Better late than never. Long Island employment law firm Famighetti & Weinick PLLC is excited to announce the addition of team member, Elisa. Elisa joins the firm as our paralegal. Although we’re approaching Elisa’s one year anniversary, we’ve all been so busy that we weren’t able to write an official welcome blog, until today.

Elisa’s value to the firm and to our clients is self-evident. Before her hire, Elisa studied criminal justice at Excelsior College. Her coursework included instruction about the United States court system, immigration, juvenile justice, criminal law, and ethics, coursework which aligns with the firm’s values of providing legal services to vulnerable segments of the population.

Elisa also received her paralegal studies certificate from Hofstra University. At Hofstra, Elisa learned skills which she puts to work everyday, including research and writing, and civil litigation procedures. Her substantive law classes included contracts, real estate, family law, business organizations, and Wills, Trusts, and Estates.

Employees facing discrimination in the workplace must usually rely on statutes to sue their employers. Governments, however, must operate within the boundaries of the Constitution, including when the government acts as an employer. So, employees who work for a government, such as a state, town, city, or special district, may be able to bring legal claims against their employer when the government violates the employees’ Constitutional rights. Today’s Long Island employment law blog discusses a recent appellate court decision in New York which raises the bar for employment related claims against municipalities.

Elizabeth Naumovski worked for SUNY Binghamton as an assistant basketball coach. Soon after she started working, rumors circulated that Naumovski was having an “inappropriate relationship” with “J.W.,” a gay female-student athlete.  The rumors continued into the next academic year, so the school responded by imposing restrictions on interactions between students and coaches.

Yet, the rumors allegedly continued to persist into the next year. In early February 2010, the defendant head coach and athletic director spoke by phone and agreed to terminate Naumovski, allegedly because Naumovski demonstrated favoritism to some students.

No constitutional right is absolute. In the context of the First Amendment and free speech, the law regulates speech which defames another person. On Tuesday, August 6, 2019, in Palin v. The New York Times Company, the United States Court of Appeals for the Second Circuit decided a case involving the intersection of politics, gun violence, and free speech. The decision is ultimately a ruling about a question of procedure, but the facts and circumstances which led to the decision are relevant in today’s political climate, and the procedural issue is relevant to those litigating civil cases in New York’s federal courts. Today’s Long Island civil rights blog discusses Sarah Palin’s defamation lawsuit against the New York Times.

On January 8, 2011, Jared Loughner killed six people and injured thirteen others while opening fire at a political rally for Democratic Congresswoman Gabrielle Giffords in Tucson, Arizona. Giffords was seriously wounded during the attack. Before the attack, Sarah Palin’s political action committee, “SarahPAC,” produced a map that displayed images of a crosshairs target over specific Democratic congressional districts. For some, this evoked images of violence.

Among those pictured on the map was Congresswoman Giffords’ district. Though the map had been publicized during the earlier political controversy surrounding the Affordable Act, in the wake of the Loughner shooting, speculation swirled that the shooting was connected to the crosshairs map.

The phrase “sexual harassment” has certainly been in the news lately. But, it may be hard to discern when an individual has been a victim of sexual harassment in the workplace, at least in the eyes of the law. The United States Supreme Court has established standards for courts to follow when analyzing sexual harassment claims, yet it is still difficult for judges around the country to determine whether an employer has participated in unlawful activity.

The Supreme court has created a high standard under federal law that plaintiff-employees must clear in order to prove that they were victims of sexual harassment. Fortunately for New York employees, on June 19, 2019, the New York State Legislature approved a bill (S.B.6577) that offers more workplace protections for workers. Below are some of the amendments the bill seeks to make to New York State sexual harassment laws.

Elimination of the Faragher-Ellerth Defense

On June 4, 2018, we blogged about a federal lawsuit concerning whether President Trump’s Twitter account invokes First Amendment concerns. We wrote about a federal District Judge’s decision in the lawsuit which held that the President’s twitter account is a public forum subject to First Amendment protections. Today, the Second Circuit Court of Appeals reviewed the District Court’s decision. What did the appeals court rule? Today’s civil rights blog discusses the decision.

In Knight Institute v. Trump, a group of individuals sued President Trump. The individuals criticized the President on Twitter, then they were blocked from the President’s personal Twitter account. The individuals alleged that the President’s actions constituted a violation of the First Amendment’s free speech guarantees. The Southern District of New York agreed.

On appeal, the Second Circuit considered whether President Trump’s use of Twitter’s blocking function constituted conduct in violation of the First Amendment. The government argued that the Presidents use of his personal Twitter account (@realDonaldTrump), is private conduct. Private conduct is not regulated by the First Amendment whereas government conduct is. Indeed, the government noted that the President established his Twitter account in 2009, long before he became president.

Title VII of the Civil Rights Act prohibits employers from discriminating and retaliating against employees. Employers who violate Title VII may be subject to a lawsuit in federal court. Before filing a lawsuit, however, employees who believe their employer has violated the law must file a charge of discrimination with the Equal Employment Opportunity Commission or EEOC. But, is this rule a jurisdictional requirement or a procedural rule? Courts across the country have debated this, but on June 3, 2019, the Supreme Court of the United States settled the question. Today’s Long Island employment law blog explains the difference in the distinctions, SCOTUS’s decision, and the implications.

Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Further, Title VII prohibits employers from retaliating against employees who exercise their rights under the law. As part of Title VII, Congress included a requirement that aggrieved employees must file a charge of discrimination with the EEOC or local discrimination enforcement agency, before filing a lawsuit in federal court. Congress, however, did not expressly state whether this rule is a jurisdictional requirement or a procedural requirement. Because of this, federal courts across the country have been split on whether the rule is the latter or the former.

What’s the difference between a jurisdictional requirement and a procedural requirement? It’s not merely an academic point. Jurisdiction is a rule which allows a federal court the authority to hear a case. Jurisdiction can never be waived. In other words, if a court does not have authority to hear the particular kind of case before it, a party can raise the issue at any point during the litigation. In fact, a court may raise the issue on its own and may dismiss a case if it decides, at any point, that it does not have jurisdiction to hear the matter.

On May 1, 2019, United States District Court Judge Joan M. Azrack issued an ordered in a wage theft case filed by Long Island employment lawyers Famighetti & Weinick, PLLC in the Eastern District of New York. The case alleged that a Long Island food delivery service failed to pay overtime wages to two employees and failed to provide proper and legal wage statements under New York Law.

The lawsuit was served on the defendant corporation and an owner, but the defendants refused to defend themselves. Accordingly, the firm asked the court to enter a default judgment against them. As part of the motion, partner Matt Weinick set forth the applicable laws under the Fair Labor Standards Act and New York Labor Law concerning overtime pay. Weinick discussed how the affidavits submitted by the two employees established that the employer violated the wage and hour laws.

Next, the firm calculated the damages owed to each employee. Weinick set forth the hours each employee worked and how much each was owed for the overtime worked. Weinick also set forth the statutory damages the employer owed for not providing proper wage statements and the amount of liquidated damages allowed for under the FLSA and NYLL.

Earlier this month, we wrote about the intersection of medical marijuana use and employment discrimination laws.  Based, in part, on this conflict, the New York City Council passed a law which would prohibit New York City employers from testing prospective employees for marijuana as part of the employer’s pre-hiring procedures. Today’s Long Island employment law blog discusses this new law.

In 2014, New York State passed the Compassionate Care Act which legalized marijuana for medical use. In early April 2014, we blogged about the complications which can arise when an employee lawfully uses medical marijuana, but the employer tests employees for marijuana use. A New Jersey court ruled that an employer may have engaged in disability discrimination when the employer terminated the employee after he tested positive for marijuana, which he used to treat a medical condition.

The New York City Council acknowledged that New York City residents may lawfully use marijuana to treat medical conditions. It further concluded that at least 34 states across the country allow citizens to use marijuana either for recreational and/or medical purposes. The Council determined that it would be unjust to allow New York City employers to test employees for the presence of marijuana, when the employee may have used it legally.

In employment discrimination claims, courts generally apply one of two methods of analyzing the claims. In a mixed-motives analysis, plaintiffs must show the employer was motivated, at least in part, by a discriminatory animus. This is considered a more lenient standard. In but-for causation, the plaintiff must show that discrimination was the but-for cause of the employment action taken against the employee. This is considered a stricter standard. On April 18, 2019, the Second Circuit Court of Appeals, New York’s highest federal court, ruled that but-for causation is the appropriate legal standard applicable to disability discrimination claims. Today’s Long Island employment law blog discusses the decision.

In Natofsky v. City of New York, the plaintiff alleged disability discrimination and retaliation against the City of New York. He brought his claims under the Rehabilitation Act. The trial court applied a standard requiring the plaintiff to show that discrimination was the “sole” reason that the employer took a adverse actions against him. Applying this standard, the trial court dismissed the employee’s claims, then the employee appealed.

On appeal, the Second Circuit first looked at whether the employee was required to show that discrimination was the sole reason for the acts taken against him. The court determined that the Rehabilitation Act incorporates the standards from the Americans with Disabilities Act (ADA). So, although the Rehabilitation Act indeed uses language indicating discrimination must be the sole reason, subsequent amendments to the Act made clear that courts were to look to the ADA for the appropriate standard.

For federal workplace discrimination claims in New York, employees must file a charge of discrimination with the EEOC within 300 days of the discriminatory act in order to preserve their right to sue the employer. But, oftentimes for hostile work environment claims, the employee doesn’t reach a breaking point until after enduring perhaps months or years of abuse. Does the employee lose the right to sue based on acts which occurred before the 300 day filing period? On April 8, 2019, New York’s federal appellate court answered that question, and clarified several other important points of law concerning employment cases.  Today’s Long Island employment law blog explains.

For an employee to have a hostile work environment claim against an employer, the employee must be able to show the employer’s abusive conduct was either severe or pervasive. When showing pervasive conduct, the employee must show many hostile and abusive acts took place frequently over a period of time. But, employees must file charges of discrimination within 300 days of the discriminator act.

In Davis-Garett v. Urban Outfitters and Anthropologie, the plaintiff alleged she was subjected to a hostile work environment at three different store locations and over the course of more than a year, ending in September 2013.  But, the plaintiff did not file a charge of discrimination with the EEOC until December 2013. The trial court ruled that the everything that happened from before 300 days before the EEOC charge was filed, would not be considered.

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