March 3, 2018

Sexual Orientation Discrimination in New York

Title VII of the 1964 Civil Rights Act prohibits workplace discrimination. Title VII, however, prohibits only the types of discrimination identified in the statute, including race discrimination, sex discrimination, religious discrimination, and national origin discrimination. For nearly two decades, the prevailing view from the country’s federal courts, including New York’s federal appellate court (the Second Circuit), was that Title VII does not prohibit workplace discrimination based on an employee’s sexual orientation. On February 26, 2018, the Second Circuit became the second federal circuit court to reverse its prior precedent and hold that Title VII does indeed prohibit sexual orientation discrimination. Today’s Long Island employment law blog discusses the Zarda v. Altitude Express, Inc. decision.

The Background of Zarda and Sexual Orientation Discrimination Law in New York

Zarda stems from an employer’s termination of a sky-diving instructor from Long Island in 2010, soon after the employee disclosed his sexual orientation. The District Court and then the Second Circuit initially ruled against the sky-diving instructor, holding that the Courts’ prior decisions interpreting Title VII required ruling that Title VII’s prohibitions do not include sexual orientation discrimination.

February 23, 2018

Employment Benefits After Retirement

by Famighetti & Weinick

Most employees in the United States are considered to be at-will employees. At-will employment status means that an employee can be terminated at any time, for any or no reason, as long as the reason is not discriminatory. It also allows employers the freedom to decide the terms of employment without specifying any benefits, if any, the employer plans on giving an employee. On the other hand, employees who are in a union are generally covered under a contractual agreement stipulating the conditions of employment such as when he or she can be fired and any benefits he or she is entitled to, such as health care benefits and retiree benefits.

On February 20, 2018, the United States Supreme Court settled the question of whether a union contract, that did not explicitly specify the termination date of health care benefits, entitled a group of retirees to lifetime health care benefits.

In CNH Industrial N.V. v. Reese, a group of retirees, had a collective-bargaining agreement (“CBA”) that expired in 2004. The agreement contained a provision providing health care benefits to “[e]mployees who retire under the . . . Pension Plan.” Although this provision did not specify when, if at all, this entitlement expired, the CBA contained another clause stating that “[a]ll other coverages” ended after retirement. The CBA also specified that the group benefit plan “r[an] concurrently” with the agreement and in fact, contained a “general durational clause” specifying that the agreement terminated in May 2004.

January 30, 2018

Federal Judge Commends Firm’s Work

by Famighetti & Weinick

“Knowledgeable,” “experienced,” an attorney who represented his client “zealously”; these are just some of the comments from United States Magistrate Judge Henry Pitman in describing the “caliber” of Long Island employment lawyer Matthew Weinick’s work at a recent settlement conference held before the judge. On January 30, 2018, Judge Pitman issued an order approving the settlement for an unpaid wage case being defended by F&W. The details are discussed below.

Long Island employment lawyers Famighetti & Weinick PLLC often represent workers who are not paid proper overtime or minimum wage. But, we also defend employers in unpaid wage cases.

In this case, F&W represented a private school which provides instruction for nurses aides. A former employee alleged, among other things, that the school did not pay her overtime for hours for worked above 40 in a week and that the school did not pay her at all for other hours worked. At a conference before the presiding District Court Judge, Long Island employment lawyer Matthew Weinick presented a strong defense to the claims based on a recent case decided the Second Circuit Court of Appeals, New York’s federal appellate court. The judge suggested that instead of spending time and money on a motion which may dismiss the case, the parties should meet with the magistrate judge to see if the case could be settled.

January 30, 2018

Am I an Employee: The Threshold Question in Employment Discrimination

by Famighetti & Weinick

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on, among other reasons, the employee’s race, religion, national origin, and sex. Title VII also protects employees from retaliation by their employer for reporting or opposing the employer’s discriminatory actions. Before bringing an employment discrimination case, however, the employee must be able to show that he or she is in fact an employee and not, for example, an independent contractor. Today’s Long Island employment discrimination blog discusses the Second Circuit Court of Appeals case, Knight v. State University of New York Stony Brook, which addressed the question of how to determine whether an individual is an employee.

The Discriminatory and Retaliatory Conduct

Anthony Knight is African American and was a member of an electrician’s union. The union had agreed to provide electricians to Stony Brook, when Stony Brook needed additional workers for large construction projects. In April 2011, the union sent Knight to help Stony Brook with a project. While working at Stony Brook, Knight found “racist” graffiti in the bathroom and reported it to his foreman. After the report, Stony Brook terminated Knight’s work. Knight sued Stony Brook alleging the graffiti was discriminatory and the termination was taken in retaliation for his complaint about the graffiti. The court dismissed the discrimination claim, but the retaliation claim went to trial.

January 23, 2018

State Claims Tolled While In Federal Court

by Famighetti & Weinick

As Long Island employment lawyers, we keep up to speed with developments in employment law. Equally important though, is staying updated with questions of procedure. On January 22, 2018, the United States Supreme Court issued a decision relating to the statue of limitations for state law claims which are initially filed in federal court, but later dismissed.

Supplemental Jurisdiction: State Law Claims Brought in Federal Court

Employment laws are created by federal, state, and sometimes local laws. In other words, when an employee faces sexual harassment in the workplace (for instance) the employee’s claim may be brought pursuant to Title VII which is the federal workplace anti-discrimination law. But, in New York, the employee may also bring the claim under the New York State Human Rights Law and if the employee worked in New York City, the claim may be brought under the New York City Human Rights Law. Since the employee is using a federal statute, as well, the entire case may be filed in a United States District Court. Generally (and without discussion of the exceptions which may apply) cases involving just claims arising under state law cannot be heard in a federal court because the federal courts are courts of limited jurisdiction. But if state and federal claims are related, a federal court can exercise supplemental jurisdiction and the court can hear all the claims at once.

January 23, 2018

The “Weinstein Tax” Consequences

by Famighetti & Weinick

On December 20, 2017, the United States Congress passed a tax bill which changed many provisions of the United States tax code. Many of those most prominent changes received extensive coverage by the press. One smaller provision, however, did not receive much attention, but has the potential to affect sexual harassment cases in a significant way. Today’s Long Island employment law blog discusses the so-called “Weinstein” provision in the new tax bill.

Sexual Harassment Cases

For many reasons, victims of sexual harassment are often reluctant to bring their stories to light and to seek justice for the abuse they faced. One of the reasons victims are reluctant is that sexual harassment cases are often he said, she said, so victims are afraid that they won’t be believed. Perhaps a more troubling reason is that victims are worried that by making their claims public, their careers and/or reputations will be hurt.

January 19, 2018

Can My Job Require That I Get Vaccinated?

by Famighetti & Weinick

With many states declaring flu epidemics and with the spread of other communicable diseases, many employers, particularly in the health care industry, are requiring employees to receive vaccinations. Employees rightfully have concerns about being forced to receive a vaccination and so a common question is whether employers can force employees to be vaccinated against the flu or other diseases. Like most legal questions, the answer is not so simple. Today’s Long Island employment law blog explores the issue of whether employers can require employees to be vaccinated.

Employment at Will

The starting point to many employment law questions is the fact those most states, including New York, are employment at will states. Employment at will means that employers can hire or fire employees for nearly any reason at all, as long as the reason is not unlawful. Unless the employee was able to negotiate a contract which sets the terms of employment, employees generally remain at will so employers are free to impose all kinds of conditions on employment. One of the conditions an employer may place on an employee is that the employee be vaccinated against diseases, such as the flu. An employee may refuse to accept the vaccination, but in most cases, because the employee is “at will” the employer may fire the employee for not complying with a vaccination policy.

January 4, 2018

Do I Get Paid for a Snow Day?

by Famighetti & Weinick

Long Island is prone to Nor’Easters and other significant snow and weather events. A popular question is whether employers must pay their employees when the business closes due to snow or other inclement weather. Today’s Long Island employment law blog discusses pay issues related to weather emergencies.

Pay Laws in New York

In New York, employees are covered primarily by two laws which concern how employers pay employees. The Fair Labor Standards Act (FLSA) is a federal law which sets requirements for minimum wage and overtime. The New York Labor Law (NYLL) is New York’s counterpart to the FLSA and similarly sets a minimum wage in New York, overtime rules, and other pay related rules such as frequency of payments.

January 2, 2018

2018 Laws Taking Effect in New York

by Famighetti & Weinick

New year, new laws! New York is ringing in the new year with changes to employment laws which regulate workplaces. Today’s New York employment law blog examines some of the laws effecting New York workplaces in 2018, including paid family leave and minimum wage.

New York Paid Family Leave Law

January 1, 2018 marked the first day for New York’s new paid family leave law. The law applies to private employers with as few as one employee. Employees who have been working full-time for 26 consecutive weeks or part-time (less than 20 hours per week) for 175 consecutive days can take advantage of this new law to care for a family member who has a serious health condition. During this first year the law is in effect, eligible workers will be able to take up to 8 weeks of paid leave but after 2021, workers will be able to take up to 12 weeks off.

December 27, 2017

Workplace Safety Issues

by Famighetti & Weinick

Workplace safety is of paramount importance. Employees who are injured in the workplace risk disabling injuries which could prevent them from earning a living in the future. Lawsuits arising from workplace injuries could devastate businesses. Today’s Long Island employment law blog discusses workplace safety laws.

OSHA and Federal Workplace Safety Agencies

The Occupational Safety and Health Administration (OSHA) protects workers and ensures they are working under safe working conditions. In response to workplace safety complaints, OSHA is tasked with inspecting work sites. Employers, contractors, or work site owners who fail to comply with OSHA’s safety regulations, may receive hefty fines, loss of licensing, and even a lawsuit.