The 3020a Process

In New York, most public school teachers enjoy the protections of tenure and the 3020a process, after serving a probationary period. While on probation, a teacher can generally be fired for any reason or no reason at all. A probationary teacher can even be fired for a mistaken reason, and without any due process.

Tenured teachers, however, cannot be fired absent a hearing. The hearing is required to be held pursuant to the Education Law Section 3020a, so for short hand, it’s typically called a 3020a hearing. As part of the 3020a process, teachers are entitled to a description of the charges they are facing and they are entitled to a hearing where the school district must prove the charges to a neutral hearing officer.

After hearing the evidence and the teacher’s defenses, the hearing officer will issue a decision. The decision typically involves findings of fact, then a determination about whether those facts establish misconduct.

The Part 83 Process

The 3020a process protects New York’s teachers’ jobs. Part 83 of the Education Department’s regulations protects teacher’s licenses. Like tenure which prevents a school district was terminating a teacher without due process, Part 83 is the procedure the Department of Education must follow if it wants to take away a teacher’s license. So, while 3020a may terminate a teacher’s job with one particular school district, it does not mean that the teacher couldn’t work for another school district (though, having been terminated via 3020a would that make it very difficult).

A license termination via Part 83 takes away a teacher’s ability to teach within the state. A termination via 3020a will not necessarily lead to a Part 83 proceeding. In fact, it’s not very common that a teacher would face both a 3020a and a Part 83. But it happens sometimes. Indeed, in some circumstances superintendents and school districts are required to report alleged teacher misconduct to the Department of Education for potential Part 83 proceedings. One such allegation would relate to child abuse.

A Part 83 is like a 3020a. The teacher is entitled to understand the charges being asserted and is entitled to a hearing with hearing officers who decide the case. At the hearing, the teacher can challenge the Department’s evidence, cross-examine witnesses, and present exonerating and/or mitigating evidence. A guilty determination as a result of a hearing does not necessarily lead to revocation of the teaching license. Sometimes, the Department can issue a license suspension, instead. But, under existing rules, licenses could not be suspended before the hearing, even temporarily.

Amendments for Interim Suspensions

In May 2025, Part 83 was amended to allow for the interim suspension of New York’s teachers’ licenses. Preliminarily, interim suspension will be allowed for only very specific situations. Interim suspensions are limited to circumstances concerning sex offenses or a boundary violation. What do these terms mean?

A sex offense is defined by the Penal Law. Section 130 broadly defines a range of sex offenses from touching another person in a sexual manner without consent to rape. A boundary violation fills in the gaps where the conduct may improper for a teacher to direct at a student, but may not rise to a criminal violation. Examples of boundary violations can include sexual contact, but expands to wider conduct also such as sexting and other sexualized communications, displaying or showing students pornography, or other personal communications which show an intent to enter into a romantic relationship.

When a school has facts sufficient to constitute a preponderance of the evidence (as defined by Part 83), the school may refer the teacher to the Department of Education. Under Rule 83.7, preponderance of the evidence means a conviction or order from a court, determinations from an arbitrator or hearing officer, statements from witnesses given under oath, admissions against interest, or other evidence of similar nature and weight.

With sufficient evidence, the Commissioner of Education may issue an interim suspension of the teacher’s license pending a hearing. To initiate the suspension proceedings, the Department must serve, by personal service, notice of the hearing and a verified petition on the teacher. The notice of hearing will set a time and place for oral arguments concerning the application for summary suspension. The Commissioner will designate a hearing officer from the list of hearing officers maintained to hear Part 83 proceedings.

The petition must include the basis for the application, including sworn statements from individuals with personal knowledge, or other exhibits, showing the teacher lacks moral character and that the public health, safety, or welfare imperatively requires emergency action.

Unlike other proceedings, the teacher has no right to discovery and the Department is not required to produce any other evidence or documents not enumerated in Rule 83.7.

The teacher is permitted to file an answer and sworn statements and exhibits with the hearing officer up to seven days before the oral argument date. But, the Commissioner can serve a response to teacher’s answer up to five days before the argument date.

Notably, to preserve a transcript of the oral argument hearing, the teacher must make a request that the transcript be taken.

The hearing officer is required to issue a report of conclusions and recommendation to the Commissioner who is then empowered to grant or deny the application for summary suspension. The decision must be based on a finding that the public health, safety, or welfare of the students or school community “imperatively” requires action. This decision must issue within seven days of the hearing officer’s recommendation.

If the Commissioner issues a summary suspension, the proceeding will continue under Part 83.3 and 83.4, the existing procedures to suspend or revoke a teacher’s license. A decision from that hearing must be made within 120 days. Teachers may also use the appeal process of 83.5, and if the decision is upheld, the teacher may appeal in state court.

The investigation and suspension are confidential until “all applicable statutes of limitation have expired.”

Employment Lawyers’ Thoughts on 83.7 Suspensions

There is no question that 83.7 addresses an important issue. School districts are obligated to take accusations of teachers’ sexual misconduct seriously. Whether 83.7 provides any additional safeguards though, is questionable. Districts are already able to reassign teachers out of a classroom based on such allegations. Some evidence which 83.7 requires to establish sufficient evidence for a summary suspension takes a long time to acquire. For instance a judicial determination of a sexual offense could take many months or even years.

Newsday has reported that a teachers’ union believes 83.7 strikes a good balance between protecting students and upholding due process rights of teachers. There’s no doubt that 83.7 provides some process, but without access to discovery or the right to cross-examine accusers, does 83.7 really sufficiently preserve the rights of teachers?

These are complicated issues, but the Board of Regents has already decided the outcome, regardless of F&W’s thoughts. On May 21, 2025, Rule 83.7 takes effect.

F&W has experience representing victims of sexual abuse, including students, and we have also defended teachers accused of misconduct. We remain available to help victims and workers. For more information, speak to one of our lawyers at (631) 352-0050 or (845) 669-0040. We also have more information available on our website at http://linycemploymentlaw.com.

In New York, public sector jobs are generally regulated by the civil service commission. The state operates a state-wide civil commission, but counties and towns also maintain local civil service commissions to regulate employment within those municipalities. County civil service commissions may also have authority over public sector jobs such as school and library districts.

Part of the civil service commission’s job is to ensure that candidates for civil positions meet eligibility requirements. Sometimes those requirements mean a candidate must have particular relevant job experience and sometimes it means that the candidate must hold a special license or certification. Other times, the position has a residency requirement, meaning the candidate must have residency in the town, county, village, or school district, where the job will be. Typically, for a residency requirement, the candidate must have held the necessary residency for the 12 months prior to the appointment.

In a recent case handled by civil service lawyers Famighetti & Weinick PLLC, the firm’s client had been employed by a Long Island school district for many years. Out of the blue, the county civil service commission issued a letter to the client indicating it determined that the client did not meet the residency requirements for his position at the time of his appointment, many years earlier. Accordingly, the commission voted to disqualify the client from his job. Put another way, the commission’s decision meant that the client would lose his job and be out of work.

Desperate, the client came to Famighetti & Weinick for help. The civil service rules provide for an appeals process, but it provides a very short window of opportunity — just 30 days. With time already elapsed, Famighetti & Weinick went right to work devising a strategy for the appeal. The firm developed a two pronged attack on the commission’s decision.

First, the firm argued that the commission’s decision was arbitrary and capricious for two reasons: (1) the commission’s use of the term residency was too strict and (2) the facts proved that the client maintained residency as required by the job posting and consistent with the proper definition of residency. The unusual fact of this client’s case was that the client had recently been relocated at the time of the job application because of a home foreclosure. Thus, he had used some different addresses around the time of application and appointment.

But, residency is a legal term of art. As interpreted by New York’s appellate courts, residency requires a showing of a “bodily presence as an inhabitant in a given place.” It’s quite different than being a domiciliary, which is a stricter term requiring an intention to remain domiciled.

To illustrate the example of bodily presence required for a residency requirement, in an appellate court case concerning a firefighter in Buffalo, the firefighter owned a home outside the City of Buffalo where his wife and children lived. He also had an apartment within the City. The City of Buffalo tried to disqualify the firefighter for failing to satisfy the residency requirement, but the appellate court determined that because the firefighter maintained an apartment in the city, he satisfied the residency requirement. If the City had a domiciliary requirement, the case might have come out different.

In Famighetti & Weinick’s case, the firm relied on this interpretation of the word residency and showed, through credit card bills and delivery invoices, that the client maintained bodily presence within the jurisdiction during the applicable time period.

Next, the firm argued the civil service commission’s decision was unlawful. Pursuant to New York Civil Service Law Section 50, civil service commissions can investigate background and qualifications of candidates after appointment, but not more than three years after appointment, unless the commission alleges the candidate had engaged in fraud. In the firm’s case, the commission’s decision was issued more than three years after the appointment, so the decision was unlawful unless it was based on the candidate’s fraud.

Here, the commission did not allege fraud, but to be sure the exception to the three year rule did not apply, the firm detailed the very high standard the commission must meet to prove fraud. Indeed, the commission was required to have clear and convincing evidence of “substantial fraud.” The firm then detailed how the commission could not possibly meet its burden because the overwhelming evidence showed that the client actually resided in the jurisdiction and no evidence of fraud existed.

Notably, the commission’s decision was not enforced pending the appeal. After some tense weeks of waiting, the firm finally received a decision reversing the disqualification. The firm won!

If you have questions about civil service residency requirements, civil service appeals, or other civil service questions, contact civil service lawyers Famighetti & Weinick PLLC. Our phone number is (631) 352-0050. We have more information available on our website: https://www.linycemploymentlaw.com/civil-service.html.

The following information is taken from the publicly available court orders issued in the case.

Persaud worked for the New York City Department of Finance (the DOF). He is of Guayanese national origin. In October 2020, a Guyanese newspaper published an article entitled “Gutter Work.” Boiled down to its essence, the article discussed the rise of oil jobs in Guyana and public debate about which workers in Guyana should have those jobs.

The newspaper shared the article on Facebook. A response to the post was generated from Persaud’s Facebook account, but Persaud alleged that his father, not he, posted the comment. The comment expressed a view about which workers should get the good oil jobs. Thus, as alleged by Persaud, he did not engage in any First Amendment activity, i.e. he did not engage in free speech activities.

After the post, the DOF allegedly received some complaints from the public about the post from Persaud’s account. This lead to investigations from two internal DOF agencies – the Department Advocate and the EEO. This, in turn, led to charges being brought against Persaud. The charges alleged that the Facebook comment violated the agency’s code of conduct and social media policy, and that Persaud did not participate in the investigation concerning the comment.

Ultimately, an administrative law judge held a hearing and upheld the charges. She recommended the penalty of termination, and Persaud was then terminated.

Two threshold issues immediately presented themselves in the case: (1) since Persaud did not say anything himself, but rather he alleged that his father made the speech, could Persaud maintain a First Amendment claim? (2) does the administrative law judge’s decision prohibit Persaud from bringing a lawsuit?

On the first question, in 2016, the U.S. Supreme Court issued a decision called Heffernan v. City of Peterson. The Heffernan case established “perceived” First Amendment cases. Basically, if a government actor believes that an individual has engaged in First Amendment speech, but the individual has not actually engaged in speech, then the individual could still have a First Amendment claim. Thus, under Heffernan, Persaud appeared to have a case of First Amendment retaliation.

But, did the ALJ’s decision bar a lawsuit? Because Persaud did not allege that he had a First Amendment claim in the course of the termination hearing, the ALJ did not have an opportunity to rule on the issue. So, the termination hearing should not bar a lawsuit.

Persaud tested these legal waters by filing his case in the Southern District of New York. Not surprisingly, the City immediately moved to dismiss the case arguing that (1) Persaud’s complaint did not show that the Defendants intended to punish him for the speech (lack of causation) and (2) that the ALJ’s decision barred the claims (legally, called collateral estoppel). Judge Vyskocil denied the motion, noting the Complaint had alleged sufficient facts to support the claims and that because Persaud did not allege First Amendment retaliation before the ALJ, his claims were not barred.

The case continued and the parties exchanged discovery and took depositions. At the end of discovery, the City against asked the Court to dismiss the case. Again, the City argued, among other things, that Persaud did not show that the Defendants had the requisite intent (called causation) and that, regardless, its interest in preserving a harmonious work environment outweighed the First Amendment value of the speech, and the Facebook post risked disrupting that harmony. Accordingly, the City argued had a right to terminate Persaud.

In a detailed, thoughtful, and lengthy decision, Judge Submaranian rejected all of the City’s arguments. First, as pointed out by F&W, the charges issued against Persaud recited the entirety of the Facebook post. When that happens, appellate courts rule that a plaintiff has produced direct evidence of retaliation. Judge Submaranian accepted the argument and held that Persaud did not have to produce any further evidence of retaliation (causation), even though he had done so in briefing.

Next, Defendants argued that they would have fired Persaud, even in the absence of the First Amendment speech. The Court resoundingly rejected this argument, as well, finding the City’s evidence in support to be “not exactly show-stopping,” consisting primarily of their own statements.

Finally, the Defendants argued that their interest in maintaining harmony between co-workers outweighed the First Amendment importance of the speech. Again, Judge Submaranian rejected the argument without reaching the question of the speech’s importance. Instead, he determined that the City had not shown, beyond dispute, that it had any interest in regulating the speech.

As an aside, Judge Submaranian’s decision also went into great detail about another tricky legal issue. There is no question that individual employees of a city or municipality may be held liable for constitutional violations. But, cities and other municipalities are not automatically liable for those individuals’ violations.

Instead, plaintiffs must generally show that a policy or custom of the city caused the constitutional violation (called Monell liability, after the Supreme Court case setting this standard). The intricacies of this legal quirk are beyond the scope of this blog, but Judge Submaranian detailed the development of the law in this area and ultimately held that because the individual defendants in Persaud’s case relied on the City’s social media policy to terminate Persaud, then the City could be liable.

In sum, F&W has defeated each of the City’s arguments made across two motions, and which were considered by two different judges. This unusual and challenging case survived all the City’s attempts to dismiss it. The case is now slated to go to trial before the fall.

If you have questions about First Amendment retaliation, based on perceived or actual First Amendment activity, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our office phone number is (631) 352-0050.

Thus, for an individual to have a lawsuit under the First Amendment for a violation of free speech, the individual must first be able to prove “state action,” i.e. that the government, and not a private individual, caused the deprivation of rights.

Usually, this distinction is not difficult. Typically, its apparent whether the government is restricting speech or whether a private individual is restricting speech. On March 18, 2024, however, the Supreme Court issued a decision in a case where the distinction was not easy to determine. Today’s Long Island employment law blog discusses the decision issued in Lindke v. Freed.

Lindke v. Freed presented the question of whether a government employee who maintains a personal Facebook page, is a state actor when the employee blocks particular individuals from his Facebook page.

In Lindke, the defendant, Freed, created a Facebook account in 2008, while in college, and set his privacy so that only friends could view his page. His “friends” grew over the years, eventually exceeding the 5,000 friend limit imposed by Facebook. Freed then converted his page to a public page, allowing anyone with an account to view his page. This, in turn, required that Freed alter his account type and he chose to categorize himself as a public figure.

In 2014, Freed became the city manager for Port Huron, Michigan. Freed added his work information to his Facebook profile, including, among other things, his title and email address. As described by the Court, Freed posted on his Facebook page “prolifically”, adding pictures of his daughter, bible verses, and pictures of home improvement projects.

But, Freed also posted information about his job. For example, he posted city communications about financial reports, and new city services. Freed’s page readers would sometimes interact with his posts, offering typical Facebook comments such as “good job.” Other times, readers would ask Freed specific questions about city services or ordinances, such as regulations concerning property owners keeping chickens. Freed would reply to many of the comments and questions, but occasionally, Freed would delete comments he considered derogatory or stupid.

During the pandemic, Freed continued posting on Facebook, typically about how his family was managing through it. He also posted more specific COVID-19 information such as case counts and hospitalization. Freed also posted some city specific information, including city press releases and a description of the city’s hiring freeze.

The plaintiff, Lindke, was dissatisfied with the city’s handling of the pandemic. He visited Freed’s Facebook page and expressed this dissatisfaction with comments describing the city’s response as, for example, “abysmal”. At first, Freed deleted Lindke’s comments, but later, Freed blocked Lindke entirely from his Facebook page. This resulted in Lindke suing Freed for violating the First Amendment, claiming that Freed’s Facebook page was a public forum.

The trial court dismissed Lindke’s lawsuit and the appellate court affirmed the dismissal. The basis of the dismissal was that Lindke was not acting in his official capacity as a state official. Without state action, a First Amendment case cannot be maintained.

Things get more complex here. The Supreme Court took the case because different jurisdictions across the country disagreed on which legal test should be used to determine whether an individual is a state actor or whether the individual is acting as a private citizen. In the Lindke case, the Supreme Court set the standard for all courts in the country.

The Constitution does not establish a private right action for a First Amendment violations. In plain English, this means that individuals cannot sue the government for violating their First Amendment rights. Rather, to enable such lawsuits, Congress passed a statute, codified at 42 U.S.C. § 1983 (commonly referred to as Section 1983). Section 1983 allows individuals to sue the government when any person acting under color of law deprives a person of a federal constitutional or statutory right.

In Section 1983 cases, there is rarely a question about whether an individual is acting under color of law. Indeed, courts and litigants often gloss over this question in legal arguments about the merits of a Section 1983 case. Individuals plainly act under color of law when acting in official capacities as police officers (in a police misconduct case), public school officials, or prison officials. Individuals are plainly not acting under color of law when they are acting as a parent in silencing a child or as a neighbor in a noise dispute.

In Lindke, the issue was murkier. Freed did not relinquish his First Amendment rights when became city manager. He was able to maintain a private life, and to convey information he may have learned by virtue of his government employment. But, this does not mean that Freed did not act in an official capacity by blocking by Linkde.

To determine whether a public employee’s social media activity is state action, the Supreme Court set a two part test. First, the employee must have actual authority to speak on behalf of the government. Second, the employee must have purported to use that authority when speaking on social media.

The crux of the Lindke decision seems to be the Supreme Court’s recognition that government employees should be able to share information related to their jobs without fear that their social media activity could be construed as state action, exposing them to First Amendment liability. Instead of blanket immunity, the Supreme Court established a reasonable test to determine whether social media activity is state action or private action.

Notably, the Supreme Court’s decision suggests some best practices which could limit liability and clearly delineate private action from state action. For instance, government workers who identify their job title on social media should clearly designate their personal Facebook account as a personal account, unrelated to the government. Such officials should not use “mixed use” accounts, by which they make official and personal comments under the same account. Officials who are indeed authorized to speak on behalf a government, should identify one Facebook account as the official account, and another as the personal account.

Ultimately, Lindke’s case was returned to the trial court, so that it could determine the outcome in accordance with the test set forth by the Supreme Court. A final note, the Lindke decision was a unanimous decision of the Court.

Today’s blog is informational only and should not be accepted as legal advice. For advice about particular situations, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050.

Can Public Employees Unintentionally Convert Their Private Facebook Account Into a Public Forum Subject to the First Amendment?

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.

As alleged in the charge, the client, a male, had volunteered with a Nassau County fire department for many years. His wife and son were also members of the fire department. After a non line of duty injury, the firefighter resigned from the fire department.

The fire department ladies auxiliary is a sub-unit of the fire department. According to its by-laws, mothers, daughters, and spouses of firefighters can join the ladies auxiliary. The unit provides support to the fire department.

After resigning from the fire department, F&W’s client sought to apply for membership with the ladies auxiliary unit. The client made several requests for an application, but received no response. Eventually, the client was able to obtain an application. After completing the application, the Ladies Auxiliary asked the client to attend a general meeting so they could vote on his application. At the meeting, members asked the male applicant if he would have a problem wearing a skirt, which was part of the uniform. The vote ended in a tie.

Months later, the Ladies Auxiliary held another vote. This time, the vote resulted in a denial of the client’s application. In other words, the Ladies Auxiliary denied the male applicant’s membership. As alleged, this application was the only application denied in fifteen years.

After receiving the charge of discrimination from the NYSDHR, the fire department and Ladies Auxiliary made several legal arguments which they contended required that the case be dismissed. First, the fire department argued that the ladies auxiliary is a completely separate and distinct entity from the fire department. Based on this separation, the fire department argued it cannot be held liable.

Next, the fire department argued that Ladies Auxiliary members are not compensated, so the members are not employees. Because they are not employees, they are not protected by the employment laws which F&W alleged the Ladies Auxiliary had violated.

Finally, the Ladies Auxiliary argued that the vote was based on legitimate, non-discriminatory reasons.

F&W filed a rebuttal with the NYSDHR, arguing against each of the fire department’s and the ladies auxiliary’s arguments. Concerning the separate entity argument, F&W noted that the very same fire department had, in a previous matter for the NYSDHR, told the NYSDHR that the ladies auxiliary is indeed a sub-unit of the fire department. Thus, it could not argue in this case, that they are different.

Further, F&W pointed out that ladies auxiliary and fire department’s regulations are intertwined and show a high level of cooperation with one another. Moreover, the leadership of the ladies auxiliary is listed on the fire department’s website, showing their relationship.

On the question of whether the ladies auxiliary is covered by the Human Rights Law, F&W noted that law specifically applies to volunteer fire companies. Since the ladies auxiliary is a fire company, then the anti-discrimination laws apply to it.

Finally, F&W showed the circumstantial evidence of discrimination, including that the client was in all ways qualified to be a member, no non-female had ever applied for membership with the ladies auxiliary, his membership was the only one denied, and that members made sex-based comments at the membership meeting.

The NYSDHR Regional Director reviewed the arguments and determined the investigation supported that issues of fact exist concerning each argument. Accordingly, the Regional Director made a determination of Probable Cause. The case will be assigned to an administrative law judge who will hold a public hearing. A public hearing at the NYSDHR is akin to a trial. The judge will hear witnesses give sworn testimony and review evidence offered. Then, the judge will determine whether the Ladies Auxiliary and/or Fire Department are liable for sex discrimination. If so, the judge may also make an award of damages.

Famighetti & Weinick PLLC is a law firm experienced in representing volunteer firefighters on Long Island and in New York. The firm has represented fire department members from matters including 209-l hearings, First Amendment free speech issues, religious discrimination, and due process violations. To speak to an attorney experienced in handling volunteer fire department lawsuits, contact Famighetti & Weinick PLLC at (631) 352-0050. More information is available on our website at http://linycemploymentlaw.com.

Discrimination Case Against Volunteer Fire Department and Ladies Auxiliary to Proceed to Hearing Before Judge

Federal Judge Blocks State Health Care Worker Vaccine Mandate

On August 26, 2021, New York State’s Department of Health issued a rule that requires that healthcare workers in the state get a Covid-19 vaccine. Workers in hospitals and nursing homes must receive a first dose by September 27, 2021 and others must receive a first dose by October 7.

Though some vaccine mandate requirements allow for religious exemptions, this DOH rule does not provide for any religious exemption. Accordingly, a group of medical professionals sued the state seeking an order that stops the law from taking effect.

The plaintiffs argued that the state law violates the First and Fourteenth Amendments to the United States Constitution because it requires health care employers to revoke religious exemptions from Covid-19 vaccination mandates. On September 14, 2021, United States District Judge David N. Hurd granted the plaintiffs’ motion for a temporary restraining order.

There are several important caveats to the order. First, the order is merely a preliminary order which was issued without the judge having heard from the state. In other words, the judge has only heard one side of the argument. As discussed below, there is reason to believe that the vaccine mandate will ultimately be found to be constitutional.

Which leads to the second point. As a preliminary order, it means that the judge has not yet decided whether the plaintiffs are correct in arguing that the mandate is unconstitutional. Rather, the judge has only determined that there are enough reasons to delay implementation of the law, while he decides whether the law is constitutional or not.

Notably, as no requirement takes effect until September 27, the order does not practically take effect until that date. Further, the state must respond to the plaintiffs’ arguments before September 22, 2021 and then the parties must appear on September 28. Thus, it is possible that after hearing the state’s response, the judge may rescind or alter the order.

State Judge Blocks New York City Vaccine Mandate for City DOE Workers

New York City has also issued a Covid-19 mandate, requiring that New York City Department of Education workers be vaccinated or be tested weekly for Covid-19. Like the state rule, the City rule requires that by September 27, workers must provide proof of an initial first dose of a vaccine, proof of full vaccination, or proof of a single dose vaccine.

City unions filed a special proceeding, i.e. Article 78 proceeding, challenging the law. The unions argued that the rule is arbitrary and capricious and unconstitutional. They asked the court to similarly implement a temporary restraining order to stop the rule from taking effect.

On September 14, 2021, State Supreme Court Justice Laurence L. Love issued an order stopping the law from taking effect, pending a further court hearing on the matter. As is the case with the federal order, Justice Love’s order is only an initial preliminary order. The order does not mean that the court agrees that the rule is unlawful, it means only that the court believes the circumstances warrant the temporary stoppage of the law taking effect, so that the court can fully consider the parties’ legal positions.

Indeed, the order provides no discussion of the legal issues presented by the case and the court has not yet considered any arguments from the City about why the rule might be constitutional.

Predictions About the Ultimate Outcome of the Cases Challenging the Constitutionality of New York City and New York State Vaccine Mandates

We’ve predicted before that most state (and city) implemented vaccine mandates will be constitutional. Our prediction is based on a 1905 Supreme Court case which determined that state’s requirement that all citizens be vaccinated against smallpox does not violate the constitution. Though the current Supreme Court has offered some push back on that decision, lower courts across the country have continued to rely on the case as binding legal precedent.

A distinguishing feature between the 1905 case and, at least, the New York State rule, is the state rule explicitly does not allow for religious exemptions. Courts have upheld vaccine mandates in other states, based on the 1905 case and based on those rules’ allowance for a religious exemption.

But, a New York appellate court has already considered the question of whether a vaccine requirement which does not allow for a religious exemption is constitutional. Earlier this year, in March 2021, the Third Department reviewed a challenge to a New York law which required mandatory measles vaccines for public school children. Initially, the law had an exemption for religious reasons, but the legislature later repealed that part, meaning no religious exemption was allowed.

In that case, the court reviewed several constitutional challenges and determined that the requirement to vaccinate with the lack of a religious exemption was constitutional. Though the federal and state courts reviewing the current state and city Covid-19 vaccine mandates are not bound by this decision, principles of law suggest that the reasoning used by the state court, should be applied by the federal court.

Additionally, the City law provides a path for those employees who do not want the vaccine, to wit, regular testing. This is another reason to suspect the city rule will be upheld.

In sum, two courts in New York, one federal and one state, have temporarily suspended a New York State and City vaccine mandate from going into effect. Because neither case has yet heard the argument from the state and city, and because the orders are very preliminarily orders, this does not mean that the laws won’t eventually take effect. In fact, current legal precedents suggest that the laws will ultimately be found to be constitutional. However, no two legal scenarios are ever completely identical and the courts here have plenty of room to find reason to strike down the State and City laws as unconstitutional.

We’ll be following the development of these cases and we encourage readers to follow our social media to stay update on our blogs about these Covid-19 vaccine mandates. The constitutional issues here are incredibly complex and this blog should not be accepted as a detailed analysis of those legal issues. The blog should be used for informational purposes only, and not as legal advice.

For individual concerns about vaccine mandates, contact one of our employment lawyers at 631-352-0050.

Covid-19 Vaccine Mandates Blocked

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

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

F&W and co-counsel appealed the decision to the Second Circuit Court of Appeals, New York’s federal appellate court. On appeal, the firm argued, among other things, that (1) cases from the Second Circuit since the 1984 decision show why the case was improperly decided and (2) other appellate jurisdictions allow these types of claims to proceed, so the court should follow the lead of these other jurisdictions. Weinick orally argued the case before a three judge panel of the appellate court.

In a brief decision issued just weeks later, the court ruled that the 1984 case remained the law of the jurisdiction and barred the former officers’ lawsuit. The court affirmed the trial court’s decision to dismiss the case.

On April 2, 2021, Weinick, as counsel of record, and his co-counsel, filed a Petition for Writ of Certiorari with the United States Supreme Court. Appeals to the Supreme Court are not automatic. Rather, the court must decide which appeals to hear and which to deny. A Petition for Writ of Certiorari is the procedure used to ask the court to take up the case.

In this Petition, the employment lawyers argued that the Second Circuit’s decision conflicts with the law of the eight other jurisdictions in the country. The Petition showed how eight other appellate jurisdictions either outright allow, or would allow under the proper circumstances, a due process case to proceed based on a claim of a coerced resignation, such as in this case.

Further, the Petition discussed why a rule allowing such a claim to proceed is correct, and why the Second Circuit’s adherence to a rule which prohibits such claims is wrong.

The City of New York will have an opportunity to respond to the Petition. Then, the Supreme Court justices will decide whether the Petition should be granted. If granted, it’s not the end of the process. It means only that the court has decided to take up the case. Then, the parties will submit more legal briefing to the court and then appear for oral argument to answer the justice’s questions about the case.

If you have questions about due process, the Supreme Court, or a Petition for Writ of Certiorari, contact a Long Island employment lawyer at 631-352-0050.

Employment Lawyers Ask Supreme Court to Review Due Process Case

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

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

These initial arguments could have proved fatal to the professor’s case. If the arbitrator ruled in favor of the college, the professor’s case would have been dismissed without the arbitrator ever hearing the merits of the case.

To resolve these initial questions, the arbitrator scheduled a hearing. Famighetti appeared at the hearing, technically representing the professor’s union, but in effect representing the interests of the professor. During the hearing, Famighetti presented evidence, and took the direct and cross examinations of witnesses.

On February 5, 2021, the arbitrator issued a decision ruling in favor of the professor and against the college, on both issues. On the procedural arbitrability question, the arbitrator determined that the issue turns on when the professor was actually harmed. The arbitrator held that the professor was harmed within 90 days of when he filed his grievance, as required by his contract. Accordingly, the college’s argument concerning procedural arbitrability did not have merit and the college’s application to dismiss the grievance on this point was dismissed.

On the substantive arbitrability question, the arbitrator held that the issue concerns a point of law called collateral estoppel. Collateral estoppel means that a party cannot re-litigate an issue which has already been decided in another proceeding. In ruling on this argument, the arbitrator determined that the professor’s issues raised in his grievance were not decided in a previous matter. The arbitrator determined that the professor challenged the results of a second election for department chair. The previous grievance filed by another candidate challenged was whether the department was required to hold a meeting concerning the dispute about the election. Thus, the issues were not identical and the substantive arbitrability argument was rejected.

In sum, Famighetti defeated an employer’s attempt to have his client’s arbitration dismissed. Famighetti presented evidence at a hearing, then submitted written arguments detailing the reasons that the college’s bases for dismissal were improper. Ultimately, the neutral arbitrator agreed with Famighetti and ruled in favor of his client, the employee, who will now have his “day in court.” Next, the case will be scheduled for further hearing dates so the arbitrator can rule on the merits of the case.

If you have questions about arbitration or union grievances, contact a Long Island employment lawyer at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.

Firm Wins Arbitration Ruling, Case to Proceed on the Merits

The foregoing is taken from the Court’s decision.

Irving had been a domestic partner of a District employee. Though they were not married, they considered themselves life partners. The employee received health insurance benefits from the District. The employee added Irving to his plan based on his understanding that the District participated in the New York State Health Insurance Program’s domestic partner coverage.

In 2005, the employee passed away from illness. Upon his death, Irving’s health insurance coverage converted to a survivor’s benefit. She relied on and used the insurance for the next 14 years without incident, until the District notified her that it was revoking the insurance in the spring of 2019.

Leading the case, F&W partner Matt Weinick filed an Article 78 proceeding in Suffolk County Supreme Court. An Article 78 is a special proceeding used to challenge the decision of a body, such as the municipality’s decision here. Article 78s are notoriously difficult to win because of their remarkably high standard, requiring petitioners to show that the decision at issue is arbitrary and capricious.

In Court, Weinick made two key arguments. First, Weinick showed that the District had in fact enrolled in the domestic partner program. Once it did so, it could not unilaterally revoke the insurance coverage of a survivor enrollee, such as Irving. Second, Weinick showed that another domestic partner coverage situation was not treated similarly as was Irving. Indeed, the District specifically voted to retain the coverage for this other domestic partner. Weinick argued this disparate treatment showed the District treated Irving in an arbitrary and capricious manner.

In response the District argued primarily that it never lawfully adopted the domestic partner coverage option for its employees. It argued that it could not find any record of the District passing a resolution adopting the coverage, so without such a resolution, the coverage could not legally be applied. But, in further Court filings and a Court conference to discuss the issue, Weinick showed that the District submitted at least three different forms to the Civil Service Commission confirming its participation in the domestic partner program.

Justice Quinlan showed little patience for the District’s arguments. The Judge wrote plainly that, “the District does not even attempt to offer a rational basis for its determination to rescind petitioner’s health insurance benefits.” The Court relied on the three forms the District submitted to the State confirmed its participation in the program as evidence that the District indeed participated in the program.

Moreover, Justice Quinlan was persuaded of the arbitrary and capricious treatment of Irving, as compared to the other domestic partner who retained health insurance coverage. The Court found “no explanation was given for this inconsistency.” In sum, the Court found that “the District’s unilateral decision to terminate petitioner’s health insurance benefits was arbitrary and capricious.”

In addition, the Court determined that revoking the insurance coverage, after Irving enjoyed its uninterrupted use for more than twenty years, would cause a manifest injustice. Invoking the doctrine of estoppel, the Court held that it would be inequitable to terminate Irving’s health insurance, even if it were originally provided as a mistake. Thus, the Court ordered that the District is “enjoined from terminating petitioner’s health care benefits and coverage.”

The decision is a wonderful victory for the firm’s client and we’re so proud to share this story.

If you have questions about Article 78 proceedings or arbitrary and capricious conduct, contact a Long Island employment lawyer at Famighetti & Weinick, PLLC. Our employment attorneys are available by telephone at 631-352-0050.

Article 78 Win Results in Client Keeping Health Insurance

Sometimes, the decision can be easier for employees. Employees who are at-will or in probationary assignments which can be terminated for any reason, have no job protections. Thus, when an employer delivers the resign or be fired ultimatum, it truly is a threat that the employee will be fired, and the employer may genuinely be offering the employee a benefit of leaving without the scar of a termination on the employee’s record.

Other times, employees enjoy job protections and cannot be fired without a hearing or some level of process. This is particularly true with civil service employees in New York. It is quite common for municipal employers to offer permanent civil service employees the option of resigning in lieu of a termination hearing. This provides the employee the benefit of leaving without a record of termination (an important benefit for civil service workers) and gives the employer the benefit of certainty of separation. Indeed, when a termination proceeding proceeds in good faith with a neutral decision maker, the outcome of the hearing is not foreseeable for either party.

In certain circumstances, however, the decision of a neutral hearing officer is merely a recommendation. Once the employer fulfills its obligation to the employee of providing a hearing, the employer retains the ultimate decision of whether to fire the employee, regardless of the outcome of the hearing. In these situations, the employee’s decision to accept an offer of resignation verse taking chances at a hearing, becomes blurrier because the hearing looks like a sham, with the outcome seeming to be certain termination.

In still other situations, the employer outright tells the employee to resign because the outcome of the hearing will be certain termination. In other words, the employee’s termination is pre-ordained and the employee has no real decision to make other than resignation. When this happens, does the employer’s ultimatum constitute a coerced resignation or constructive discharge? In other words, is the ultimatum really a termination, even though the employee resigned?

On March 10, 2020, the Second Circuit Court of Appeals answered that question. Today’s Long Island employment law blog discusses the decision.

In Green v. Town of East Haven, the employee worked for a local police department. In sum, the employee was caught “red handed” with property which did not belong to her. In a tote bag, the employee placed a package of Pillsbury buttermilk biscuit dough she found in the office refrigerator and also a wire basket which belonged to the office. She alleged that her intent was to cook the biscuits for her co-workers, since she noticed the package remained unused in the refrigerator for a while and the office did not have an oven. Further, she alleged she was borrowing the basket for a party, and that it was common practice for workers to borrow such items for personal use, but then bring them back.

The employer did not care and took steps to proceed towards a hearing to determine her guilt and proper penalty. Before the hearing, the employee’s union representative advised her to resign, after a meeting with department officials, including the chief of police. The employee testified that the union representative told her that the chief said that if she didn’t resign, she would almost certainly lose at the hearing. Accordingly, she resigned, but later sued, alleging she was forced to resign and that the actions taken against her, were taken because of her age, thereby constituting unlawful age discrimination in violation of the ADEA.

The trial court dismissed the case at summary judgment. The court ruled that the employee’s resignation was voluntary, so she could not establish that the department took an adverse employment action against her, a necessary element of her age discrimination claim.

On appeal, the Second Circuit disagreed and reversed. The Circuit held a constructive discharge sufficient to establish an adverse action can be shown when the employee established evidence that as a whole, shows a reasonable person in the employee’s shoes would have felt compelled to resign.

On the facts of the Green case, the Second Circuit further determined that the employee’s case showed questions of fact which require resolution by a jury. Specifically, in Green’s case, a jury had to decide whether she chose to resign “on her own,” or whether she felt compelled to resign to avoid termination. Indeed, the Second Circuit thought there to be persuasive evidence that the employee had a reasonable belief that her firing was inevitable and the hearing would “almost certainly” result in her termination.

In sum, the Second Circuit believed the trial court improvidently dismissed the case and committed both legal error and an error in interpreting the evidence.

The circumstances in Green are not unfamiliar to the employment lawyers at Famighetti & Weinick PLLC. We regularly counsel employees who are similarly faced with an ultimatum to quit or be fired. If you have questions about similar circumstances, the decision in the Green case, or about coerced resignations or constructive discharges, contact a Long Island employment lawyer at 631-352-0050.

Resignation or termination ultimatums

Public employees are employees who work for the state, city, town, or local government. Public employees can also be employed by quasi-government agencies or public benefit corporations, such as the MTA.

In New York, many public employees are entitled to job protections. These employees cannot be fired without cause and must be provided a hearing to determine whether cause exists. Further, the constitution requires that employees who enjoy these protections, must also be provided with a notice of charges and an opportunity to be heard on the charges, before a termination is made effective. Whether public employees are entitled to job protections can be a fact specific inquiry, dependent on whether the employee is subject to a collective bargaining agreement, the civil service title, the type of civil service appointment, and the employee’s job responsibilities and reporting hierarchy.

In Famighetti’s case, the client was appointed to a probationary civil service position, after taking a civil service examination. After the client successfully completed the probationary period, the client became a permanent employee, subject to the protections of Civil Service Law 75 and the constitution’s Fourteenth Amendment guarantees of due process. Civil Service Law 75 requires that employees be given charges and a hearing before the employer can terminate the employee. In violation of these laws, the client’s employer fired the employee without providing him a hearing or advising him of charges.

Based on these allegations, the firm sent to the employer a letter with notice of intent to sue. Famighetti set forth the forgoing facts and recited the applicable laws and legal principles entitling the client to relief. Specifically, Famighetti showed how the employer was required to give notice of charges and hold a hearing, that it failed to do so, and that these failures constituted violations of Civil Service Law 75 and the Fourteenth Amendment of the United States Constitution.

Perhaps realizing its position was indefensible, the employer quickly acquiesced to Famighetti’s settlement demand. Included as part of the settlement terms was conversion of the client’s unlawful termination into a voluntary resignation, back pay, severance pay, payment of unused leave time, and attorneys’ fees and costs.

The case was settled within months and the terms are highly favorable to the employee. The results showcase how the firm uses its knowledge of employment laws to zealously advocate for its clients.

If you have questions about public employment, civil service laws and protections, due process, or disciplinary hearings, contact a Long Island employment lawyer. Our phone number is 631-352-0050. More information about the firm is available online at http://linycemploymentlaw.com.

Employment case settled

The Mount Lemmon Fire District is a municipal fire department in Arizona. Purportedly because of a budget shortfall, the District laid off two employees, John Guido and Dennis Ranking, ages 46 and 54, respectively. The firefighters sued alleging their terminations violated the ADEA because the decisions were based on their age. The District moved to dismiss arguing that the ADEA only covers employers who have more than 20 employees, which the District did not. Ultimately, SCOTUS was asked to decide the issue.

Writing for the court, Justice Ginsburg noted that the ADEA was enacted to prevent “arbitrary age discrimination” in employment. She noted further that Congress initially excluded governmental agencies and required that employers employ a threshold number of employees for the law to apply to them. But, in 1974, Congress amended the ADEA to specifically define employer as including “a State or political subdivision of a State.”

The issue in Mount Lemmon is whether the amendment means that all government entities are covered by the ADEA or that only government entities which employ more than 20 employees are covered by the ADEA. Since the federal courts have decided the issue differently, the Supreme Court agreed to take the case to resolve the conflict.

The words SCOTUS was required to interpret were “employer . . . also means . . . a State or political subdivision of a State” and whether “also means” added a new category of employers to the ADEA’s coverage. The court noted that “also means,” enhances language and acts to “additively” create a new category of employer. The court further noted that “also means” is used across many federal statutes and is used to add to a meaning, rather than to clarify a meaning.

The court rejected the Fire District’s argument that the court’s interpretation would mean that the ADEA would have broader coverage than Title VII (the anti-discrimination statute) and that Congress did not intend such a result. In fact, the court said its conclusion was reached precisely because Congress used different language in the ADEA than in Title VII. Further, the ADEA’s language mirrored the FLSA’s language which was intended to have broad application to even small employers.

Finally, the Fire District argued that the court’s decision would impact public services, but SCOTUS rejected this argument as well. Justice Ginsburg noted that many states regulate age discrimination for municipal employers of any size and that the court is not aware of any disruption in service because of those regulations.

In sum, the Supreme Court held that the plain language of the ADEA means that regardless of size, state and local governments are covered by the ADEA.

The Mount Lemmon decision was one of the first issued decisions concerning employment law decided under the new composition of the court, in other words, since Justice Kavanaugh’s confirmation. Thus, we thought it prudent to comment on what, if anything, this decision teaches us about how the court will handle employment law cases moving forward. In brief, “the jury is out.” Notably, Justice Kavanaugh did not participate in the decision as the case was argued before he was confirmed. But, the court nonetheless decided the case unanimously by the eight judges who heard the case. To those who believe the court will intentionally find ways to rule against employee and individual rights, the decision is confirmation that while there will certainly be legal issues which reasonable minds may disagree about, the justices of the Supreme Court are committed to making decisions based on the law. It is encouraging to see this court issue a unanimous employee-side decision.

If you have questions about age discrimination, the ADEA, the Mount Lemmon decision, or employment law issues under the new Supreme Court, contact a Long Island employment lawyer at 631-352-0050 or visit us on the internet at http://linycemploymentlaw.com. In addition to our experience in employment discrimination matters, we can help New York and long island firefighters in matters including disciplinary 209-l proceedings.

Are small fire departments covered by the ADEA?

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

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

First Amendment Free Speech

The First Amendment prohibits the government from passing laws which restrict speech based on the content of the speech. For example, a law which generally allows picketing unless the picketing is aimed at a particular type of labor dispute has been declared unconstitutional. In Centro, the Second Circuit found that Oyster Bay’s law unlawfully regulated content based speech because the government would have to assess what the speaker was saying to determine whether the person was violating the law. In other words, as described by the Court, Oyster Bay would have to look at whether the person was stopping vehicles and saying “hire me” verse “tell me the time.” Thus, the Court had no problem finding that Oyster Bay’s law restricted content-based speech.

Commercial Speech is Less Protected Than Other Speech

Constitutional scholars can write lengthy articles about the different kinds of protections the Constitution gives to different types of speech. For purposes of today’s blog, it is sufficient to say that the Constitution gives very high protections to citizens who exercise the Constitution’s most fundamental rights. For example, a citizen who speaks about his or her political beliefs receives the highest level of Constitutional protection, called strict scrutiny.

The speech in Centro, however, concerned employment, which the Court determined constitutes “commercial speech.” The Constitution gives less protections to commercial speech and it is only protected by “intermediate scrutiny.” Under intermediate scrutiny, courts look at whether (1) the law restricts speech that concerns lawful activity; (2) the government has a substantial interest; (3) the law is connected to that interest; and (4) the law is not any more extensive than necessary to meet that government interest.

In Centro, the Court determined that asking for employment is a lawful activity. The Court also had little difficulty in finding that the Town’s interest in protecting the safety and welfare of motorists and pedestrians was substantial and that the law furthered that interest.

The last element of intermediate scrutiny is whether the law was “narrowly drawn to further the interests served.” The Second Circuit agreed with the trial court and found that Oyster Bay failed to establish this element.

First, the Court determined that there are many ways a person could solicit employment which don’t threaten public safety along roadways and so, the law was overbroad. As examples, the Court noted the law made it illegal for children to sell lemonade on a driveway, the law would prohibit a veteran from holding a sign on the sidewalk saying “will work for food,” and it would prevent students from advertising a school car wash on the side of a road.

The Court further noted that there were many other ways to draft the law such that it would not violate the First Amendment, even citing similar laws passed by Oyster Bay which are constitutional.

In sum, the Centro case invalidated the Oyster Bay employment solicitation law because it impermissibly regulated free speech and thus violated the Constitution’s First Amendment.

Long Island First Amendment Lawyers

If you have questions about the Centro case, or about First Amendment free speech or other rights, contact the Long Island First Amendment lawyers of Famighetti & Weinick, PLLC. Our lawyers are available on the web at https://www.linycemploymentlaw.com or at 631-352-0050.

A notice of claim puts the municipality on notice of your claims. The purpose of the notice of claim law is to give the municipality an opportunity to investigate the claim before a lawsuit is filed.

New York’s General Municipal Law 50-e sets forth the general requirements for notices of claim. It requires that the notice contain: (1) the name and address of the claimant and his attorney, if there is one; (2) a statement of what the claim is about; (3) the time, date, and location that the claim arose and how it arose; and (4) the damages incurred. The notice of claim must be served on the municipality (or the Secretary of State) by personal service or by certified or registered mail within ninety days of the claim arising.

After the notice of claim is served, the municipality may conduct a 50-h hearing. Although called a hearing, a 50-h hearing is more akin to a deposition. The municipality, typically by its attorney, will ask the claimant questions which the claimant must answer under oath. Because the answers are given under oath, it’s a good idea to have a lawyer prepare you for the 50-h hearing and to attend the 50-h hearing with you, although it is not required.

The laws relating to notice of claim can be complicated. In addition to the general rules set forth above, there are exceptions and there is a method to ask a court for time to file a late notice of claim, if the ninety days has expired. For these reasons, if you believe you have a legal claim against a municipality, it’s a good idea to contact a lawyer immediately.

If you need to file a notice of claim or if you think you have lawsuit against a municipality, the Long Island employment lawyers at Famighetti & Weinick, PLLC may be able to help. Contact us at 631-352-0050 or visit our website at www.linycemploymentlaw.com.