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On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act.  The law provides for, among other things, leave for employees related to the coronavirus and becomes effective 15 days from March 18.  The act provides emergency sick leave, emergency family leave, and tax credits. Like the New York law we blogged about earlier this week, the law’s application varies depending on employer size.  The specifics of the law are discussed below.

Sick Leave

The law provides for paid sick leave for some employees.  Preliminarily, this portion of the law applies only to employers with less than 500 employees.  As to employers who meet this number requirement, employees may qualify for paid sick leave if they meet any of these requirements:

In these uncertain times, New Yorkers are struggling to find reassurance wherever possible. In the context of employment, employees have been facing questions about job security, income security, and how to balance stay-at-home instructions coming from the government and employers’ attempts to keep their businesses running.

On March 18, 2020, New York Governor Andrew Cuomo announced that New York State would be enacting laws to provide for leave and paid sick leave for coronavirus related work absences.  Today’s Long Island employment law blog discusses the law’s provisions.

Governor Cuomo issued a press release detailing the specifics of the new leave law.  Basically, the law provides for either paid leave or unpaid leave with job security, depending on factors such as employer size and revenue, and the reason for the employee’s leave.  The specifics are detailed below:

As employment law attorneys, our email and social media is flooded with information from fellow employment lawyers about how employers should handle the coronavirus pandemic. Today’s Long Island employment law blog discusses some issues relating to how employees might handle the crisis.  Please note, this blog is informational only and should not be relied upon as legal advice, and certainly not medical advice.  The information below should be considered “food for thought.” If you have specific questions about your employment situation, we encourage you to call our lawyers, who remain available by phone throughout the crisis.

1. Listen to advice from government and medical authorities

First and foremost, pay attention to guidance given by officials from the government and from medical authorities.  Leading medical authorities include the CDC and WHO, but local health departments are also issuing guidance.  Best practices almost universally include washing hands, avoiding close contact with others, and proper hygiene including coughing and sneezing best practices. If you must report to work, continue to follow these instructions.

Resign or you will be fired. This ultimatum is often posed to employees. Employees in this position have to weigh many considerations, including the effect of the black mark of a termination, potentially waiving certain rights by resigning, and other effects to employment benefits based on how the separation from employment is categorized.

Sometimes, the decision can be easier for employees. Employees who are at-will or in probationary assignments which can be terminated for any reason, have no job protections. Thus, when an employer delivers the resign or be fired ultimatum, it truly is a threat that the employee will be fired, and the employer may genuinely be offering the employee a benefit of leaving without the scar of a termination on the employee’s record.

Other times, employees enjoy job protections and cannot be fired without a hearing or some level of process. This is particularly true with civil service employees in New York.  It is quite common for municipal employers to offer permanent civil service employees the option of resigning in lieu of a termination hearing. This provides the employee the benefit of leaving without a record of termination (an important benefit for civil service workers) and gives the employer the benefit of certainty of separation. Indeed, when a termination proceeding proceeds in good faith with a neutral decision maker, the outcome of the hearing is not foreseeable for either party.

On March 6, 2020, the United States Court of Appeals for the Second Circuit, in New York, handed a gift to employees.  The Court reviewed issues related to (1) hostile work environment claims and (2) the standard for retaliation claims.  On both issues, the Court’s decision came out highly favorable for employees.  Today’s Long Island employment law blog discusses the decision in Rasmy v. Marriott International, Inc.

Hostile Work Environment Claims are Fact Intensive and Should Not Be Decided on Summary Judgment

Under federal law, a hostile work environment claim must show, among other things, that the employee was subjected to abusive and unwelcome conduct based on the employee’s membership in a protected class.  Further, the conduct must be severe or pervasive such that it altered the terms and conditions of the employee’s employment.  Notably, New York law expressly eliminates the severe or pervasive standard, so that showing is not necessary when suing under state law, but still must be met when suing in New York, but under federal law.  The Rasmy decision addresses the requirements (1) conduct based on the employee’s protected class and (2) the terms and conditions of employment. These points are discussed below.

As coronavirus fears continue to spread throughout the country, workplaces are struggling to decide how to prevent possible outbreaks in their work forces.  Indeed, Seattle based tech giants Amazon, Google, Facebook, and Microsoft are closing offices and asking employees to work from home.  But, discussions about employees’ medical conditions necessarily invokes concerns about disability discrimination statutes, such as the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

The federal government’s Equal Employment Opportunity Commission (EEOC) has issued guidance to help employers navigate the tricky waters of combating the spread of coronavirus while remaining compliant with anti-discrimination laws.  Today’s Long Island employment law blog discusses the EEOC’s guidance.

Preliminarily, the EEOC noted that while disability discrimination laws remain in effect and employers must follow these laws, the laws do not stop employers from following the CDC’s guidelines for employers.  The CDC’s guidelines include encouraging sick employees to stay home, separating sick employees upon arrival to the workplace, and reminding employees to use appropriate proper hygiene.

The news headlines are inundated with buzzwords such as sanctuary cities, illegal aliens, and immigration laws.  Indeed, “illegal aliens” and immigration issues are at the forefront of political issues confronting the nation.  One of the most sensitive areas of employment law which we see at our Long Island employment law firm is the employment of illegal aliens.  On March 3, 2020, the United States Supreme Court issued a decision which touches on three areas of law: immigration, employment, and criminal law.   Today’s Long Island employment law blog discusses the decision reached in Kansas v. Garcia.

Federal immigration law makes it unlawful for an employer to hire an alien “knowing” that the individual is not unauthorized to work in the United States.  But, federal law does not prohibit the employment of illegal aliens.

When hiring employees, immigration law requires employers to attest that they have verified the employee is not an unauthorized alien on form I-9.  To do so, employers must review approved documents such as a passport.  Failure to follow this verification law may result in civil and criminal penalties.  Per the law, employers should make and retain copies of the I-9 and the supporting documents provided by the employee.

Long Island litigation attorney Peter Famighetti obtained a monumental victory for his client, a small business owner.  Famighetti defeated a plaintiff’s attempts to restrict the way the business owner operated his business and received profits from the business. Today’s blog discusses the dispute, Famighetti’s work to obtain a favorable result for his client, and the court’s decision.

As part of the firm’s general litigation portfolio of cases, Peter Famighetti represents the owner of a social media brand and who is a defendant in a lawsuit.  In the lawsuit, the plaintiff alleges that he is a 50% owner of the social media brand and that Famighetti’s client terminated and excluded the plaintiff from the partnership.

Upon filing the lawsuit, the plaintiff also sought an immediate court order enjoining the defendant from posting certain content on behalf of the brand which the plaintiff alleges could violate the social media platform’s policies. In the same application, the plaintiff sought a court order appointing a temporary receiver to receive all future assets of the brand. Famighetti appeared in court to argue against the application and submitted opposition papers.

The Fair Labor Standards Act requires that employers pay to employees minimum wage and overtime.  When employers violate the FLSA’s requirements, employees may sue the employer to recover the unpaid wages.  Since 2015 when the Second Circuit Court of Appeals decided Cheeks v. Freeport Pancake House, courts have been required to scrutinize agreements settling FLSA cases. Courts generally looked at whether the agreement was fair and reasonable, including as to the amount of attorneys’ fees awarded.

The Cheeks case provided general guidelines about how Courts should review agreements, but uncertainty remained.  Parties have continued to litigate the expansiveness of Cheeks and Judges have struggled to understand their roles.  On February 4, 2020, Judge Chin, writing for the Second Circuit, issued a decision further clarifying court’s responsibilities concerning FLSA settlements. Today’s Long Island employment law blog discusses the decision in Fisher v. SD Protection Inc.

In Fisher, the employee was hired as a “chaperone,” responsible for monitoring the halls in a hotel when student tour groups stayed.  As alleged by the employee, the employer failed to pay him overtime for the nine hours of overtime he worked per week.  Additionally, the employer did not provide to him paystubs, in violation of New York’s Wage Theft Prevention Act (WTPA).

The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with investigating and prosecuting claims of discrimination arising under federal law.  Generally, federal law prohibits workplace discrimination on the basis of sex, race, national origin, religion, color, disability, age, and genetic information.  Further, federal law prohibits employers from retaliating against employees who report or oppose unlawful workplace discrimination.

Before an employee may sue an employer for discrimination or retaliation (arising under federal law) employees must file a charge of discrimination with the EEOC.  In January 2020, the EEOC published data reporting the number of charges filed across the United States and its territories in 2019.  The publication shows the number of filings broken down by state and type of charge, and percentage of charges as a total of all filings and as a percentage of all filings within the state. Today’s Long Island employment law blog discusses the EEOC’s report.

New York saw a total of 3,220 EEOC charge filings (or 4.40% of all charges filed in the United States). This shows a continued a downward trend of EEOC charges in New York. As pictured in the graph below, in 2016, New York saw 3,740 total EEOC filings which steadily decreased to 3,220 last year.

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