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.

Failure to Pay Overtime

The Fair Labor Standards Act and the New York Labor Law require that employers pay employees one and one half times the employee’s regular rate of pay for each hour that the employee works over 40 in a week. In F&W’s gas station case, the plaintiff worked 75 hours per week for nearly a year. The plaintiff alleged that he was not paid overtime for the 35 hours per week that he worked over 40. The Judge agreed and recommended that the plaintiff be paid $8,190 in actual damages and $8,190 in liquidated damages.

Wage Statements and Wage Notices

New York’s Wage Theft Prevention Act requires that employers provide written notice to employees of their wage amounts upon hire and provide wage statements detailing hours and pay rates at each pay period. The law provides that employers must pay statutory damages to employees when the law is violated. In the gas station case, Magistrate Judge Shields determined that the plaintiff was not provided any of the notices or statements required under the law and so he was entitled to statutory damages totaling $14,000.

Attorneys Fees

Both the New York Labor Law and the Fair Labor Standards Act allow attorneys to be awarded fees when they successfully represent clients in cases alleging violations of the laws. To determine the fees to be awarded, courts first determine the reasonable hourly rates for the attorneys who worked on the case, and then the court determines the reasonable amount of hours for attorneys to have worked on the case.

In the gas station, Magistrate Judge Shields determined that $350 per hour is a reasonable hourly rate for Long Island employment lawyers Matthew Weinick and Peter J. Famighetti. The Judge further determined that the amount of time they recorded as having worked on the case was reasonable. By multiplying the hourly rate by the number of hours, the Court recommended that F&W be awarded $11,970 in attorneys’ fees.

Long Island Wage and Hour lawyers

Magistrate Judge Shields’s order will be sent to District Judge Arthur D. Spatt for review. The plaintiff and defendant will have an opportunity to object to Magistrate Judge Shields’s recommendation, and then Judge Spatt will issue an order.

If you have questions about unpaid wages or overtime, contact the Long Island employment lawyers of Famighetti & Weinick, PLLC at 631-352-0050 or visit our website at https://www.linycemploymentlaw.com.

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?

In Figueroa v. Foster, the plaintiff was the President of a labor organization called SEIU Local 32BJ, CTW, CLLC, or (the “Local”) that deals with employee grievances, labor disputes, and terms or conditions of employment. Foster is the Commissioner of the New York State Division of Human Rights (“SDHR”). The SDHR is the agency that is responsible for the enforcement of the NYSHRL. In other words, the SDHR oversees labor organizations and makes sure that they are not engaging in any discriminatory conduct against the employees they are supposed to protect. Starting in 2009, numerous employees filed complaints with the SDHR claiming that the Local had violated the NYSHRL because it did not handle arbitration properly, did not demand arbitration, and engaged in other discriminatory actions as the employee’s collective bargaining representative. These complaints continued until 2016. The SDHR investigated the complaints to determine whether the union had violated the NYSHRL. The Local, however, argued that the NLRA’s duty of fair representation controlled, not the NYSHRL and thus, the SDHRL was not authorized to investigate the complaints. In other words, the Local argued that the federal agency should be investigating the complaints and not the state agency.

Although the lower court ruled that the NLRA controls, not the NYSHRL, the Second Circuit disagreed. On July 25, 2017, the Second Circuit reversed the lower court’s decision ruling instead that the NLRA’s duty of fair representation did not take control over the NYSHRL and therefore, they could both oversee labor unions.

To make this determination, the Second Circuit looked at whether the state law conflicted with the federal law in such a way that it would make it impossible to comply with both. The Second Circuit found that there was not a conflict. The court also looked at what whether Congress intended that the federal law supersede the state law and found that Congress actually intended the opposite.

Long Island Labor Lawyers Can Help

In sum, the NLRA and the NYSHRL can co-exist and the federal law does not preempt the state law. Instead, the state law can provide employees with additional protections against discrimination by the labor organizations that represent them.

If you have questions about the NLRA, labor law, workplace discrimination or retaliation, or the NYSHRL, contact the Long Island employment lawyers at Famigehtti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written by law student intern Thalia Olaya.

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.

In the Woods case, the plaintiff was a substance abuse counselor at START. Woods suffers from severe anemia and other medical conditions. For these reasons, Woods requested medical leave on at least four occasions. START is a nonprofit that provides services to narcotic-addicted patients. In 2012, after working at START for approximately five years, Woods was fired twelve days after she returned to work from an FMLA protected leave. Start claims she was fired because of performance issues. Woods, however, claims she was fired because she requested FMLA leave. After Woods was fired, she sued START for FMLA interference and retaliation. After she sued and sat for her deposition, she was asked several questions about a prior incident where she was accused of wrongdoing such as criminal conduct, lying, fabrication, and fraud. Woods decided not to answer these questions and instead, invoked her Fifth Amendment right against self-incrimination.

The FMLA prohibits an employer from interfering, restraining, or denying an employee’s right to exercise a leave of absence under the FMLA. The FMLA also prohibits an employer from retaliating against an employee for exercising their rights under the FMLA. For example, an employer can’t fire an employee for taking FMLA leave.

In this case, the lower court applied a “but-for” causation standard in determining whether START did in fact retaliate against Woods for taking FMLA leave. In other words, Woods had to show that retaliation was the main reason why she was fired. The “but-for” standard is harder to prove than the “motivating factor” standard, which is another causation standard courts often use to determine whether the adverse employment action in an employment discrimination case was in fact illegal. The reason why the “motivating factor” standard is easier to prove is because the employee only needs to show that the adverse action, in this case Woods’ being fired, was motivated, at least in part, because of retaliation.

Another issue in the Woods case, was that the lower court gave the jury an “adverse inference” instruction. This “adverse inference” allowed the jury to infer, if they wanted to, that Woods’ refusal to answer certain questions at her deposition meant that she had basically answered a “yes” to the questions about previous wrongdoing that were asked and thus, they could use it against her when evaluating her credibility.

On July 19, 2017, the Second Circuit ruled that the lower court’s decision was incorrect and held that the “motivating factor” causation standard applies in FMLA retaliation cases and not the “but-for” standard.

Additionally, the Second Circuit ruled that Woods was unfairly prejudiced by allowing the jury to use adverse inferences against her because most of the questions that were asked at her deposition related to whether Woods had been accused of something. The Second Circuit held that accusations alone are not enough to impair someone’s credibility because “the innocent and guilty alike can be accused of wrongdoing.”

Long Island FMLA Lawyers

In sum, courts in New York will have to apply the “motivating factor” standard instead of the heightened “but-for” standard in FMLA retaliation claims. Courts will also have to be careful in their “adverse inference” instructions because they can be unnecessarily prejudicial to the plaintiff.

If you have questions about FMLA retaliation, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written by law student intern, Thalia Olaya.

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 main reason for the ministerial exception is not to make it more difficult for employees, but rather to not infringe on an employer’s First Amendment rights. In Hosanna-Tabor, the Court explained that requiring a church or a religious group to accept or retain an unwanted minister, would violate the First Amendment which prohibits the government from intruding in such decisions.

On July 14, 2017, the Second Circuit addressed the scope of the ministerial exception for the first time in Fratello v. Archdiocese of New York.

In the Fratello case, Fratello was a principal at St. Anthony’s School in Nanuet, New York located in Rockland County. In 2011, the school did not renew her contract. Although it was not mentioned in detail in the court’s decision, the school terminated Fratello because of insubordination towards the pastor of St. Anthony’s. However, Fratello alleged that she was terminated based on gender discrimination and in retaliation for reporting the alleged discrimination.

Although the court determined that Fratello qualified as a “minister” under the law, Fratello did not have any formal training in religious studies or theology. In fact, all of her academic credentials were in education. However, her role as a principal at St. Anthony’s involved being the school’s catholic leader. As such, she implemented a new prayer system at the school where every morning a student would pray over the loudspeaker system. She also communicated religious messages over the loudspeaker such as reciting the “Our Father” and the ten “Hail Mary” prayers.

To determine whether Fratello qualified as a “minister” under the law thus falling under the ministerial exception, the Second Circuit used four factors established by the Supreme Court in the Hosanna-Tabor case. These factors included: (1) the employee’s formal title, (2) the substance reflected in that title, (3) the use of that title, and, (4) the religious functions performed. However, the Court made it clear that these factors did not create a bright line test.

When applying the factors above in the Fratello case, the court determined that the first factor was the only one that weighed against applying the ministerial exception because Fratello’s formal title was “lay principal.” However, the court ultimately found that the remaining three factors weighed in favor of applying the exception because Fratello was not only St. Anthony’s spiritual leader, but she “performed many important religious functions to advance its Roman Catholic mission.”

In sum, although the court did not allow Fratello to sue the school for employment discrimination and retaliation, not every religious leader may fall under the ministerial exception.

Long Island Employment Lawyers Can Help Fight Employment Discrimination

If you have questions about the ministerial exception or employment discrimination and retaliation, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written law student intern, Thalia Olaya.

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.” One of the purposes of the FMLA is to help employees balance the demands of the workplace with their personal medical concerns. However, conditions which qualify as a “serious health condition” for FMLA purposes is often disputed. On June 30, 2017, in Pollard v. The New York Methodist Hospital, the Second Circuit Court of Appeals, New York’s highest federal court, held that a hospital employee who had a benign growth on her foot had a “serious health condition” as defined by the FMLA despite the hospital’s argument that her foot condition did not qualify.

Conditions Requiring Multiple Treatments are Serious Health Conditions

In Pollard, the plaintiff was a medical records file clerk for the New York Methodist Hospital. She developed a soft tissue mass growth on her left foot that became increasingly painful. Pollard decided to have the growth surgically removed and scheduled the surgery for March 28, 2013. Pollard spoke to the hospital’s leave specialist to request FMLA leave for her surgery and post operation recovery. Later, the hospital’s leave specialist responded to Pollard’s FMLA leave request and said that hospital employees needed to provide at least thirty days’ notice of their FMLA leave and requested that she wait until at least April 19 to have the surgery done. Due to the increasing pain and because the growth on her foot was limiting her ability to perform her job since she was required to stand and walk for most of the day, Pollard decided not to reschedule the March 28 surgery date. Pollard underwent surgery on March 28, 2013 and on April 1, 2013, she received a letter stating that she was being fired for not reporting to work on March 28. At the lower district court, Pollard argued that her case was covered under a part of the FMLA which states that “conditions requiring multiple treatments” constitute a “serious health condition.” After the surgery, Pollard followed up with the podiatrist several times for post-operative treatment and evaluations. Yet, the lower court held that Pollard’s foot growth did not qualify as a “serious health condition.” In other words, the lower court thought that she received “treatment” for the growth on her foot only when it was surgically removed and did not think that she had received “multiple treatments” as required by the FMLA. However, on June 30, 2017, the Second Circuit disagreed with the district court’s ruling on what constituted “treatment.” The Second Circuit held that the hospital didn’t prove that Pollard’s required post-operative appointments were not a required part of the surgical treatment. As such, the Second Circuit did not see why the post operative treatment and evaluations that Pollard received were not considered part of the “treatment” as required under the FMLA.

Long Island Employment Lawyers Can Help With FMLA Leave

In sum, although one of the purposes of the FMLA is to help employees balance the demands of the workplace with their personal medical concerns, what qualifies as a “serious health condition” for FMLA purposes may not always be clear. If you have questions about the FMLA or any other benefits to which you may be entitled as a worker in the state of New York, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written by Thalia Olaya, a Hofstra Law School intern working at Famighetti & Weinick, PLLC, this summer.

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

Courts and the Department of Labor have recently battled with classifying ride-hailing drivers as independent contractors verse employees. In April 2017, the highest federal court in New York held that black car drivers were in fact contractors and not employees. Additionally, prior to the administrative law judge’s decision in this case, the New York State Department of Labor (“NYSDOL”) had determined on at least six prior occasions that Uber drivers are independent contractors.

The Latest Uber Decision

In the Uber case, the New York State Department of Labor was determining whether Uber was required to pay unemployment insurance benefits for three drivers. The administrative law judge found that Uber drivers are required to have their own vehicle and smart phone. They also pay for their own fuel and vehicle maintenance costs. Moreover, Uber does not require its drivers to follow a certain work schedule. So, why did the judge rule that Uber drivers are not independent contractors?

In her decision, the judge noted that “Uber took steps to modify the claimants’ behavior.” By this, the judge meant that for example, the drivers received a code of conduct detailing what constituted acceptable behavior. Additionally, Uber drivers were expected to accept ninety percent of their ride requests and if they did not, the drivers would be deactivated.

As a result, the judge held that because Uber exercised “sufficient supervision, direction, and control over key aspects of the services rendered by claimants such that an employer-employee relationship was created,” Uber drivers were in fact employees of the company and not independent contractors. Thus, the three Uber drivers in this case, and “others similarly situated,” were entitled to receive unemployment benefits dating all the way back to January 2014.

The Uber company, unhappy with the judge’s decision, has decided to appeal the decision and has stated that the drivers who testified were “hand-picked.”

In sum, until the decision is reviewed by a higher court, Uber drivers in New York will receive the benefits of being considered employees. For the time being, the administrative law judge’s decision will apply to any Uber driver in New York State if they work under similar levels of supervision, direction, and control as the Uber drivers in this case.

If you have questions about the distinction between independent contractor and employee, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is http://linycemployment.com.

Today’s employment law blog was written by Thalia Olaya, a Hofstra Law School intern working at Famighetti & Weinick, PLLC, this summer.

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.

The Second Circuit Court of Appeals, New York’s Federal appellate court, faced these questions in Irrera v. Humpherys, which is discussed below.

Court Determines Retaliation Case is Plausible

Irrera was a graduate music student at the Eastman School of Music of the University of Rochester, one of the nation’s most highly regarded music schools. At Eastman, Irrera was pursuing a doctor of musical arts degree and Humpherys was the chair of the piano department and one of his teachers.

On multiple occasions, Humpherys made unwanted sexual advances towards Irrera, which Irrera refused to accept. Some of the unwanted advances included caressing his shoulder, rubbing his hands up and down Irrera’s arms during a piano lesson, blowing kisses at him, and looking at him up and down in a sexual manner.

As a student pursuing a doctor of medical arts degree, Irrera had to perform two solo recitals. Despite being told repeatedly by Humpherys that he was ready and that he would do well, Irrera failed both of his recitals.

Irrera was shocked because in the 27 years that he had been playing the piano, this was the first time that he failed a solo recital. Not surprisingly enough, however, the recitals were judged by a panel of three professors, including Humpherys.

In a recorded conversation, Humpherys told Irrera that he “would never get a university professor job,” and threatened to “make his life a living hell” if he reported the sexual harassment. Regardless, Irrera complained to a school dean.

After Irrera received his degree from Eastman, he applied to 28 colleges and universities for teaching positions in their piano departments. However, Irrera did not receive even one interview invitation.

At issue in Irrera’s case was whether his inability to secure a job interview was caused by Humpherys in retaliation for Irrera rejecting his prior sexual advances.

Irrera lost his retaliation claim at the District Court because the court held that his claim was speculative. The court held that Irrera didn’t state factual allegations in the complaint suggesting that Humpherys provided Irrera’s potential employers with any kind of reference, including a negative reference.

On June 15, 2017, however, the Second Circuit reversed the District Courts decision on the retaliation claim. In holding that Irrera’s retaliation claim was plausible, the Second Circuit held that although it wasn’t impossible that all 28 schools didn’t give Irrera an interview based on his credentials, it was in fact plausible that the schools received negative references from Humpherys.

The Second Circuit also concluded that Irrera had stated a plausible retaliation claim because Humpherys had previously warned Irrera that he would make his life a “living hell” if he reported the sexual advances. Additionally, since Humpherys was the chair of the department, it was plausible that the schools, to which Irrera applied to, would contact Humpherys even though he was not listed as a reference.

Notably, the Second Circuit held that Irrera’s complaint was sufficient even though Irrera did not allege that he was aware of any particular instance in which the defendants sent a negative reference to a school. The Court used its “common experience” to hold that colleges “rarely, if ever, disclose the content of the references they receive.” The sum of the circumstances suggested that the retaliation was plausible.

In sum, this case reminds us that the plausibility standard is not always clear and lawyers and plaintiffs must draft well pleaded complaints to survive possible challenges by defendants to dismiss the case. If you think you have faced retaliation in the workplace or if you have questions about filing a discrimination or retaliation lawsuit, contact the Long Island employment lawyers of Famighetti & Weinick, PLLC at 631-352-0050.

Today’s employment law blog about workplace retaliation lawsuits was written by Thalia Olaya, a Hofstra Law School intern working at Famighetti & Weinick, PLLC, this summer.

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.

Just before the election, a Pier Sixty supervisor directed Perez and two other workers to stop chatting and to move. Perez was upset by the supervisor’s attitude. Shortly after this incident, Perez took an unauthorized break from working and posted a message on Facebook about “Bob,” the supervisor:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was visible to Perez’s Facebook friends and ten co-workers. It was also visible publicly. Pier Sixty management learned about the post and then Perez removed the post on October 28, 2011. On November 9, 2011, Pier Sixty fired Perez, who filed a charged with the NLRB against Pier Sixty alleging that his post constituted protected concerted activity and that his termination was retaliation for that protected conduct.

In April 2013, an NLRB administrative law judge found that Pier Sixty had indeed terminated Perez in retaliation protected activity. The decision was affirmed by a panel of the NLRB board. In other words, the National Labor Relations Board determined that Perez was lawfully allowed to make his Facebook post about his boss and that the company could not legally terminate Perez because of his post. How could that be?

The National Labor Relations Act (NLRA), is the federal law which regulates unions. Section 7 of the Act provides employees with the right to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8 of the act prohibits employers from terminating employees who engage in protected activity described by Section 7. Employers, however, may terminate employees who may have engaged in protected activity, but did so in an abusive manner.

At issue in Perez’s case was whether the obscenities he used in his Facebook post were abusive such that he lost the protection of the NLRA. The Court of Appeals reviewed the history of the development of the legal tests used to determine whether obscenities are protected before noting that the NLRB has now adopted a nine factor totality of the circumstances test to use for social media cases, such Perez’s case.

The Court of Appeals expressed concern about the fairness of the test, but applied it anyway, because Pier Sixty did not challenge the validity of it. Instead, the Court looked at whether the Facebook comments were so egregious that Perez should not be protected by the NLRA.

The Court was troubled by Perez’s “vulgar attacks on [the boss] and his family,” but noted that the post included “workplace concerns” including management’s treatment of employees and the impending election. The Court further noted that management had “demonstrated hostility” towards workers and so Perez’s post was “part of a tense debate” about mistreatment.

The Court also found it important that Pier Sixty had tolerated profanity in the workplace before and had previously terminated employees for using obscenities. Notably, the Court also determined that the location the comments — online — was important because online forums, such as Facebook, are a “key medium” of communication.

In reviewing all the factors, the Court held that the NLRB did not improperly find that Perez’s conduct was egregious enough to lose NLRA protections. In other words, as inflammatory as Perez’s comments were, they were nonetheless protected as comments concerning workplace conditions. The Court noted, however, — and it is important to note here — that the facts in the Perez case were at the “outer-bounds” of protected activity.

If you have questions about the NLRA, NLRB, concerted activity, or employment law questions, contact Famighetti & Weinick PLLC, employment lawyers on Long Island. We can be reached at 631-352-0050 or online at https://www.linycemploymentlaw.com.

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.”

The Court first dispensed with arguments that Congress’s inaction with respect to amending Title VII to clarify whether sexual orientation discrimination is encompassed shows that sexual orientation is not intended to be protected by Congress and that Congress’s explicit inclusion of sexual orientation in later statutes also shows its intent that sexual orientation was not intended to be protected by Title VII.

The Court was persuaded, however, that the EEOC’s position is that sexual orientation discrimination is protected under Title VII. The Court was further persuaded by language in Oncale suggesting that “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”

The Court next considered Hively’s arguments. First, she argued a “comparative method.” In this argument, everything about Hively remains the same, except that she is a man. Hively argued that if she were a man married to woman, her employer would not have taken action against her. The Circuit was convinced and described this as “paradigmatic sex discrimination.” In other words, Hively was disadvantaged because she is a woman.

Hively also made an “associational theory” argument. This argument is relied on the now settled principle that a person can be discriminated against because of the protected characteristics of someone that person associates with. The perhaps most famous example from a New York court is where a fired white employee argued he was fired because he was married to an African-American woman. Again, changing the sex of one of the partners in Hively’s case, alters the outcome. If one were male and the other female, Hively alleges she would not have been fired. Accordingly, the Seventh Circuit was further persuaded by this argument.

In sum, the Seventh Circuit held that Title VII prohibits discrimination on the basis of sexual orientation.

The trend set by the Seventh Circuit may spread across the country. Indeed, we recently blogged about a federal appeals court in New York which suggested if it were sitting “en banc” it could similarly rule that Title VII prohibits sexual orientation discrimination.

Famighetti & Weinick PLLC are employment lawyers on Long Island who handle cases of sexual orientation discrimination. If you have a question about the Hively decision, sexual orientation discrimination, or employment discrimination, contact us at 631-352-0050 or visit us on the web for more information at https://www.linycemploymentlaw.com.

Employment Discrimination on Long Island

Employees on Long Island continue to face discrimination in employment. Sex discrimination on Long Island can happen when an employer treats one particular sex different than another. For example, an employer may promote only men instead women. Another growing type of discrimination is gender discrimination and gender stereotype discrimination. An example of gender stereotype discrimination is where an employer fires a male who displays “effeminate” characteristics.

Other types of employment discrimination on Long Island are disability discrimination, race discrimination, national origin discrimination, and age discrimination. Employers are prohibited from making employment decisions such as hiring, firing, promoting, and pay based on any of these protected characteristics. Additionally, disability discrimination can occur when an employer refuses to provide a reasonable accommodation for an employee’s disability.

Sexual Harassment

Sexual harassment is prohibited by Title VII of the Civil Rights Act and by the New York State Human Rights Law. Two types of sexual harassment are hostile work environment and quid pro sexual harassment. A hostile work environment exists when an employer subjects to an employee to unwelcome sex based abusive conduct in the workplace which is either severe or pervasive. Examples include sex based jokes in the workplace, pornography in the workplace, or demeaning words directed at an employee based on the employee’s sex. Severe conduct could include touching such as massaging an employee’s shoulders, or something more significant such as touching a female’s buttocks or breasts.

Quid pro sexual harassment occurs when a supervisor requests sexual favors from a worker in exchange for favorable treatment.

Workplace Retaliation

Most employment statutes protect employees who exercise rights granted by an employment law or who complain that their rights have been violated. For example, if an employee reasonably believes she has been discriminated against in the workplace and complains about, the employer is prohibited from retaliating against the employee for making the complaint. Examples of retaliation include anything which dissuade a reasonable employee from making a complaint, such termination, reducing pay, unfavorable work assignments, or subjecting the employee to a retaliatory hostile work environment. Employees are also protected for enforcing rights under the Family Medical Leave Act (FMLA) or for complaining about wage violations under the Fair Labor Standards Act (FLSA).

Failure to Pay Minimum Wage and Overtime on Long Island

Employees on Long Island are entitled to receive minimum wage and, in many cases, overtime. Waiters, waitresses, bartenders, busboys, cooks, and valets, are just some examples of vulnerable employees on Long Island who are frequently cheated out of minimum wage and overtime. Overtime must be paid to employees on Long Island who work more than 40 hours in a workweek and who are not otherwise exempt under the law. New York’s Wage Theft Prevention Act also requires that employees on Long Island receive wage statements for each pay period in which they are paid. Violations of the minimum wage, overtime, or wage statement requirement can result in significant damages for employers. Employees who have not been paid properly should speak with an employment lawyer on Long Island to discuss how the unpaid wages can be obtained.

Help for Long Island Employees

Employment laws on Long Island can be tricky to navigate. There are federal, state, and local laws which may apply. Famighetti & Weinick PLLC are employment lawyers on Long Island and can discuss your employment case with you. Our Long Island employment law office is located in Melville, New York. Our employment lawyers can be reached at 631-352-0050 or on the web at https://www.linycemploymentlaw.com or Facebook.