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When two legal rights collide, how does the court pick a side? The United States Supreme Court’s ruling on June 4, 2018, in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, made it clear that it is not an easy decision. Today’s Long Island civil rights blog discusses whether a baker can rightfully turn down a gay couple’s request to design their wedding cake if the baker’s religion does not accept gay marriage.

Freedom of speech and religion are two important civil liberties protected under the First Amendment to the United States Constitution. Freedom of speech extends to both traditional verbal speech, and expressive conduct also known as symbolic speech. Burning a flag and wearing a t-shirt opposing a political leader are two examples of symbolic speech.

Conduct remains at the heart of symbolic speech claims. Thoughts, ideas, and opinions are powerful and courts have decided to protect them in certain scenarios. However, the conduct’s offensiveness or irrationality can never be taken into consideration when deciding whether or not the conduct deserves First Amendment protection.

For the fourth consecutive year, Long Island employment lawyer Matt Weinick has been asked to return to Hofstra Law School to teach the Foundational Lawyering Skills class.  Weinick will be designated as a Special Instructor to teach second year law students, commonly referred to as “2L’s.”

According to Hofstra Law School’s website, the Foundational Lawyering Skills class is a required course for all second year students.  It teaches “core lawyering skills” such as litigation and transactional lawyering.  Instructors assess the students’ competency in those skills.  The class is comprised of a lecture and “break-out classes.”  Weinick will be instructing one section of the break-out class on Tuesday afternoons.

The fall 2018 semester will be the fourth year in a row Weinick has participated as an instructor in the Foundational Lawyering Skills class program.  Last year Weinick’s students commented that he was “pleasant,” “professional,” gave “thoughtful feedback,” “He was good, seemed effective,” and he was “Great, informative, knew the material, gave effective comments.”

The federal Fair Labor Standards Act  (“FLSA”) and the New York State Labor Law (“NYLL”) require employers to pay employees overtime whenever they work over 40 hours in a workweek. The overtime pay rate, under both laws, is 1.5 times the regular rate of pay. So, for example, if an employee’s regular hourly rate is 14 dollars, but that employee works more than 40 hours during  a certain week, then the employer must pay the employee 21 dollars an hour for every hour worked over 40.  Today’s Long Island employment law blog discusses whether this overtime requirement applies to service advisors working automobile dealerships in New York.

One point that is different between the FLSA and the NYLL is the list of employees who are exempt from the overtime requirement. Being exempt means that the employee is not entitled to receive overtime pay. For example, employees who work at car dealerships as service advisors are one of the types of employees who are exempt from the federal overtime pay requirement, but not from the New York State law requirement.

Some employment agreements may also prevent an employer from simply turning their back to overtime pay requirements and may nevertheless require them to pay an employee overtime even if they are not required to do so under either the FLSA or NYLL.

Are teachers in educational settings other than primary schools, secondary schools, or colleges entitled to receive minimum wage for out-of-classroom work and/or overtime pay when their classroom and out-of-classroom work exceed forty hours per week? New York’s highest federal court recently said “NO!”

The following facts are taken from Fernandez v. Zoni Language Ctrs., Inc. decided by the Second Circuit Court of Appeals on May 26, 2017.

The plaintiffs were English Language instructors at a private, for-profit institution offering English classes to adult students. The teachers argued that their employer, Zoni Centers, was required to pay them minimum wage for hours worked outside of the classroom, such as when preparing for class and grading work, and overtime hours when their classroom and out-of-classroom work exceeded forty hours per week. The District Court held that although employers are generally required by the Fair Labor Standards Act (“FLSA”) to pay employees minimum wage and overtime, teachers are considered bona fide professionals exempt from these FLSA requirements. Thus, Zoni Centers was not required to abide by the general FLSA requirements.

Famighetti & Weinick, PLLC are employment lawyers serving Garden City New York.  Famighetti & Weinick handles a wide range of employment law matters including discrimination, retaliation, and recovering unpaid minimum wage and overtime for employees.

Employment Discrimination in Garden City

Employees in Garden City continue to face discrimination in employment.  Sex discrimination in Garden City can happen when an employer treats one particular sex different than another.  For example, an employer may promote only men instead women.  Another growing type of discrimination is gender discrimination and gender stereotype discrimination.  An example of gender stereotype discrimination is where an employer fires a male who displays “effeminate” characteristics.

Famighetti & Weinick, PLLC are employment lawyers serving Freeport New York.  Famighetti & Weinick handles a wide range of employment law matters including discrimination, retaliation, and recovering unpaid minimum wage and overtime for employees.

Employment Discrimination in Freeport

Employees in Freeport continue to face discrimination in employment.  Sex discrimination in Freeport can happen when an employer treats one particular sex different than another.  For example, an employer may promote only men instead women.  Another growing type of discrimination is gender discrimination and gender stereotype discrimination.  An example of gender stereotype discrimination is where an employer fires a male who displays “effeminate” characteristics.

Famighetti & Weinick, PLLC are employment lawyers serving Carle Place New York.  Famighetti & Weinick handles a wide range of employment law matters including discrimination, retaliation, and recovering unpaid minimum wage and overtime for employees.

Employment Discrimination in Carle Place

Employees in Carle Place continue to face discrimination in employment.  Sex discrimination in Carle Place can happen when an employer treats one particular sex different than another.  For example, an employer may promote only men instead women.  Another growing type of discrimination is gender discrimination and gender stereotype discrimination.  An example of gender stereotype discrimination is where an employer fires a male who displays “effeminate” characteristics.

Famighetti & Weinick PLLC are employment lawyers on Long Island, New York who handle cases of wrongful termination.  Wrongful termination on Long Island can come in different forms, such as discrimination or retaliation.

Wrongful Termination in New York

Employees in New York are considered to work at-will.  At-will employment means that employers can hire or fire employees for any reason or no reason at all.  The reason, however, cannot be an unlawful reason.  Because of employment at-will in New York, unlawful reasons are created by the passage of laws so there are only a few reasons which may considered wrongful termination in New York.  An employer simply making up a reason, framing an employee, or believing one employee’s story over another, are generally not wrongful terminations.  These acts, however, may be evidence of a wrongful termination and be used as evidence of discrimination or retaliation.

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 Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) require that most employees receive overtime pay for all hours worked over 40 in a workweek.  Overtime pay is one and one half times the regular rate of pay.  Famighetti & Weinick PLLC are employment lawyers in New York and handle many of the issues discussed below relating to overtime pay in New York.

Who is Entitled to Overtime Pay in New York?

Only employees may be entitled to overtime pay.  In other words, independent contractors are not employees and are, therefore, not entitled to overtime pay.  Employers, however, frequently misclassify workers as independent contractors.  Simply paying an employee “on a 1099” is not the end of the inquiry as to whether a worker is an independent contractor.  As a matter of fact, being paid on a 1099 is probably the least important factor.  Rather, courts will look at the level of control that the employer has over the worker, the worker’s ability to set work hours and pay, who supplies the tools and equipment, and the permanency of the work.  The more control it appears that the employer has over the worker, the more likely it is that the worker is an employee and not an independent contractor.

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