In 2017, the #MeToo movement trended across social media and in the news. Generated from reports of rampant sexual harassment over the course of many years in Hollywood, the social media hashtag #MeToo became popular as a way for victims to come forward with their stories and for others to show their support for victims and for putting an end to sexual harassment and sexual abuse.

At the heart of the #MeToo movement is the fact that many victims are taken advantage of by harassers who are in a position of power over the victim. The harasser uses that power position to not only assert the abusive conduct, but that power often intimidates the victim into keeping the harassment or abuse a secret, for fear of retribution from the harasser. The #MeToo movement inspired victims to come forward, who had previously remained silent the harassment.

#MeToo is, of course, a social media hashtag. According to CBS News, as of October 24, 2017, #MeToo had been “tweeted” 1.7 million times across 85 countries – and that was early on in the movement.

The federal Fair Labor Standards Act  (“FLSA”) and the New York State Labor Law (“NYLL”) require employers to pay employees overtime whenever they work over 40 hours in a workweek. The overtime pay rate, under both laws, is 1.5 times the regular rate of pay. So, for example, if an employee’s regular hourly rate is 14 dollars, but that employee works more than 40 hours during  a certain week, then the employer must pay the employee 21 dollars an hour for every hour worked over 40.  Today’s Long Island employment law blog discusses whether this overtime requirement applies to service advisors working automobile dealerships in New York.

One point that is different between the FLSA and the NYLL is the list of employees who are exempt from the overtime requirement. Being exempt means that the employee is not entitled to receive overtime pay. For example, employees who work at car dealerships as service advisors are one of the types of employees who are exempt from the federal overtime pay requirement, but not from the New York State law requirement.

Some employment agreements may also prevent an employer from simply turning their back to overtime pay requirements and may nevertheless require them to pay an employee overtime even if they are not required to do so under either the FLSA or NYLL.

Some employment contracts contain arbitration clauses requiring legal disputes to be resolved through arbitration as opposed to a court proceeding. Arbitration differs from a court proceeding in several ways. For example, arbitration is generally less formal, less expensive, and quicker than a typical court proceeding. A significant drawback to arbitration, however, is the difficulty in appealing arbitration decisions.  Today’s Long Island employment law blog discusses whether employment disputes can be arbitrated as a class or whether they must be filed as individual arbitrations.

Arbitration can be handled on an individual or class basis and can involve many different kind of employment disputes.  For example, arbitrations can be started for breach of an employment contract, an employment discrimination or retaliation claim, or for improper payment of wages or overtime.

Class arbitration occurs when a group of employees join together on behalf of themselves and other similarly situated employees to bring a legal dispute against the employer. When an individual employee has a small claim, it is typically better for the employee to proceed as a class because adding other cases could result in greater monetary recovery. However, for this reason employers often prefer to avoid class arbitration proceedings.

The National Labor Relations Act (“NLRA”) grants several rights to a wide array of employees in the private sector regardless of whether or not the employee is part of a union. For example, the NLRA allows covered employees to join as a group in an effort to address and improve the terms and conditions of employment, such as wages and working conditions.  Today’s Long Island labor law blog discusses a recent unfair practices case decided by New York’s federal appellate court.

Section 8 of the NLRA provides an extensive list detailing certain actions by employers that are prohibited and constitute an unfair labor practice. For example, an employer cannot restrict, limit, or interfere with a covered employee’s rights under the NLRA.

On March 15, 2018, in Novelis Corp., v. NLRB, New York’s Second Circuit Court of Appeals addressed various unfair labor practices committed by Novelis Corp., an aluminum manufacturer, after employees from the Oswego, New York plant location began to campaign in an effort to form a steelworker’s union.

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.

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