Public Employees' Rights Category Archives — Long Island Employment Law Blog Published by Long Island Employment Law Attorneys

March 11, 2020

Resign or Face Termination: An Adverse Action?

Resign or you will be fired. This ultimatum is often posed to employees. Employees in this position have to weigh many considerations, including the effect of the black mark of a termination, potentially waiving certain rights by resigning, and other effects to employment benefits based on how the separation from employment is categorized.

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.

September 18, 2019

Employment Lawyers Obtain $294,000+ Settlement

by Famighetti & Weinick

Long Island employment lawyer Peter J. Famighetti secured a sizeable settlement for a firm’s employment litigation client. The settlement amount totals just shy of $295,000 and was based on claims that the public employer violated constitutional due process and civil service laws. As discussed below, the case shows that Famighetti & Weinick PLLC is able to use a wide range of tactics along with its depth of knowledge of employment laws, to obtain quick and substantial results for clients, oftentimes without ever needing to file a lawsuit, as was the case here.

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.

November 7, 2018

SCOTUS Sides with Employee in Firefighter Age Discrimination Case

by Famighetti & Weinick

Are firefighters of small municipal fire departments covered by the Age Discrimination in Employment Act (ADEA)? On November 6, 2018, the United States Supreme Court answered that question the case Mount Lemmon Fire District v. John Guido. Today’s Long Island employment law blog takes a closer look at the decision and also discusses whether the decision offers a glimpse into how the new makeup of the court may affect employment cases.

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.”

July 5, 2018

Looking at the Janus Decision’s Dissent

by Famighetti & Weinick

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.

June 28, 2018

Discussion of the SCOTUS Union Dues Case: Janus

by Famighetti & Weinick

On June 27, 2018, social media and news outlets went crazy when the Supreme Court decided Janus v. State, County, and Municipal Employees. Many posters and commentators argued that the decision constituted an assault by SCOTUS on unions. From a strictly legal perspective, however, Janus decided a question related to the First Amendment’s free speech guarantees. Today’s Long Island employment law blog discusses the legal issues concerning the Janus union decision.

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.

May 17, 2018

First Amendment Retaliation From Union Activity

by Famighetti & Weinick

The First Amendment of the United States Constitution protects, among other rights, the freedom of speech. An unsettled area of employment law in New York has been the question of how much protection does the First Amendment provide to public sector employees like police officers. Today’s Long Island employment law blog discusses a recent case involving a police officer’s union activity and First Amendment retaliation. Continue reading

March 9, 2018

Twitter and the First Amendment

by Famighetti & Weinick

The First Amendment to the United States Constitution protects several rights, including the freedom of speech. Indeed, the text of the Amendment reads “Congress shall make no law . . . abridging the freedom of speech.” Like most Constitutional rights, the freedom of speech is not limitless and the level of Constitutional protection speech may be afforded depends, sometimes, on where the speech is made. Courts have interpreted the freedom of speech to apply to a variety of forums, including books, public streets, and, in some cases, public buildings. Today’s civil rights blog discusses the collision between a centuries old document and 21st century technology – twitter.

Public Forums vs. Non-Public Forums

Throughout the course of U.S. history, the country’s courts have been called upon to interpret the meaning of the Constitution and its Amendments. As First Amendment law has developed, it’s become understood that public spaces can fall into one of three types of forums — a public forum, a public forum by designation, and a non-public forum. The level of First Amendment rights a person has in a public space is dependent on which of these types of forum the public space is classified as.

August 23, 2017

Solicitation of Employment is First Amendment Speech

by Famighetti & Weinick

In 2009, the Town of Oyster Bay in New York passed a law prohibiting people from soliciting employment along roadways within the Town. Two public interest groups sued the Town alleging that the law violated the First Amendment’s protection of free speech. On August 22, 2017, the Second Circuit Court of Appeals upheld the trial court’s determination that the law violates the First Amendment. Today’s New York civil rights blog discusses the case Centro de la Comunidad Hispana de Locust Valley v. Oyster Bay.

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.

April 6, 2017

Section 75 Lawyers

by Famighetti & Weinick

Many of New York’s public employees are protected by Section 75 of the Civil Service Law. Public employees include employees of the state, counties, towns, villages, cities, and special districts such as fire districts, library districts, sanitation districts, and school districts. The employment lawyers on Long Island of Famighetti & Weinick are experienced in Section 75 proceedings and may be able to help you understand your rights.

Section 75 Protections

Section 75 sets forth protections for certain public employees. Section 75 prohibits the discipline or termination of a public employee except for incompetence or misconduct. Thus, the law alters the traditional at-will employment rule by which employees can usually be terminated for any reason, as long as the reason is not illegal, such as discrimination.

December 20, 2016

Filing a Notice of Claim in New York

by Famighetti & Weinick

Generally, if you want to sue a municipality in New York – a town, city, village, or county, or a special district such as a school district, fire district, library district, or sanitation district — you must first file a notice of claim. A good rule of thumb is that a notice of claim should also be filed if you have a claim against an employee of a municipality which arises from that employee’s employment.

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.