COVID-19 Update: How We Are Serving and Protecting Our Clients. Click for More Information.

Articles Posted in Public Employees’ Rights

On April 1, 2021, Long Island employment lawyers Famighetti & Weinick PLLC filed a Petition for Writ of Certiorari with the United States Supreme Court. The Petition asks the court to take up a case concerning the due process rights of public employees. Today’s Long Island employment law blog discusses the case and the petition.

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.

Long Island employment lawyer Peter Famighetti has won a ruling on a threshold issue concerning an arbitration for a faculty member of Nassau Community College. Famighetti represents a college professor in a dispute related to the professor’s bid to become chairperson of his department. The professor alleged the teachers’ collective bargaining agreement was violated during the election process and ultimately filed a grievance to challenge the election process. Today’s Long Island employment law blog discuss what happened next in the grievance process.

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.

On April 10, 2019, the South Huntington Water District sent a letter to Juliet Irving. The Water District had been providing health insurance benefits to Irving as the surviving enrollee on a deceased employee’s insurance policy. The letter indicated the District would be revoking Irving’s health insurance coverage. Then, Irving hired Long Island employment lawyers Famighetti & Weinick PLLC who took the District to court and won a decision prohibiting the District from revoking the insurance. Today’s Long Island employment law blog discusses the case.

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.

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.

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.

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.”

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.

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.

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

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.

Contact Information