Famighetti & Weinick PLLC are Long Island employment lawyers. We receive many calls each week from potential clients and we hear a wide variety of questions from them. One question we hear a lot is “I thought I can’t sue my employer?” Why do employees ask this question and what’s the answer? Today’s Long Island employment law blog explores this issue.

Personal injury law applies when employees are hurt or injured in the workplace. In New York and on Long Island, workers compensation law covers situations where employees are hurt at work.  Under workers compensation, employees generally cannot sue their employers for workplace injuries.  Because many people are familiar with the concept of workers compensation, they believe that the rule prohibiting lawsuits based on workplace injuries applies to all workplace matters.

But, workers compensation does not act as a prohibition against all lawsuits relating to the workplace.  Even in the world of personal injury, sometimes employees can still pursue lawsuits based on injuries incurred in the workplace.  For example, employees injured from construction site accidents may be able to sue the property owner or a general contractor. Further, employees injured in a car accident may be able to sue the other driver.  Similarly, if a worker is injured on property which does not belong to the employer, the worker may be able to sue the property owner.  Also, New York’s scaffolding law protects employees working with ladders, or otherwise working at heights.  Before concluding that you cannot recover for your workplace injuries in court, it’s best to consult with an experience employment lawyer or a personal injury lawyer.

The Long Island employment lawyers at Famighetti & Weinick PLLC obtained a decision that probable cause exists to believe that a national investment bank discriminated and retaliated against their client.  The case will be scheduled for a public hearing at the New York State Division of Human Rights.

The age discrimination and retaliation case was brought on behalf of one of the bank’s traders. According to the allegations in the case, the trader had been successfully working on Wall Street for decades.  Then, co-workers and supervisors began subjecting the trader to a hostile work environment based on his age.  The abusive conduct consisted of age based jokes and comments, some of which were documented in e-mails.  The complaint filed with the New York State Division of Human Rights detailed other improper hostile workplace conduct directed at the trader based on his age.

Further, the trader complained about the age discrimination on multiple occasions, also at times in writing. Despite these complaints, the hostile work environment continued.  The trader opposed other unlawful discriminatory conduct in the workplace and after one such time, a supervisor threatened to run the trader out of the company.  Indeed, soon after these complaints, the bank issued a poor performance evaluation to the trader and removed from him many of his top accounts.  The complaint alleged that the reasons the bank gave the trader for removing the accounts were demonstrably untrue. Ultimately, the bank terminated the trader’s employment.

Are firefighters of small municipal fire departments covered by the Age Discrimination in Employment Act (ADEA)? On November 6, 2018, the United States Supreme Court answered that question the case Mount Lemmon Fire District v. John Guido. Today’s Long Island employment law blog takes a closer look at the decision and also discusses whether the decision offers a glimpse into how the new makeup of the court may affect employment cases.

The Mount Lemmon Fire District is a municipal fire department in Arizona. Purportedly because of a budget shortfall, the District laid off two employees, John Guido and Dennis Ranking, ages 46 and 54, respectively. The firefighters sued alleging their terminations violated the ADEA because the decisions were based on their age. The District moved to dismiss arguing that the ADEA only covers employers who have more than 20 employees, which the District did not. Ultimately, SCOTUS was asked to decide the issue.

Writing for the court, Justice Ginsburg noted that the ADEA was enacted to prevent “arbitrary age discrimination” in employment. She noted further that Congress initially excluded governmental agencies and required that employers employ a threshold number of employees for the law to apply to them.  But, in 1974, Congress amended the ADEA to specifically define employer as including “a State or political subdivision of a State.”

The New York City Council has passed bills which will amend the New York City Human Rights Law. The bills concern lactation in the workplace for nursing mothers. Today’s New York employment law blog discusses these changes.

Federal, state, and local laws regulate discrimination in the workplace based on an employee’s sex and pregnancy. The New York State Labor Law specifically addresses lactation in the workplace. But, the New York City Council has expanded on those protections via bills 879-A and 905-A, part of what is known as the Mother’s Day Legislative Package.

According to the bill’s summary, the law covers New York City employers with 15 or more employees. It requires those covered employers to provide lactation rooms and refrigerators for employees to express and store milk.  The rooms must be in a “reasonable proximity” to the employee’s work areas. Lactation rooms must be sanitary and cannot be a restroom. Further, the rooms must provide privacy, provide an electrical outlet, and have a chair and surface area to place items including a breast pump. The room must also have access nearby to running water.

On October 9, 2018, new laws concerning sexual harassment in the workplace will take effect in New York State. Included in these changes are coverage for independent contractors under the New York State Human Rights Law, training requirements for employees, and employee handbook and policy requirements. Today’s Long Island employment law blog looks at some of these changes.

Expansion of the New York State Human Rights Law’s Coverage

The New York State Human Rights Law is the primary source of state employment discrimination laws in New York. The HRL prevents many forms of discrimination in the workplace including discrimination based on an employees age, race, gender, national origin, sexual orientation, sex, religion, disability, or criminal conviction status.  The law, however, generally applied to only employees.  In other words, independent contractors, vendors, or others, may not have been protected from sexual harassment in a workplace if the individual was not an employee of that particular employer.

Unpaid wage and overtime claims are on the rise across New York. There is no question that companies can be legally on the hook for lawsuits alleging the business did not pay its employees properly. But, can corporate shareholders and owners be personally liable, also? Today’s Long Island employment law blog discusses this issue, including a recent decision from New York’s federal appellate court.

The New York Labor Law (NYLL) and the federal Fair Labor Standards Act (FLSA) both require that employers pay minimum wage and overtime to non-exempt employees. But, who is an employer? Is it just the corporation or can individuals also be considered employers. In the Second Circuit Court of Appeals case, Tapia v. Blch 3d Ave., LLC, the court revisited this question.

In Tapia, the plaintiffs alleged, among other things, that the defendants failed to pay overtime, minimum wage, spread of hours pay, and that they failed to provide wage statements to the employees. After a trial, the District Court judge found in favor of the plaintiffs on all the counts. In addition to a corporation, two individual defendants who owned the corporation were also named as defendants.  The District Court determined that one defendant, Ajit Bains, was personally liable, but that another individual defendant, Satinder Sharma, was not liable. The plaintiff appealed that decision.

Long Island Employment Lawyer Matthew Weinick has been appointed to the Pro Bono mediation panel of the United States District Court for the Eastern District of New York. Participation on the panel allows Weinick to assist unrepresented “pro se” parties in settling their cases during court ordered mediation sessions.

Mediation is a form of alternative dispute resolution. Mediation offers the opportunity for parties to a lawsuit to meet in a confidential mediation session where an experienced and certified mediator helps the parties reach an agreement to settle the case. Mediation has many benefits including saving parties the time, expense, and uncertainty of a lawsuit, confidentiality, and the ability to craft a creative solution, including the possibility of ending the lawsuit with terms which may not be available from a court judgment.

The EDNY’s mediation program involves court certified mediators and pro bono attorneys. The certified mediators act as neutral parties at the mediation. Mediators listen to both sides’ arguments about the case and then help the parties reach an agreement to resolve the dispute. Although not always successful, mediation is useful tool and the EDNY has seen many cases successfully resolved by using its mediation program.

SuperLawyers Magazine has published its annual New York Metro Lawyers List. The SuperLawyers list includes Long Island employment lawyers Peter J. Famighetti and Matthew Weinick. 2018 marks the seventh year that Weinick has been listed on the Rising Stars list and the fifth year that Famighetti has been included on the SuperLawyers list.

According to SuperLawyers, the selection process uses a “patented” system including an evaluation of 12 indicators.  Using this system, less than 5% of the lawyers in New York State are included on the SuperLawyers list.

The Rising Star star list selects lawyers using a similar system, looking at lawyers who are either under the age of 40 or who have been practicing for less than 10 years.  Less than 2.5% of New York State lawyers are selected for the  Rising Star list.

New York City just made it easier for employees to take time off from work. In 2017, the City passed a series of laws known as the Fair Workweek laws which were intended to end abusive scheduling practices that affect workers in New York City, particularly workers in the retail and fast food industry. Just about one year after unveiling its Fair Workweek legislation package, New York City also made some hefty changes to the law to provide eligible employees with more comprehensive protection.

New York City’s Temporary Schedule Change Law became effective on July 18, 2018, and requires most New York City employers to allow eligible employees to make up to two temporary schedule changes (or requests for unpaid time off) per year as long as the change is related to a “personal event.”

In addition to requesting time off, employees covered by the Law may also ask to work remotely, swap shifts, or adjust shifts in other ways that do not necessarily involve taking time off. Generally, “eligible employees” include New York City employees who work over 80 hours per year and who have worked for the employer for 120 days or more.

Courts can only hear cases over which they have jurisdiction. For example, a family court could hear a divorce case, but not a breach of contract case. A surrogate’s court in New York can probate a will, but it cannot award damages in a personal injury case. Today’s Long Island employment law blog discusses the jurisdiction of federal courts and a recent appeal’s court decision relating to jurisdiction.

A court’s jurisdiction is generally considered either general or specific. In New York, the Supreme Court (which is actually the lowest level court) is generally a court of general jurisdiction. This means Supreme Courts can hear nearly any type of case. For purposes of efficiency however, the state created other courts of specific jurisdiction. As noted above, family courts, surrogate’s courts, and small claims courts were created to hear specific types of cases so that the Supreme Court can hear other matters without its docket being clogged.

Federal courts are, by the very nature of the Constitution, courts of limited jurisdiction. Since the federal government only has the power to regulate those areas granted by the Constitution and all other areas of regulation and lawmaking are reserved to the states, federal courts cannot hear all types of cases. Generally, federal courts can hear cases in one of two ways, either by diversity jurisdiction or federal question jurisdiction. Diversity jurisdiction exists when the parties live in different states. For example, if Jim lives in New York and Joe lives in New Jersey and Jim was injured in a car accident with Joe, Jim could sue Joe in a federal court. But, if Jim and Joe both live in New York, Jim would have to sue Joe in a New York State Supreme Court.

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