develop and implement a plan, post the plan in the worksite, and distribute the plan to all employees. Employers must be prepared to activate the plan at any time.

Famighetti & Weinick PLLC are experienced employment law lawyers on Long Island and the New York Hudson Valley. For more information about the HERO Act, contact one of our employment attorneys at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.

Today’s Long Island employment law blog was written by law student intern Danielle Jacobs.

NY HERO Act

Famighetti & Weinick PLLC are experienced employment lawyers on Long Island and in the New York Hudson Valley. Our employment attorneys are available at 631-352-0050 or on our website at http://linycemploymentlaw.com.

Today’s Long Island employment law blog was written by law student intern and Hofstra law school student, Danielle Jacobs.

NYC Retirement Savings Law

The law provides that employees can accrue sick leave time based on hours worked. How many hours employees can accrue and whether the time is paid or unpaid varies on several factors, but regardless of these factors, employees earn one hour of sick leave for every 30 hours worked. Accrual begins on the effective date of the law (10/1/20), or upon employment, whichever is later. Accruals and requirements to pay for the sick time are broken down as follows:

• Employers with 4 or less employees (in a calendar year) with net income of one million dollars or less, must provide up to 40 hours of unpaid sick leave each calendar year;
• Employers with 4 or less employees with net income of more than one million dollars must provide up to 40 hours of paid sick leave each calendar year;
• Employers with 100 or more employees must up to 56 hours of paid sick leave.

Employers are free to provide additional sick leave time above and beyond what the law requires.

For purposes of accrual, employers can choose to provide the full amount of required sick leave at the beginning of each year, but employers cannot then reduce or revoke the time if the employee does not work enough hours to have otherwise earned the leave allotted. But, leave accrued starting on October 1st cannot be used until January 1, 2021.

The law defines the reasons why an employee may be entitled to use the leave:

• Illness, injury, or a health condition, whether mental or physical, and whether the employee has the condition, or the employee’s family member. No diagnosis or medical treatment is required to fulfill this provision.
• For diagnosis, care or treatment of illness, injury, or a health condition, including preventative care.
• If an employee or employee’s family is a victim of a family offense, sex offense, stalking, or human trafficking (exempting anyone who has committed the offense, regardless of relationship):
  • to receive services from a shelter, crisis center, or other program
  • for safety planning or relocation
  • to obtain legal or social services or to participate in legal proceeding, criminal or civil
  • to file a complaint or report with law enforcement
  • to meet with a district attorney
  • to enroll children in a new school
  • to take other action necessary for health, safety, or protection

Family member is defined broadly to include children, partners, spouses, grandchildren/parents, and children or parents of a spouse or domestic partner.

Employers can set incremental uses of the leave, not to exceed four hours.

Employees must be allowed to carry over unused sick leave to the next calendar year, again depending on employer size. Employers with less than 100 employees can limit employees to using 40 hours of leave per year and employers with 100 or more employees can limit leave to 56 hours per year.

The leave law expands discrimination and retaliation protection for employees, as well. Employers may not retaliate or discriminate against employees who use or request sick leave. The law acts like the FMLA in that it requires that employees be returned their same position held prior to taking leave.

This blog is merely a summary of the law’s requirements. Before enacting a sick leave policy, employers should consult an experienced employment law, such as the lawyers at Famighetti & Weinick PLLC, to ensure the policy complies with any and all laws.

Employees with questions about New York’s should similarly consult with us or visit our website for more information. Our Long Island employment lawyers are available at 631-352-0050 or on the web at http://linycemploymentlaw.com.

New York’s Paid Sick Leave Law

For years, workers have been battling with the companies over the legal status of their work relationship. The question is whether gig workers are independent contractors or whether they are employees. Independent contractors are not entitled to workers compensation benefits and unemployment benefits, and the company is not required to comply with minimum wage and overtime laws for independent. So, it’s highly beneficial for the companies to have their workers classified as independent contractors, but highly detrimental to the workers.

Fortunately or unfortunately, depending on the viewpoint, the question of whether a worker is an independent contractor or employee is not left to the company to decide. Rather, the question is a legal issue and resolved by applying legal principles to the business/worker relationship.

Workers and companies have waging war over the issue across the country. In New York, one of the leading cases lawyers were watching was In re Vega. On March 26, 2020, the New York Court of Appeals, New York’s highest court, issued its decision in the case. Today’s Long Island employment law blog discusses the legal issue in Vega, and the high court’s decision.

Vega worked for Postmates. Postmates is a courier service which picks up and deliver goods from local restaurants and stores, to customers. Postmates operate via a website and smartphone app.

Postmates hires the couriers and puts each candidate through a background check. After hire, the couriers are able to decide when they want to work by signing into the Postmates app. Workers can also decide which delivery assignments they want to accept. Postmates charges its customers a delivery fee. When a courier completes the assignment, Postmates the courier 80% of the delivery fee, whether or not the customer pays.

Vega, the worker at issue in the case, worker as a courier until, based on negative customer reviews, Vega was blocked by Postmates from using the app to accept assignments. Vega filed for unemployment insurance. The Department of Labor determined that Vega was an employee and entitled to benefits. Postmates disputed the decision, a hearing was held, and an administrative law judge decided that Vega was not an employee, but rather was an independent contractor and not entitled to benefits.

After rounds of appeals, the case arrived at the Court of Appeals. The Court began review by noting several principles of unemployment insurance law, including the most basic – that independent contractors are not employees and businesses do not have to pay unemployment insurance for independent contractors.

But, determination of whether a worker is an independent contractor is based in law. For unemployment insurance benefit purposes, New York looks at all aspects of the employment arrangement to determine employment status, but the “touchstone” of the analysis is the whether the employer exercised control over the results produced by the worker or the means used to achieve the results.

In Vega, the Court of Appeals determined that sufficient evidence existed to show that Postmates was indeed an employer because it exercised sufficient control of its workers. First, the Court noted that the service is operated through Postmates’ application and without the application, the workers could not get work assignments. Further, though the workers decide their own hours, the company controlled assigning particular jobs to individual workers based on the courier’s access to the job. Thus, customers have no ability to choose the courier they want to perform the job. Additionally, Postmates tracks the couriers and provides real-time status to the customer about estimated arrival times.

The financial arrangements further persuaded the court. Worker’s pay is set by the company, and couriers had no ability to negotiate pay. Also, the company suffered the loss if a customer did not pay, not the courier. Finally, the company set the fees for the customers and managed customer complaints.

In sum, the Court determined the couriers were essentially low-paid workers performing unskilled labor. They had little discretion about how to perform their jobs, thus the company had more than incidental control over the workers. In fact, the Court agreed that the Workers Compensation Board had more than enough evidence to determine that Postmates “dominates” important parts of the courier’s work.

In closing, the Court noted that Vega is different in that in invokes new and emerging technology, but legally speaking, the case is no different than past cases considered by the court which held workers were not independent contractors, but were employees.

Vega is an important decision and opens the door to important workplace protections previously unavailable for workers deemed independent contractors. As gig workers and online delivery and transportation services become more widespread and a greater part of the economy, workers can rest easier knowing they have greater protections. Workers will have to see whether the Vega analysis expands to other areas of workers’ rights, such as minimum wage and overtime laws.

If you have questions about independent contractors, unemployment insurance, or the Vega decision, contact a Long Island employment lawyer at 631-352-0050.

Independent contractor or employee

Federal, state, and local laws regulate discrimination in the workplace based on an employee’s sex and pregnancy. The New York State Labor Law specifically addresses lactation in the workplace. But, the New York City Council has expanded on those protections via bills 879-A and 905-A, part of what is known as the Mother’s Day Legislative Package.

According to the bill’s summary, the law covers New York City employers with 15 or more employees. It requires those covered employers to provide lactation rooms and refrigerators for employees to express and store milk. The rooms must be in a “reasonable proximity” to the employee’s work areas. Lactation rooms must be sanitary and cannot be a restroom. Further, the rooms must provide privacy, provide an electrical outlet, and have a chair and surface area to place items including a breast pump. The room must also have access nearby to running water.

Employers may multi-purpose a room, meaning the room can be used for purposes other than solely lactation, but while an employee is using the room to express milk, preference must be given to that employee and the employer must so instruct other employees. Employers may assert that the provision of the room causes an undue hardship, but they must then engage in a “cooperative dialogue” with the employee.

Bill 905-A sets forth requirements for New York City employers to establish policies concerning lactation room accommodations. The bill also directs the New York City Human Rights Commission to prepare and publish a model lactation room accommodation policy.

Specifically, bill 905-A requires employers to develop and implement a written policy concerning lactation rooms. The policy must be distributed to all employees upon hire. The policy must state that employees have a right to request a lactation room and the policy must identify the process employees may follow to request a lactation room. The bill requires that the process state how an employee may request a lactation room, it must state that the employer will respond to the request in no more than 5 days, it must provide for a procedure when two or more employees need to use the lactation room at the same time, it must provide for reasonable breaks for employees to express milk, and the policy must set forth that if the lactation room creates an undue hardship on the employer, that the employer will engage in a cooperative dialogue.

The bills are not yet effective as they are waiting for the Mayor’s signature. But, after the Mayor signs them, they will take effect 120 days later. Accordingly, employers should begin thinking about compliance sooner rather than later.

To talk with a New York City employment lawyer contact Famighetti & Weinick, PLLC at 631-352-0050. Our employment attorneys can help with workplace compliance matters, including compliance with the new lactation room laws, New York State’s new sexual harassment laws, and other workplace regulations.

Our New York employment lawyers are also experienced in representing aggrieved workers. Victims of workplace discrimination, including pregnancy discrimination and sex discrimination, can schedule a free confidential consultation by calling 631-352-0050. For more information about employment law matters, visit our website at http://linycemploymentlaw.com.

New York City Lactation Room Laws

Expansion of the New York State Human Rights Law’s Coverage

The New York State Human Rights Law is the primary source of state employment discrimination laws in New York. The HRL prevents many forms of discrimination in the workplace including discrimination based on an employees age, race, gender, national origin, sexual orientation, sex, religion, disability, or criminal conviction status. The law, however, generally applied to only employees. In other words, independent contractors, vendors, or others, may not have been protected from sexual harassment in a workplace if the individual was not an employee of that particular employer.

The 2018 changes to New York law include an amendment to the Human Rights Law so that subcontractors, vendors, consultants, and other service providers will be protected against sexual harassment.

Mandatory Training and Implementation of Policies

As of October 9, 2018, every employer in New York State, including employers in New York City, must implement a written sexual harassment policy. Among other things, the policy must: prohibit sexual harassment in accordance with New York law; provide examples of unlawful sexual harassment; provide information about remedies to victims; include a form to complain about sexual harassment; identify the procedure the employer uses to investigate sexual harassment complaints in a timely and confidential manner; and notify employees of the right to bring sexual harassment claims in court and administrative agencies; and state that retaliation is illegal.

New York State has issued a form sexual harassment policy which employers may use. Famighetti & Weinick PLLC, however, recommends that employers speak to an employment lawyer to draft or revise a comprehensive policy which covers all forms of discrimination which are illegal under federal, state, and local laws on Long Island.

In addition to the policy, employers must also train all employees on how to prevent sexual harassment. Again, employers may use their own training, but that training must comply with New York State law. The state has provided a model training for employers to use as well. The minimum requirements for the sexual harassment include: it must be interactive; it must explain what sexual harassment is in way which complies with the Department of Labor; it must discuss examples of unlawful sexual harassment; and it must discuss remedies available to victims and how can victims can bring complaints of sexual harassment.

Speak to a Long Island Employment Lawyer About Sexual Harassment Laws

The changes to New York Law concerning workplace sexual harassment are comprehensive. Employers should not take it upon themselves to determine their compliance with the law. A Long Island employment attorney can assist in drafting all the state required policies and forms and can train employees consistent with the state guidelines and laws.

If you have a question about the changes to the New York State laws concerning sexual harassment, speak to a Long Island employment lawyer at Famighetti & Weinick PLLC at 631-352-0050. On the web, we are available at http://linycemployment.com. We represent employers and employees so if you believe you are a victim of sexual harassment in the workplace, we can help!

NYS Sexual Harassment Law Update

According to SuperLawyers, the selection process uses a “patented” system including an evaluation of 12 indicators. Using this system, less than 5% of the lawyers in New York State are included on the SuperLawyers list.

The Rising Star star list selects lawyers using a similar system, looking at lawyers who are either under the age of 40 or who have been practicing for less than 10 years. Less than 2.5% of New York State lawyers are selected for the Rising Star list.

Famighetti adn Weinick will be published under the practice area Employment Litigation – Plaintiff.

Famighetti and Weinick’s selections will be published in the upcoming October edition of SuperLawyers Magazine. The list will also be published in a special supplement of the New York Times, also in October.

Famighetti & Weinick, PLLC is a Long Island employment law firm with offices in Melville, New York. Our Long Island employment lawyers represent workers in employment disputes including discrimination, retaliation, and unpaid wage and overtime matters. Famighetti and Weinick’s selection to the SuperLawyers list emphasizes the firm’s devotion to workers’ rights and recognizes the firm’s lawyers’ success in litigating employment law matters.

For further information about the firm, employment law, or Famighetti and Weinick’s inclusion on the SuperLawyer’s list contact us at 631-352-0050.

Famighetti & Weinick Listed in SuperLawyers magazine

New York City’s Temporary Schedule Change Law became effective on July 18, 2018, and requires most New York City employers to allow eligible employees to make up to two temporary schedule changes (or requests for unpaid time off) per year as long as the change is related to a “personal event.”

In addition to requesting time off, employees covered by the Law may also ask to work remotely, swap shifts, or adjust shifts in other ways that do not necessarily involve taking time off. Generally, “eligible employees” include New York City employees who work over 80 hours per year and who have worked for the employer for 120 days or more.

The Law’s “personal event” language, provides employees with significant leeway to request a schedule change. Some of the “personal events” explicitly mentioned in the new Law include: (1) caring for a child under the age of 18; (2) caring for a disabled individual that qualifies as a “care recipient,” as defined by the new Law; (3) attending a court proceeding to which the employee, a family member, or care recipient is a party; and (4) any other qualifying reason under New York City’s paid Safe and Sick Leave law.

This new Law also contains a retaliation provision. Employers cannot punish employees who decide to exercise their rights under this new Law and are prohibited from terminating, demoting, suspending, or negatively affecting an employee’s job in other ways. Otherwise, the employer would be engaging in unlawful retaliation and may be subjected to legal action.

Unlike some parts of New York City’s old Fair Workweek Law, the new Temporary Schedule Change Law applies to all industries and is not just limited to retail and fast food workers. However, it gets trickier when certain employees try to exercise their rights under the City’s new Law.

For instance, while unionized employees covered under a Collective Bargaining Agreement (“CBA”) are generally protected under the City’s new Law, the Law does contain an exemption. Unionized employees covered by a valid CBA are not protected if the employee’s CBA: (1) has a provision that waives the new Law’s schedule accommodation requirements and (2) addresses temporary work schedule changes.

Furthermore, there are other New York City employees that are entirely excluded from the new Law. These employees include government employees and most employees who work in the television and live entertainment industry.

A few days after the new Law took effect, the New York City Department of Consumer Affairs (“DCA”), the agency that enforces the Law, released a document intended to serve as guidance and to help both employers and employees better understand the new Law, its requirements, and its limitations.

In the Frequently Asked Questions (“FAQ”) document, the DCA makes it clear that this new Law cannot be waived. In other words, employers that are opposed to the new Law have to deal with it. Employers cannot force employees to sign anything that would limit or prevent an otherwise eligible employee from exercising his or her rights under the new Law.

Moreover, this guidance document lays out certain steps that both employees and employers alike are required to follow. For instance, an employer’s response to an employee’s temporary schedule change request must include: (1) whether the request was approved or denied; (2) the accommodation provided (if the request was granted) or the reason for the denial; (3) the total number of temporary schedule changes that the particular employee has requested; and (4) the total amount of days the employee has taken off from work due to previously approved temporary schedule changes.

Lastly, the guidance document includes two additional requirements that are important for employers. Specifically, employers are required to (1) hang up notices regarding the new Law in visible areas that are accessible to employees, and (2) maintain electronic records, for at least three years, showing their compliance with the new Law.

Notably, an employer’s failure to comply with the Laws record keeping requirement results in a favorable presumption for the employee, also known as a rebuttable presumption, and forces the employer to prove that they did not violate the law. Indeed, this burden may be difficult to meet.

Our info-graphs below can help you determine how the law may apply to you:

NYC temporary change law

NYC Temporary change law 2

In sum, while most workers in New York City can now breathe a sigh of relief if they need to temporarily change their work schedules or take some time off from work, employers are left with the headache of increased leave and schedule approval obligations. This law is certainly a win for eligible New York City workers, but it is important for these employees to understand the laws limits.

If you have questions about New York City’s Temporary Schedule Change Law or if you are unsure whether you are protected under this new Law, our New York City employment lawyers may be able to guide you. Call us at 631-352-0050 or visit our website at http://www.linycemploymentlaw.com to schedule a free consultation.

Today’s New York employment law blog was written by law clerk Thalia Olaya.

Before even getting to the question of damages, plaintiffs must always first prove liability. This means that an employment discrimination plaintiff must first prove that the employer in fact engaged in unlawful discrimination or retaliation. We often describe this step by analogizing it to baking. In a lawsuit, a plaintiff must prove certain elements. Elements are like ingredients. If, for example, we were baking a cake, we need, for simplicity purposes, four ingredients: (1) flour, (2) sugar, (3) butter, and (4) eggs. If we did not have one of these ingredients, we may make something resembling a cake, but it would not be a cake.

Similarly, in the world of employment discrimination, a plaintiff must prove four “elements” or “ingredients” to win the liability part of his or her lawsuit. In short, those elements are: (1) membership in a protected class (such as race, religion, disability, etc.), (2) being qualified for the job; (3) an adverse action (meaning something legally “bad” happened such as being fired); and (4) causation – a showing that the bad thing happened because the employee belongs to a protected class. If the plaintiff does not prove one of these elements, then the “cake” won’t reason, i.e. the plaintiff cannot prove the case and will not be entitled to any damages whatsoever.

Once a plaintiff proves his case by meeting each one of the elements, the plaintiff can prove damages. Victims of employment discrimination in New York can, generally, recover four different types of damages: (1) economic damages; (2) emotional damages; (3) punitive damages; and (4) attorneys’ fees and costs. Each of these damages are described below.

Economic damages include all out of pocket costs incurred by the discrimination victim because of the employee’s unlawful conduct. Examples include loss of pay, loss of pension or retirement payments, and health insurance costs. Victims are typically entitled to interest on awards of economic damages. The damages, however, typically are awarded only for back-pay which is damages calculated from the time of the discrimination until the time of the award. Courts are reluctant to award front pay, or future damages. In other words, a victim who is unlawfully terminated in 2016 and receives a favorable jury verdict in 2018 can receive back pay from 2016 to 2018, but usually not front pay from 2018 to some other point in the future. In addition, victims must try to mitigate damages by looking for new work.

Emotional damages are the hardest category of damages to quantify. But, emotional damages are generally considered either garden variety or more severe. Garden variety emotional damages fall on the lower end of the spectrum of awards and typically will not exceed $50,000. Garden variety damages may be awarded where a plaintiff does not have medical corroboration for her symptoms or where the plaintiff testifies about vague and general symptoms of emotional distress. Higher awards of $200,000 may be appropriate where a plaintiff testifies about significant emotional distress such as changes in eating and sleeping behavior, withdrawing from socializing, hair loss, and other extreme symptoms. If a medical professional testifies about those symptoms, the awards may exceed $200,000 and can reach into the millions, but only with evidence of the most extreme mental distress.

Punitive damages are designed to punish defendants who acted recklessly or wantonly. They are also used to deter others from acting in a similar manner. Punitive damages, if awarded, must be relative to the other damage awards. For instance, a court will not likely uphold a punitive damage award of $10,000,000 where the plaintiff was able to prove only $10,000 in other damages.

Prevailing plaintiffs in employment discrimination lawsuits are also able to recover attorneys fees and costs. At the conclusion of an employment discrimination lawsuit, the attorney can submit time records to the court and ask the judge to order the defendants to pay for the attorneys’ time on the case. Costs may be also be imposed against the employer, including the costs for filing the lawsuit and the costs for deposition transcripts.

The damages available to victims of discrimination can be confusing. Damages are highly fact specific and each case must be reviewed individually to determine the amount of each category of available damages. To determine how much your employment discrimination case may be worth, contact a Long Island employment lawyer at Famighetti & Weinick PLLC at 631-352-0050 or http://linycemploymentlaw.com.

Damages in an Employment Discrimination Lawsuit

The NCBA is an active bar association with more than 40 committees covering a wide array of practice areas and other services for both the public and membership. According to the association, it was founded in 1899 and has nearly 6,000 members. It’s building in Mineola, New York, known as “Domus,” provides a central point for attorneys in Nassau County to gather for networking opportunities, to learn from one another, and to provide services to Nassau County residents through programs such as the lawyer referral service and access to justice.

Of the many committees, the Labor and Employment Law committee considers itself one of the most active committees. The committee’s stated purpose is to review proposed employment law legislation and to analyze recent court decisions concerning employment law.

The committee regularly meets once each month, it typically hosts at least one well attended continuing legal education program per year, and it hosts a yearly recognition dinner to honor the achievements and contributions of an individual to the field of Labor and Employment law, particularly the individual’s contributions to the Long Island and Nassau County legal communities. At its monthly meetings, the committee hears presentations about topics relevant to labor and employment law. Presenters have included committee members, guests from other committees, representatives from state and federal employment agencies, and local judges.

Weinick has been involved with the Nassau County bar association for nearly a decade. Over the years, Weinick has published numerous articles with the association’s newspaper, Nassau Lawyer, he has volunteered with the association’s pro bono services day, he has participated in several continuing legal education classes hosted by the association, and he has spoken about employment law developments at the committee’s meetings. For the past two years, Weinick served as secretary of the Labor and Employment law committee.

Working with Chairperson Paul Millus, Weinick will share in responsibilities to hold monthly meetings, to facilitate the submission of articles to the Nassau Lawyer from committee members, and to encourage participation in association events from members and non-members.

On his appointment, Weinick stated, “I’m very proud of this accomplishment and I’m looking forward to contributing to the continued success and growth of the Labor and Employment Law committee.” Weinick added, “The Labor and Employment committee is very special to me as I’ve learned so much from fellow members and I’ve also established important professional and personal relationships with many other members.”

Matthew Weinick is a Long Island employment lawyer and partner with the employment law firm, Famighetti & Weinick PLLC. Located in Melville, New York, Weinick, his partner Peter J. Famighetti, and his law firm, represent employees across Long Island and New York State in workplace disputes. The firm handles matters including discrimination, retaliation, and improper payment of minimum wage and overtime. Weinick can be reached at 631-352-0050 and his full bio is available at https://www.linycemploymentlaw.com/matthew-weinick.html.

Weinick Named Vice-Chair of Labor and Employment law Committee

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.

Justice Kagan wrote the dissenting opinion in Janus, which was joined by Justices Ginsburg, Breyer, and Sotomayor. The dissent’s argument focused on two main concerns. First, Justice Kagan discussed the First Amendment and why the First Amendment does not prohibit the collection of agency fees. Second, Justice Kagan discussed the principle of stare decisis and why the majority improperly overturned Abood. Each argument is summarized below. The dissent begins by discussing the history of First Amendment principles. Justice Kagan found persuasive the fact that the Court has time and again held that employees do not shed their First Amendment rights simply by going to work for the government, but that when the government acts as an employer, it must be given wide latitude to regulate the workplace. The primary reason for this general rule is that governments must be able effectively and efficiently operate its workplace without having every employment rule turned unto a constitutional question.

Generally, employees complaining about workplace conditions or terms and conditions of employment, do not enjoy First Amendment protections. Instead, for the First Amendment to apply, employees must be speaking as citizen on a matter of public concern. Accordingly, Justice Kagan rejected the majority’s arguments about why the First Amendment applies and she argued that the agency fees fit squarely within the government’s lawful and constitutional regulation of its workplaces.

Next, Justice Kagan discussed the principle of stare decisis, a legal doctrine recognizing the importance of following precedent (prior U.S. Supreme Court decisions). The dissent notes that a strong factor weighing against overturning Abood is the heavy reliance that has been placed on the decision. The Court should not overrule itself when governments and people have come to rely on a rule of law. Indeed, this is a basic principle of stare decisis – relying on the stability of a rule of law. Justice Kagan noted that over twenty states that had already authorized union fees from non-union employees would now be forced to figure out a new way to structure its employee relations. The Janus decision also effectively destroys many collective bargaining agreements thereby forcing some employees to renegotiate contracts. In New York City alone, Justice Kagan wrote that 144 contracts with 97 public-sector unions will have to be renegotiated.

The dissent also notes that there was no indication from the lower courts that there was confusion or misunderstanding in how to apply the rules of Abood further suggesting that overturning it was not appropriate.

In sum, the dissenting Justices view the Janus case as one that “will have large-scale consequences.” As noted by the dissent, eliminating non-union member fee requirements will hurt unions financially, leaving unions unarmed to adequately serve as an employee’s representative.

If you have questions about the First Amendment, the Janus decision, or public or private sector unions, contact a Famighetti & Weinick PLLC Long Island labor lawyer at 631-352-0050.

Today’s Long Island employment law blog was written law clerk Thalia Olaya.

Union dues case decided

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.

Postmates appealed the decision to New York’s Appellate Division, Third Department where the case was heard by a panel of three judges. The Appellate Court noted the high standard of review which is applicable to appeals which come before the Court from administrative agencies, such as the Unemployment Appeal Board. The standard is that the Court must uphold the agency’s determination if it is supported by substantial evidence.

The Appellate Court also restated the law concerning whether an employer-employee relationship exists in New York, at least for purposes of unemployment insurance benefits. In New York, Court will look at whether the purported employer exercises control of the results of the work or the means used to obtain the results. But, an employer’s incidental control is not enough to establish an employer-employee relationship.

Turning to the facts of the Vega case, the Third Department determined that Postmates required only a minimal application process, requiring candidates download a form from its websites and provide only basic pedigree information. The Court noted that although Postmates performs a criminal background check and requires couriers to undergo a software orientation session, there is little supervision thereafter. The Court found persuasive the fact that couriers retain complete discretion as to whether they want to ever log into the Postmates’ system to obtain work and if they choose to work, they can work as much or as little as they want.

Further, the Court determined that while couriers were logged into the system indicating their availability to make deliveries, they remained free to work for anyone else, including competitors. Finally, the Court determined that the couriers decide which mode of transportation to use, which route to use, and they don’t wear a uniform or other identification.

On the other hand, the Court found some level of control, including that Postmates sets the fees and rates to be paid, tracks deliveries, and handles customer complaints, the Court ultimately was not persuaded that substantial evidence existed to support the conclusion that the couriers are employees.

Notably, Justice Lynch dissented and indicated he would have held that substantial evidence does exist to support an employer-employee relationship. Justice Lynch noted the criminal background check point, the orientation, and other requirements Postmates places on couriers.

In sum, the Vega decision shows the difficulties in determining whether workers are employees or independent contractors. The determination has important implications for minimum wage and overtime laws, workers compensation, and unemployment insurance benefits rules. If you have a question about how to classify a worker as an independent contractor or employee, speak to a Long Island employment lawyer today at 631-352-0050.

Is there an employer-employee relationship?

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.

Mark Janus worked for an agency of the State of Illinois. His unit is represented by a union, but he refused to join because he opposes the public policy positions the union takes. He represented in court that he would not pay union fees if he had a choice, but that he was required to pay about $535 per year. Accordingly, Janus joined a lawsuit, originally filed by the Governor, seeking a Court order that the Public Relations Act is unconstitutional.

Justice Alito wrote the majority opinion for the Court and framed the issue as one concerning the First Amendment. Justice Alito started his analysis by setting forth some basic First Amendment principles: freedom of speech includes the right to speak and the right not to speak and requiring individuals to support objectionable views violates the First Amendment. The Court discussed the constitutional concerns raised when the government silences speech and expressed its view that compelling speech raises similar and equally compelling concerns. The Court further determined that requiring individuals to financially support a union invokes First Amendment free speech concerns. In other words, because the law “substantially restricts” individual rights, employees have a First Amendment right to refuse to financially support a union.

But, just because an individual’s First Amendment rights may be impinged upon by a State law, it does mean that the law is unconstitutional. Rather, Courts must then perform a balancing test looking at the importance of the individual right and the manner and reason that the State enacted the law in question. Although the Court did not state whether a high level of scrutiny was required for the Janus law, it held that the law does not pass Constitutional muster under the less “exacting scrutiny” standard.

The majority opinion then looked back at previous decisions addressing the issue before the Court, most notably the decision in Abood. The Abood case held that the union fee requirements at issue in Janus, called “agency fees,” were constitutional. In Abood, the Supreme Court was persuaded that there was a compelling state interest in the fee arrangement because it preserved “labor peace” and prevented the “risk of free riders.” Justice Alito rejected the former as the evidence did not stand the test of time and the latter due to a lack of a compelling state interest.

The Court then turned to the new arguments raised in Janus for upholding agency fee laws. The union argued that public employees do not have First Amendment rights, at all. Justice Alito easily dispatched with this argument, and reiterated the long understood state of the law being that public employees enjoy First Amendment rights. Those rights, however, are not absolute and it is the exceptions to public employee First Amendment rights on which the dissent and Janus relied.

For the First Amendment to apply to public employees, the employee must be speaking as a citizen on a matter of public concern. Justice Alito rejected this argument holding that the line of cases which establish such a rule, do not apply to the facts of the Janus case. Justice Alito explained that these cases were different because the “citizen” cases apply to one employee’s speech as opposed to a “blanket requirement” for all employees. Janus involves the government compelling speech, instead of chilling speech, and the categories of speech which the cases look at are different.

In concluding the majority opinion, the Court looked at the factors it should consider in overturning a prior decision. Justice Alito relied heavily on the factor that a decision should be overturned when the “quality of its reasoning” was wrong. The Court also relied on its belief that Abood created an unworkable rule.

In sum, the Supreme Court ruled that “agency fee” arrangements are unconstitutional as a violation of the First Amendment. The Court explicitly held that “States and public-sector unions may no longer extract agency fees from nonconsenting employees.”

As noted by the Court, the decision may create immediate “transition costs,” but, in the Court’s view, the continued practice of collecting fees could not stand in the face of the First Amendment.

If you have questions about the First Amendment, the Janus decision, or public or private sector unions, speak to a Long Island labor lawyer at Famighetti & Weinick PLLC at 631-352-0050.

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Union dues case decided