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Articles Posted in employment

On April 3, 2020, Governor Cuomo signed into law New York’s Paid Sick Leave law. The law provides guaranteed paid sick leave to many of New York’s workers. Today’s Long Island employment law blog discusses the provisions of this new law.

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

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

One of the hottest topics in the pre-pandemic world of employment law was whether gig drivers and workers are employees or independent contractors. The term gig worker applies to a variety of work arrangements, but is increasingly used to describe workers who provide services for online ride sharing businesses such as Uber and Lyft and online food delivery services such as Grubhub and Doordash.

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

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

At Famighetti & Weinick PLLC, our Long Island employment lawyers are fielding calls from employees worried about a number of different coronavirus related employment issues. One serious issue we are seeing is health care workers’ concerns about working when the best protective equipment may not be available or may not be being provided by the employer. Specifically, what we’re seeing is questions about whether health care workers, such as nurses, doctors, and nursing home aides, must report to work when their employer is not providing equipment like n-95 respirator masks. Today’s Long Island employment law blog discusses workplace safety issues related to working in the era of Covid-19.

Like most employment questions relating to coronavirus, there are no easy answers. We’ll first look at some legal considerations, then we’ll address some practical considerations.

OSHA is the federal agency which regulates workplace health and safety. OSHA regulation Section 13(a) allows employees to refuse to work when the employee believes that he or she is in “imminent danger.” To be considered an imminent danger, the workplace condition must “reasonably be expected to cause death or serious harm immediately or before the imminence of such danger can be eliminated through” OSHA’ enforcement procedures. In further defining imminent danger, the condition must be reasonably expected to shorten life or substantially reduce physical or mental efficiency.

The New York City Council has passed bills which will amend the New York City Human Rights Law. The bills concern lactation in the workplace for nursing mothers. Today’s New York employment law blog discusses these changes.

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

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

On October 9, 2018, new laws concerning sexual harassment in the workplace will take effect in New York State. Included in these changes are coverage for independent contractors under the New York State Human Rights Law, training requirements for employees, and employee handbook and policy requirements. Today’s Long Island employment law blog looks at some of these changes.

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

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

SuperLawyers Magazine has published its annual New York Metro Lawyers List. The SuperLawyers list includes Long Island employment lawyers Peter J. Famighetti and Matthew Weinick. 2018 marks the seventh year that Weinick has been listed on the Rising Stars list and the fifth year that Famighetti has been included on the SuperLawyers list.

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

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

New York City just made it easier for employees to take time off from work. In 2017, the City passed a series of laws known as the Fair Workweek laws which were intended to end abusive scheduling practices that affect workers in New York City, particularly workers in the retail and fast food industry. Just about one year after unveiling its Fair Workweek legislation package, New York City also made some hefty changes to the law to provide eligible employees with more comprehensive protection.

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

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

How much is an employment discrimination lawsuit worth? As Long Island employment lawyers, this is a frequent question we hear from victims of unlawful workplace discrimination in New York.  Victims of discrimination may be able to recover several categories of damages which comprise the total amount that an employment discrimination lawsuit may be worth. Today’s Long Island employment law blog discusses the damages available to discrimination victims.

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

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

Long Island employment lawyer Matthew Weinick has been named Vice-Chairperson of the Nassau County Bar Association’s (NCBA) Labor and Employment Law committee.  Weinick was appointed in July 2018 and he will serve during the association’s 2018/19 calendar year.

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

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

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

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

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

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