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Articles Tagged with employment lawyers long island

Peter J. Famighetti is a Long Island employment lawyer and a founding partner of the Long Island employment law firm of Famighetti & Weinick, PLLC. Today’s employment law blog highlights Peter’s work and experience in the field of employment law.

Peter attended Hofstra Law School and was admitted as an attorney in New York State in 2001. Upon graduating from Hofstra, Peter was hired by the Nassau County Attorney’s Office where he was assigned to the Labor and Employment Bureau. Peter defended Nassau County against employment lawsuits. Notable cases handled by Peter include a class action lawsuit alleging the Nassau County police department violated the federal Equal Pay Act and gender discrimination laws and he defended a lawsuit, which alleged the Nassau County police department’s policy setting age limitations on applicants violated federal laws.

In 2010, Peter entered private practice working for employment law firms in Nassau County. In private practice, Peter represented countless employees in matters ranging from sexual harassment to hostile work environments to wrongful terminations. Peter fought for his clients’ rights in arbitrations and mediations, as well as in the federal and state courts of New York and administrative agencies such as the Equal Employment Opportunity Commission (EEOC) and New York State Division of Human Rights (NYSDHR). In addition to the employment cases, Peter handled other civil rights cases, also. For instance, Peter obtained a plaintiff’s jury verdict in case alleging violations of his client’s First Amendment free speech rights and Fourth Amendment freedom from unlawful search and seizure rights.

In October 2015, Long Island employment lawyers, Famighetti & Weinick, PLLC, filed a lawsuit alleging that a Long Island gas station did not pay their client overtime for the 35 hours per week that he worked overtime.  The firm also alleged that the gas station did not provide the client proper notice about his wages or proper wage statements when he was paid.  On August 30, 2017, United States Magistrate Judge Anne Y. Shields recommended to District Judge Spatt, that he order the gas station to pay $30,380 in damages, and $12,370 to F&W, for their work on the case.

Judge Recommends Answer Be Stricken and Default Entered

In the gas station case, F&W filed a lawsuit to which the defendants appeared in and submitted a response, called an answer.  However, in the course of the lawsuit, the defendants or their lawyer failed to obey court orders, failed to respond to motions, and failed to participate in the discovery process.  Further, after F&W filed an “amended complaint,” which sought to add a defendant, the defendants failed to respond to the amended complaint by submitting an answer.  Magistrate Judge Shields recommended that the defendants’ existing answer be stricken and that a default judgment be entered against all the defendants because of their exhibited “willful” failure to defend themselves in the lawsuit.

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?

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.

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

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.”

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

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.

An employee called his boss a “NASTY MOTHER F***ER” on Facebook and further wrote about the boss: “F*** his mother and his entire f***ing family.”  His boss fired him.  Was this a wrongful termination? The answer may be surprising.  Today’s employment law blog from Long Island employment lawyers Famighetti & Weinick PLLC explains.

The following facts are taken from NLRB v. Pier Sixty, LLC, a case decided by the Second Circuit Court of Appeals on April 21, 2017.

Hernan Perez was a server for Pier Sixty, a catering company.  In 2011, Pier Sixty’s employees sought union representation.  The organizing campaign was “tense,” with management threatening employees that they could be fired for union activities.  Nonetheless, the employees unionized via a vote on October 27, 2011.

Sexual orientation “is a form of sex discrimination” — so ruled a federal appellate court in Illinois.  This is a departure from rulings from other appellate courts across the country which had determined that Title VII does not prohibit discrimination on the basis of sexual orientation.  The Seventh Circuit’s decision is discussed in today’s Long Island employment law blog.

In Hively v. Ivy Tech Community College of Indiana, the plaintiff is openly lesbian and worked as part-time professor for the defendant college.  She applied for multiple full-time positions, but was turned down and was ultimately fired for the part-time position.  Hively brought claims against the college alleging sexual orientation discrimination, but the EEOC, then the District Court, then a panel of the Seventh Circuit all dismissed the claims, the latter of which holding that sex discrimination is different than sexual orientation discrimination and that Title VII only prohibits discriminating against “women because they are women and against men because they are men.”

The Seventh Circuit then convened “en banc”, meaning that all judges which sit on the Circuit heard the case, instead of just a panel of three.  The Circuit reviewed leading Supreme Court cases including Price Waterhouse and Oncale which noted, respectively, that Title VII prohibits gender stereotyping and that in discrimination cases, it does not matter if the harasser and victim are of the same sex.  The Court further noted that because of the “importance of the issue . . . a majority of the judges in regular active service voted to rehear this case en banc.”

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