Justia Lawyer Rating
Matthew Weinick
Avvo Rating - 10.0
Super Lawyers - Peter
Super Lawyers - Matthew
Lead Counsel
Kev's Best

Long Island employment lawyer Peter J. Famighetti received a 10.0 rating from attorney review website AVVO.  Famighetti joins his partner and fellow Long Island employment lawyer, Matthew Weinick, at the top of the attorney ratings on AVVO.

AVVO is website which maintains attorney profiles and issues ratings to the lawyers on its site.  According to AVVO, the ratings “evaluate a lawyer’s background.”  Their ratings use “a model that considers information the lawyer has included on their profile in addition to the information [it] collect[s] from public sources.”  That information is “considered and weighted by [their] mathematical module to calculate a numerical rating, ranging from 1 to 10.”

Famighetti’s profile notes his many accomplishments, including selection to the “Super Lawyer’s” list from 2014 to 2017, verdicts, publications, and speaking engagements.  Additionally, AVVO collects peer reviews and client testimonials.  For example, former client “Michael” wrote about Famighetti that “there is no one who will represent you in a more professional and personable manner that this man.”  Former client “Danielle” said that Famighetti “did an amazing job.”  Jaime Roth, an attorney who opposed Famighetti in an employment case was apparently so impressed with him that she wrote, “Peter and I were opposing counsel in a challenging employment discrimination matter. He is a zealous advocate for his clients.”

Federal and state laws protect employees from discrimination and prohibit employers from making employment decisions based on factors such as race, gender, religion, national origin, disability, and age. These laws also protect employees against retaliation. In other words, employers are prohibited from subjecting employees to negative employment decisions, such as termination or demotion, because an employee engages in “protected activity” such as filing a discrimination charge with a federal or state agency.  Sometimes, discrimination laws clash with Constitutional concerns.  Today’s Long Island employment law blog discusses the ministerial exception to religious discrimination claims.

In 2012, however, in Hosanna‐Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., the U.S. Supreme Court adopted the ministerial exception doctrine. This exception is an affirmative defense that an employer can use to defend employment discrimination lawsuits. The Supreme Court has recognized that while there isn’t a strict formula to decide when the exception applies, it is usually the role performed by the employee and the religious activities of the employer that determines whether the exception applies.

On March 7, 2018, New York’s federal circuit court in Penn v. New York Methodist Hospital, decided a case based on the application of the ministerial exception doctrine.

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.

Title VII of the 1964 Civil Rights Act prohibits workplace discrimination.  Title VII, however, prohibits only the types of discrimination identified in the statute, including race discrimination, sex discrimination, religious discrimination, and national origin discrimination.  For nearly two decades, the prevailing view from the country’s federal courts, including New York’s federal appellate court (the Second Circuit), was that Title VII does not prohibit workplace discrimination based on an employee’s sexual orientation.  On February 26, 2018, the Second Circuit became the second federal circuit court to reverse its prior precedent and hold that Title VII does indeed prohibit sexual orientation discrimination.  Today’s Long Island employment law blog discusses the Zarda v. Altitude Express, Inc. decision.

The Background of Zarda and Sexual Orientation Discrimination Law in New York

Zarda stems from an employer’s termination of a sky-diving instructor from Long Island in 2010, soon after the employee disclosed his sexual orientation. The District Court and then the Second Circuit initially ruled against the sky-diving instructor, holding that the Courts’ prior decisions interpreting Title VII required ruling that Title VII’s prohibitions do not include sexual orientation discrimination.

Most employees in the United States are considered to be at-will employees. At-will employment status means that an employee can be terminated at any time, for any or no reason, as long as the reason is not discriminatory. It also allows employers the freedom to decide the terms of employment without specifying any benefits, if any, the employer plans on giving an employee. On the other hand, employees who are in a union are generally covered under a contractual agreement stipulating the conditions of employment such as when he or she can be fired and any benefits he or she is entitled to, such as health care benefits and retiree benefits.

On February 20, 2018, the United States Supreme Court settled the question of whether a union contract, that did not explicitly specify the termination date of health care benefits, entitled a group of retirees to lifetime health care benefits.

In CNH Industrial N.V. v. Reese, a group of retirees, had a collective-bargaining agreement (“CBA”) that expired in 2004. The agreement contained a provision providing health care benefits to “[e]mployees who retire under the . . . Pension Plan.” Although this provision did not specify when, if at all, this entitlement expired, the CBA contained another clause stating that “[a]ll other coverages” ended after retirement. The CBA also specified that the group benefit plan “r[an] concurrently” with the agreement and in fact, contained a “general durational clause” specifying that the agreement terminated in May 2004.

“Knowledgeable,” “experienced,” an attorney who represented his client “zealously”; these are just some of the comments from United States Magistrate Judge Henry Pitman in describing the “caliber” of Long Island employment lawyer Matthew Weinick’s work at a recent settlement conference held before the judge.  On January 30, 2018, Judge Pitman issued an order approving the settlement for an unpaid wage case being defended by F&W.  The details are discussed below.

Long Island employment lawyers Famighetti & Weinick PLLC often represent workers who are not paid proper overtime or minimum wage.  But, we also defend employers in unpaid wage cases.

In this case, F&W represented a private school which provides instruction for nurses aides.  A former employee alleged, among other things, that the school did not pay her overtime for hours for worked above 40 in a week and that the school did not pay her at all for other hours worked.  At a conference before the presiding District Court Judge, Long Island employment lawyer Matthew Weinick presented a strong defense to the claims based on a recent case decided the Second Circuit Court of Appeals, New York’s federal appellate court.  The judge suggested that instead of spending time and money on a motion which may dismiss the case, the parties should meet with the magistrate judge to see if the case could be settled.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on, among other reasons, the employee’s race, religion, national origin, and sex.  Title VII also protects employees from retaliation by their employer for reporting or opposing the employer’s discriminatory actions.  Before bringing an employment discrimination case, however, the employee must be able to show that he or she is in fact an employee and not, for example, an independent contractor.  Today’s Long Island employment discrimination blog discusses the Second Circuit Court of Appeals case, Knight v. State University of New York Stony Brook, which addressed the question of how to determine whether an individual is an employee.

The Discriminatory and Retaliatory Conduct

Anthony Knight is African American and was a member of an electrician’s union.  The union had agreed to provide electricians to Stony Brook, when Stony Brook needed additional workers for large construction projects.  In April 2011, the union sent Knight to help Stony Brook with a project.  While working at Stony Brook, Knight found “racist” graffiti in the bathroom and reported it to his foreman.  After the report, Stony Brook terminated Knight’s work.  Knight sued Stony Brook alleging the graffiti was discriminatory and the termination was taken in retaliation for his complaint about the graffiti.  The court dismissed the discrimination claim, but the retaliation claim went to trial.

As Long Island employment lawyers, we keep up to speed with developments in employment law.  Equally important though, is staying updated with questions of procedure.  On January 22, 2018, the United States Supreme Court issued a decision relating to the statue of limitations for state law claims which are initially filed in federal court, but later dismissed.

Supplemental Jurisdiction: State Law Claims Brought in Federal Court

Employment laws are created by federal, state, and sometimes local laws.  In other words, when an employee faces sexual harassment in the workplace (for instance) the employee’s claim may be brought pursuant to Title VII which is the federal workplace anti-discrimination law.  But, in New York, the employee may also bring the claim under the New York State Human Rights Law and if the employee worked in New York City, the claim may be brought under the New York City Human Rights Law.  Since the employee is using a federal statute, as well, the entire case may be filed in a United States District Court.  Generally (and without discussion of the exceptions which may apply) cases involving just claims arising under state law cannot be heard in a federal court because the federal courts are courts of limited jurisdiction.  But if state and federal claims are related, a federal court can exercise supplemental jurisdiction and the court can hear all the claims at once.

On December 20, 2017, the United States Congress passed a tax bill which changed many provisions of the United States tax code.  Many of those most prominent changes received extensive coverage by the press.  One smaller provision, however, did not receive much attention, but has the potential to affect sexual harassment cases in a significant way.  Today’s Long Island employment law blog discusses the so-called “Weinstein” provision in the new tax bill.

Sexual Harassment Cases

For many reasons, victims of sexual harassment are often reluctant to bring their stories to light and to seek justice for the abuse they faced.  One of the reasons victims are reluctant is that sexual harassment cases are often he said, she said, so victims are afraid that they won’t be believed.  Perhaps a more troubling reason is that victims are worried that by making their claims public, their careers and/or reputations will be hurt.

With many states declaring flu epidemics and with the spread of other communicable diseases, many employers, particularly in the health care industry, are requiring employees to receive vaccinations.  Employees rightfully have concerns about being forced to receive a vaccination and so a common question is whether employers can force employees to be vaccinated against the flu or other diseases.  Like most legal questions, the answer is not so simple.  Today’s Long Island employment law blog explores the issue of whether employers can require employees to be vaccinated.

Employment at Will

The starting point to many employment law questions is the fact those most states, including New York, are employment at will states.  Employment at will means that employers can hire or fire employees for nearly any reason at all, as long as the reason is not unlawful.  Unless the employee was able to negotiate a contract which sets the terms of employment, employees generally remain at will so employers are free to impose all kinds of conditions on employment. One of the conditions an employer may place on an employee is that the employee be vaccinated against diseases, such as the flu.  An employee may refuse to accept the vaccination, but in most cases, because the employee is “at will” the employer may fire the employee for not complying with a vaccination policy.

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