Articles Posted in Retaliation

The Family Medical Leave Act (“FMLA”) is a federal law which allows eligible employees to take a leave of absence from work for several reasons such as when dealing with a serious health condition. The FMLA prohibits an employer from interfering, restraining, or denying an employee’s right to exercise a leave of absence under the FMLA.

A Serious Health Condition Under the FMLA

A “serious health condition” under the FMLA includes “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.”

To start a federal discrimination or retaliation lawsuit, a plaintiff must file a complaint with the court. The complaint is a document which states the facts which the plaintiff alleges add up to causing the defendant to be liable to the plaintiff. In Federal courts, the complaint must set forth enough facts to make the plaintiff’s claims plausible, otherwise, the case risks being dismissed by the court. On June 15, 2017, New York’s Federal appellate court decided a case which discusses this “plausibility” standard.

The Plausibility Standard

For years, Federal courts applied a liberal “notice pleading” requirement to determine whether complaints should be dismissed or not. Courts looked to determine whether there were enough facts to give notice to the defendants about the basis for the plaintiff’s case. Then, in 2009, the Supreme Court in Ashcroft v. Iqbal, applied a stricter standard and held that complaints must “contain sufficient factual matter, accepted as true” to state a plausible claim for relief. If not, the complaint will likely be dismissed. The Supreme Court did not provide much guidance about what that standard means and so courts have struggled to apply the standard to the cases coming before them.

An employee called his boss a “NASTY MOTHER F***ER” on Facebook and further wrote about the boss: “F*** his mother and his entire f***ing family.”  His boss fired him.  Was this a wrongful termination? The answer may be surprising.  Today’s employment law blog from Long Island employment lawyers Famighetti & Weinick PLLC explains.

The following facts are taken from NLRB v. Pier Sixty, LLC, a case decided by the Second Circuit Court of Appeals on April 21, 2017.

Hernan Perez was a server for Pier Sixty, a catering company.  In 2011, Pier Sixty’s employees sought union representation.  The organizing campaign was “tense,” with management threatening employees that they could be fired for union activities.  Nonetheless, the employees unionized via a vote on October 27, 2011.

Retaliation takes many forms in Long Island’s workplaces.  Employees can face demotions, terminations, reductions in pay, or employers will refuse to promote employees as retaliation for employees complaining about discrimination or for engaging in other protected activity.  Famighetti & Weinick PLLC are employment lawyers on Long Island, New York who can assess cases of workplace retaliation.

Retaliation in Suffolk and Nassau Counties Long Island

Retaliation can and does take place in Long Island’s workplaces.  Only certain activities, however, can trigger protections against workplace retaliation on Long Island. The federal anti-discrimination statutes provide protections.  For example, Title VII of the Civil Rights Act protects employees who complain about or oppose discrimination.  It further protects employees who participate in EEOC discrimination investigations or testify in discrimination lawsuits. The Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA), all have similar protections for employees who exercise rights under the statutes.

The Equal Employment Opportunity Commission (“EEOC”) is a federal agency charged with investigating and enforcing the federal anti-discrimination workplace laws, such as Title VII, ADA, ADEA, and GINA.  These laws prohibit discrimination on the basis of race, sex, national origin, religion, pregnancy, disability, age, and genetic information.  These laws also prohibit employers from retaliating against employees who complain about discrimination.

Charge of Discrimination

The EEOC can start an investigation when an employee files a charge of discrimination with the agency.  The charge must contain the employee’s name and contact information, the employer’s name and contact information, the total number of employees employed, a description of the discrimination including when the events took place, the basis of discrimination (i.e. race, religion, age), and a signature.  The charge can be filed in person, by phone, or by mail.  In New York, the EEOC charge must be filed within 300 days of the event which gave rise to the discrimination.  This deadline can vary between states so if you are not in New York, you should check with your local EEOC office.  New York’s EEOC office is located on Whitehall Street in Manhattan.

The Family Medical Leave Act or FMLA, is a federal law which provides short term leave for employees.  The law has many requirements for employers and employees.  Today’s employment law blog discusses how employees can use FMLA leave and what employers must do under the law.

The FMLA allows eligible employees to take up to 12 weeks of leave to care for their own serious medical condition, to care for a family member’s serious medical condition, or for the birth and care of a newborn or newly adopted child.  Eligible employees must have worked for at least the preceding 12 months for the employer, and must have worked at least 1250 hours during those months.  The employer must employ at least 50 employees for the FMLA to apply to it.

Employers are not required to pay employees during FMLA leave.  Employers, however, must reinstate employees who have taken FMLA leave to the same or similar position which the employee held before leave.  Employers may not interfere with an employee’s use of FMLA leave nor may an employer retaliate against an employee who has exercised FMLA rights.

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