Articles Posted in Employment Discrimination

Employment laws in New York are complex and always evolving. In 2024, various existing employment laws will see changes take effect. In addition, some entirely new laws will take effect. Today’s Long Island employment law blog will take a look at some of the changes so that employers can consider compliance options and so that employees understand their rights.

The Freelance Isn’t Free Act

A hotly contested issue in employment law is whether workers are independent contractors or employees. Many employers try to categorize workers as independent contractors to avoid many of the legal obligations that come along with adding an employee to payroll. The Freelance Isn’t Free Act is an attempt to add some protections for independent contractors.

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

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

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

Long Island employment lawyers Famighetti & Weinick PLLC are proud to announce that both partners, Matthew Weinick and Peter Famighetti, have been selected to the New York Metro Super Lawyers list. This marks the 10th consecutive year that the magazine selected Weinick and the 8th consecutive year for Famighetti. Additionally, the firm is announcing the opening of a new practice area – mediation services.

Firm Celebrates a Decade of Selections by Super Lawyers Magazine

In 2012, Super Lawyers magazine first selected Weinick for its “Rising Star” list. The Rising Star list is reserved for lawyers who have been practicing for less than 10 years or who are under 40 years old. Super Lawyers’ patented selection process results in just 2.5% of the lawyers in the state being selected for inclusion. Weinick made the cut for inclusion on each list from 2012 to 2018.

Long Island employment law firm Famighetti & Weinick, PLLC recently hired a summer law student intern, Danielle Jacobs. Danielle is a second year student at the Maurice A. Deane School of Law at Hofstra University.

During her time as an intern, Danielle has conducted research and drafted memoranda. Danielle has observed Mr. Famighetti and Mr. Weinick at consultations and arbitration hearings for labor and employment law topics. Additionally, Danielle assists Mr. Famighetti and Mr. Weinick by drafting intent to sue letters, complaints, rebuttals, and settlement agreements, along with writing blog posts on commonly asked questions by clients such as the NYC Mandatory Retirement Plan and the NY HERO Act.

During her time at Hofstra Law School, Danielle has achieved a GPA of 3.72 and is in the top 8.4% of her class. She also recently earned membership as a Staff Member on the Hofstra Law Review for Vol. 50. Danielle holds a Merit Scholarship and a Dean’s Honor Scholarship from Hofstra Law School. Throughout her first year of law school, Danielle also became an active member in the Hofstra Law Women’s club and the Public Justice Foundation. The Public Justice Foundation helps raise money and awards fellowships to students who devote their summers to working in an area of public interest and are unable to be paid while doing so. Danielle spoke with alumni, family members, and friends in order to raise money for the Public Justice Foundation.

The Americans with Disabilities Act, or the ADA, is a federal law which regulates discrimination against individuals with disabilities. The law prohibits discrimination in several areas, including in employment. Like most words in the law, however, disability has a specific definition meaning that to be protected under the law, an individual must have a disability as defined by the ADA. On June 30, 2021, the Second Circuit Court of Appeals in New York joined other jurisdictions and took an expansive interpretation of the meaning of disability. Today’s Long Island employment law blog discusses the case.

To be covered under the ADA, an individual must have a disability as defined by law. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. If an individual has a medical condition that does not meet this definition, then the ADA does not apply and the individual is not entitled to reasonable accommodations under the law and is not protected from discrimination based on the medical condition.

In 2002, the Supreme Court of the United States narrowly interpreted the definition. The Court determined that the words used by Congress, such as major and substantially, implied that disability is a demanding standard. The Court further held that to qualify as a disability, a person’s impairment must be permanent or long term.

The Americans with Disabilities Act is a federal law which requires, among other things, that employers provide reasonable accommodations to employees with disabilities. But, what if, by providing an accommodation, the employer would be violating another federal law? Must the employer still provide that accommodation? Recently, the Second Circuit Court of Appeals in New York weighed in on this question. Today’s Long Island employment law blog discusses the Bey v. City of New York decision.

The Fire Department of New York (FDNY) maintains a policy that requires all firefighters to shave their facial hair in order to wear a tight fitting respirator to protect the firefighters from smoke and toxic fumes. The policy allowed for only short sideburns and trimmed mustaches that do not affect the area where the mask meets with skin.

Pseudofolliculitis Barbae (“PFB”) is a skin condition which causes pain, irritation, and scarring to men who shave with PFB. In other words, men with PFB cannot shave without enduring pain, irritation and scarring. PFB is more prevalent among black males than white males. Firefighters are not immune from PFB, thus some firefighters suffer from PFB, putting their medical condition on a collision course with the FDNY facial hair policy.

Long Island employment lawyers Famighetti & Weinick PLLC have been blogging about whether employers can lawfully require employees to be vaccinated against COVID-19. Our blogs have concentrated on guidance issued by the federal Equal Employment Opportunity Commission and have opined that workplace vaccination requirements are likely lawful, at least under federal law.

But, the EEOC’s guidance is not binding and there have not been any apparent court cases concerning the legality of vaccination requirements. On June 12, 2021, however, a Texas federal court dismissed a challenge to a Texas hospital’s workplace rules requiring that employees be vaccinated or be fired. 116 employees challenged the rule. Today’s Long Island employment law blog discusses the case.

On April 1, 2021, Texas hospital Houston Methodist, issued a policy directing that all of its employees must be vaccinated by June 7, 2021. 116 employees challenged the rule in federal court and asked that the court block the hospital from requiring that they be injected with the vaccine or be fired.

At the beginning of the COVID-19 pandemic, Long Island employment lawyers Famighetti & Weinick PLLC published information on our website warning that the financial impact of the pandemic could be used by employers to conduct unlawful discriminatory layoffs. Indeed, the firm has seen this scenario play out. On June 7, 2021, the New York State Division of Human Rights issued a determination of Probable Cause, in a case filed by Famighetti & Weinick PLLC alleging that the client’s inclusion in a reduction in force plan constituted discrimination based on age and/or disability. Today’s Long Island employment blog discusses this decision.

According to the New York State Division of Human Rights, the employee worked for a Long Island medical provider for 34 years and was 70 years old. After the pandemic started, the company implemented a reduction in force plan which included the 70 year old employee. The employee alleged that she was replaced with a younger employee who had less experience, showing her inclusion in the plan was pre-text for discrimination. But, the company alleged 28 employees in total were terminated and their ages ranged from 20 to 79, undermining a claim that age played in role in termination decisions.

During the Division’s investigation, it learned that the employee’s position was indeed given to a younger employee with much less experience. The company argued the decision was based on the replacement’s efficiency as compared to the terminated employee, but could not articulate any demonstrable basis for this comparison.

In late 2020, COVID-19 vaccines began rolling out to the public. Some individuals could not roll up their sleeves quick enough to get the vaccine. Others, however, are reluctant to receive the vaccine for any number of reasons. With the vaccine now widely available, businesses, schools, and other public places are considering whether to require vaccinations for workers, students, customers and/or visitors.

Concerning workplaces, on May 28, 2021, the Equal Employment Opportunity Commission, the federal agency charged with regulating workplace discrimination, issued guidance relating to COVID-19 vaccines and employment. Among other things, the EEOC’s guidance addresses whether employers can require employees to get vaccinated. Today’s Long Island employment law blog discusses the guidance.

Generally, employers have broad discretion about how to govern their workplaces and their workers’ working conditions. Of course, some limitations exist. The National Labor Relations Act regulates some conditions, such as employees’ cooperating together to improve their working conditions. OSHA regulates workplace safety standards. The FLSA sets a minimum wage and overtime pay requirements. There’s also a myriad of anti-discrimination laws which prohibit employers from setting employees’ terms and conditions of employment based on protected characteristics such as age, race, disability, sex, national origin, or religion.

On March 26, 2021, the New York State Division of Human Rights issued a determination of Probable Cause in a firm’s religious discrimination case. Today’s Long Island employment law blog discusses the case and what happens next.

The following is taken from the New York State Division of Human Right’s final investigation report.

The firm’s client, a Muslim, worked for an ambulance company as a driver. When he was first hired, he was told he would have to shave his beard, which he initially did, but told the company he maintained his beard because of religious beliefs. He interprets his religious teachings as prohibiting Muslims from cutting their beards.

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