Long Island Employment Law Blog

August 23, 2017

Solicitation of Employment is First Amendment Speech

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.

July 29, 2017

Qui Tam Whistleblower Case

by Famighetti & Weinick

The False Claims Act allows an individual to file a lawsuit on behalf of the government, against another individual or company who has defrauded the government. This type of lawsuit is called a qui tam action. If the person bringing the lawsuit wins, he or she may be entitled to receive up to 30% of the recovery. Additionally, the False Claims Act protects whistleblowers from retaliation of their employers. For example, an employer cannot fire an employee because of a lawful act the employee engaged in to prevent the government from being defrauded.

On July 27, 2017, New York’s Federal appellate court decided a case which discusses a qui tam action and the retaliation provision of the False Claims Act.

The first issue in Fabula v. American Medical Response, Inc., was whether the plaintiff’s complaint satisfied the particularity standard.

July 28, 2017

Labor Law and Discrimination

by Famighetti & Weinick

The National Labor Relations Act (the NLRA) is a federal law that, among other things, protects the rights of employees and encourages collective bargaining among employees for better terms and conditions at work. The NLRA also imposes a duty of fair representation which means that labor unions have an obligation to represent its employees fairly and without discrimination. Its New York state counterpart is the New York State Human Rights Law (NYSHRL).

The National Labor Relations Act vs. The New York Human Rights Law

On July 25, 2017, in Figueroa v. Foster, the highest federal court in New York had to decide whether the NLRA preempts the NYSHRL for discrimination claims filed by a union member against a labor union when the labor union is acting as a collective bargaining representative. In other words, does the federal NLRA law take control over its state counterpart or can both the federal law and state law protect employees?

July 26, 2017

FMLA Retaliation Standard Relaxed

by Famighetti & Weinick

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 of the employee or their family.

FMLA Retaliation and Interference

On July 19, 2017, in Woods v. START Treatment & Recovery Centers, Inc., the highest federal court in New York decided a case relating to the FMLA and answered two important questions.

July 17, 2017

Discrimination by Religious Employers

by Famighetti & Weinick

Employers are prohibited from discriminating against its employees based, among other things, on race, gender, religion, national origin, disability, age, sexual orientation, or familial status. Employers are also prohibited from retaliating against its employees. This means that an employer cannot punish an employee for engaging in legally protected activity. For example, if an employee complains either to a supervisor or to an outside agency (such as the Equal Employment Opportunity Commission) about workplace discrimination and the employee subsequently suffers a negative employment action as a result of making the complaint, the employer has unlawfully retaliated against its employee.

However, the law is filled with exceptions. One of the exceptions to employment discrimination and retaliation is called the “ministerial exception.” This exception was recognized by the United States Supreme Court in 2012 in the Hosanna-Tabor case where the Court found that a fourth grade teacher, who taught mainly non-religious subjects at a religious school, could not sue her employer for retaliation.

The Ministerial Exception in Employment Discrimination Cases

July 5, 2017

FMLA Leave Case

by Famighetti & Weinick

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.”

June 23, 2017

Independent Contractor or Employee

by Famighetti & Weinick

Whether a worker is an independent contractor or an employee is a question with important implications. Employers who misclassify their workers may be liable for workers’ compensation penalties, wage and overtime claims, and unemployment insurance penalties. Simply paying an employee on a 1099 does not mean that the worker is an independent contractor.

The ride sharing company Uber classified their drivers as independent contractors. Like many other businesses that call workers independent contractors, by doing so, the company did not have to pay costly employee benefits. On June 9, 2017, an Administrative Law Judge determined that three Uber drivers were employees, not independent contractors. Today’s employment law blog discusses the Uber case.

The Blurry Line Between Independent Contractor and Employee

June 19, 2017

Federal Retaliation Lawsuits

by Famighetti & Weinick

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.

June 14, 2017

Fair Workweek in New York City

by Famighetti & Weinick

On May 30, 2017, New York City passed a new law that will affect the retail and fast food industry in the city. This new law, which will be effective on November 26, 2017 includes five separate bills and is part of the Fair Workweek legislation package signed by Mayor Bill De Blasio.

Nearly one in five Americans have an unstable work schedule. Employees in the retail and fast food industry often have unpredictable schedules which make it difficult for them to seek additional employment, find care for their children, and further their education. This new law intends to provide these workers with not only more stability in the workplace but also in their personal lives. Although San Francisco and Seattle have passed similar laws, New York is the largest city to make such changes.

New York City Regulates Fast Food Workers’ Schedules

June 10, 2017

First Amendment School Case Decided

by Famighetti & Weinick

The First Amendment protects many important rights, including the right of assembly. Like other First Amendment rights, however, this right is not absolute. On June 8, 2017, the Second Circuit Court of Appeals decided a case about how far a public school can go in limiting one’s right of assembly.

JD WAS BULLIED IN SCHOOL

In Johnson v. Perry, decided by the Second Circuit Court of Appeals on June 8, 0217, the plaintiff Johnson’s daughter, “ JD,” wanted to play basketball for the school’s junior varsity team instead of the varsity team because she felt she was being treated unfairly and wanted more playing time. After the change, Perry, the school principal, repeatedly took JD out of her classes and tried to bully JD into staying on the varsity team. When JD’s parents found out Perry was bullying JD, they requested a meeting. The meeting turned out to be a screaming match between Johnson and Perry. A few days later, Johnson received an email from the school informing him that he was banned from the school premises, including sporting events both on and off campus, because he was considered a threat to the staff and students. Johnson brought a section 1983 action which allows lawsuits for violations of constitutional rights. The main issue in the case was whether Perry had violated Johnson’s First Amendment right of assembly.