Both the federal Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) set requirements for employers to follow including paying employees the minimum wage and overtime pay.

In 2010, seeking to provide workers with additional protection, former New York Governor Patterson signed the Wage Theft Prevention Act (the WTPA) into law which allows for the imposition of tougher penalties for wage theft violations.

For example, the WTPA increased the total amount of money that an employee could potentially recover for willful violations of the state’s wage and hour laws. This is referred to as liquidated damages. This term simply refers to an additional monetary award that an employee may be able to recover under the WTPA in addition to the unpaid wages award.

In fact, the changes allow an employee to recover double the amount of what he or she is owed by the employer. However, an employee can only recover liquidated damages if the employer violated the law in bad faith.

On April 6, 2018, in the case of Rana v. Islam, the Second Circuit Court of Appeals issued an employee friendly decision relating to wage theft. Rana filed a federal lawsuit alleging numerous violations of state and federal labor and human trafficking laws. In his lawsuit, Rana alleged that he was enslaved at the hands of former New York consul general of Bangladesh, Monirul Islam and his wife.

According to Rana, Islam and his wife successfully lured him into coming to the United States by falsely promising him “good working conditions” as a domestic worker in their Manhattan home, all while earning $3,000 monthly.

However, soon after arriving in the U.S., Rana learned that these promises were a far cry from the truth. Instead, Rana suffered eighteen months of horrific abuse and deplorable work conditions. For instance, according to the court’s decision, Rana was forced to work 16 to 20 hour days, seven days a week for 18 months without any compensation. Any attempt to ask for his wages or leave the apartment was followed by death threats and physical abuse. During this time Rana was also allegedly forced to sleep on the kitchen floor or in a storage room and was only allowed to eat expired or leftover food.

Based on the seriousness of these and other facts, the lower district court awarded Rana $922,597.31 in damages. This number included liquidated damages under both the NYLL for $114,577.64 and the FLSA for $66,062. Facing substantial penalties, Islam appealed the court’s damages order to New York’s highest federal court – the Second Circuit Court of Appeals.

Prior to the Rana decision, New York courts often disagreed about whether or not a successful plaintiff could recover liquidated damages under both the FLSA and NYLL for the same action. On appeal, the Second Circuit pointed this out.

In an attempt to clarify this unsettled area of the law while at the same time making it clear that the court was not agreeing with Islam’s factual challenges to the award, the Second Circuit held that double recovery was not permitted. However, the court decided that successful plaintiffs could recover the larger award.

Accordingly, the Second Circuit concluded that Rana was entitled to the NYLL award in the amount of $144,677.64, in addition to other types of damages he had been awarded, but not the $66,062.00 that the FLSA allowed in liquidated damages.

The Rana decision should serve as a wake-up call for New York’s employers and as a reminder that the Department of Labor, as well as New York courts, continue to take wage theft seriously.

The Long Island employment lawyers at Famighetti & Weinick PLLC are experienced in handling wage theft lawsuits in New York, including claims of unpaid wages or unpaid overtime. If you have any questions about the FLSA, the NYLL, or any damages that you may be entitled to for an employer failing to properly pay you, contact a Long Island employment lawyer at 631-352-0050 to schedule a free consultation.

Today’s Long Island employment law blog was written by Law Clerk Thalia Olaya.

Because lawsuits can be time consuming and costly, many employers require their employees to sign arbitration agreements. Arbitration agreements require employees to use private arbitration to litigate workplace disputes. Further, these agreements sometimes require that employees may only start an arbitration on an individual basis, not a class wide basis.

The issue in Epic Systems Corp. v. Lewis , was whether arbitration provisions allowing class and collective actions to be waived, were enforceable. Starting in 2012, the National Labor Relations Board (“NLRB”) decided on multiple occasions that class action waivers incorporated in arbitration agreements violated the National Labor Relations Act (“NLRA”) because it prevented employees from engaging in certain actions which are explicitly allowed under Section 7 of the NLRA.

Specifically, Section 7 grants employees the right “to bargain collectively through representation of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual protection.”

In a 5-4 decision, the U.S. Supreme Court disagreed with the NLRB’s decisions and held that class action waivers are enforceable. The Epic decision, gave employers the green flag to not only include these waivers, but also force employees to sign them. Signing this agreement, however, provides employers with a substantial amount of power while resulting in a harsh blow to the workers’ rights.

Justice Neil Gorsuch wrote the majority decision in Epic and held that the NLRA does not overrule the federal arbitration law. Accordingly, the court decided that these arbitration agreements are enforceable.

Recently, after seeing a rise in certain workplace related claims, employers have started to demand that workers sign arbitration agreements and forfeit their rights to file claims through court or with other employee’s as a class in arbitration even when other employee’s suffered a similar injury. Thus, the only option left for employee’s who have entered into these agreements is to proceed individually in an arbitration proceeding.

The addition of this clause is a strategic move for employer’s because it tends to dissuade employees, from filing a claim, especially those who may not have a substantial amount of damages, because employment attorneys may be reluctant to the case.

Although proceeding through arbitration has certain benefits including being a faster and cheaper alternative to litigation, it does not provide employees with the proper tools necessary to ensure a resolution that will likely be in the employee’s best interest.

Indeed, Justice Ginsburg’s powerful dissent stated that the decision was going to result in the “under enforcement of federal and state statutes designed to advance the well-being of vulnerable workers.” Notably, she pointed out the importance of there being strength in numbers and mentioned that the Court’s decision in preventing employees from joining together to fight for better terms and conditions of employment leaves employees “disarmed in dealing with an employer.” Overall, she characterized the Epic decision as “egregiously wrong” and a “destructive result.”

In sum, the Supreme Court’s pro-employer decision has kicked employee rights to the side while allowing employers to escape liability. In light of the #MeToo movement, the effect of the Court’s decision in Epic is going to likely silence a number of sexual harassment victims who through this movement, recently started to gain the strength to come forward. This decision has only silenced employees’ rights leaving an already vulnerable class to fend for themselves.

Due to the lasting implications this decision will have on workers, it is crucial that employees meticulously review any type of agreement before agreeing to sign. Otherwise, the fine print may trick an employee and he or she may inadvertently make an irreversible decision.

The Long Island employment lawyers at Famighetti & Weinick, PLLC are experienced in reviewing employment agreements. If you have any questions about your employment agreement or about arbitration, contact a Long Island employment lawyer at Famighetti & Weinick at 631-352-0050. Our website is https://www.linycemploymentlaw.com/ .

Today’s Long Island employment law blog was written by law clerk Thalia Olaya.

The case Montero v. Yonkers involves a City of Yonkers police officer, Raymond Montero. Montero filed a federal lawsuit alleging his First Amendment rights were violated. In his lawsuit, Montero alleged that he was elected vice-president of the PBA, the union in place for the Yonkers Police Department. One of the defendants, also a Yonkers police officer, Keith Olson, was elected president. According to Montero, Olson opposed Montero’s candidacy for the vice president position.

Following the election, Montero made comments at union meetings. At one meeting, Montero criticized Olson’s relationship with the police commissioner and that the commissioner’s decision to change some policing units would hurt the police department, the community, and the union. Several months later, Montero called for a no confidence vote for the police commissioner.

Montero alleged that after he made these comments at union meetings, Olson and other police officers acting at Olson’s direction retaliated against Montero. For example, he alleges he was wrongfully investigated, denied overtime pay, transferred, and lost pay.

Based on these facts, Montero filed a First Amendment retaliation case in the Southern District of New York. The Court, however, dismissed all of the claims. The judge held that Montero’s actions were not protected by the First Amendment because he was not speaking as a private citizen. The court relied on the Supreme Court case Garcetti v. Ceballos. Montero appealed the dismissal to the United States Second Circuit Court of Appeals.

On May 16, 2018, the Second Circuit issued its decision. The court reaffirmed the principle that public employees are indeed entitled to some protection from the First Amendment. But, not all speech made a public sector employee is entitled to protection. Rather, the public employee must be speaking as a citizen on a matter of public concern. The Montero case hinged largely on the first part of the test which is whether Montero was speaking as a citizen.

In previous decisions, courts have held that to determine whether an employee is speaking as a citizen, courts should look at whether the speech has a citizen analogue and whether the speech was outside the employee’s official responsibilities. The Second Circuit held that these questions are factors. The primary question is whether the speech was within the employee’s duties. Ultimately, courts must look at whether the speech was part and parcel of the employee’s concerns about being able to do his or her job properly.

In Montero, the court held that his comments were not part of parcel of his concerns about his ability to do his job. The court found it persuasive that Montero was speaking as a the union vice-president noting that this was a role in which he was not required to serve as part of his job. Moreover, the court noted that although Montero learned the information he spoke about because of his job, it was not part of his job responsibilities. But, the Second Circuit did not adopt a broad rule as other courts have adopted which says that all speech made by an employee in his or her capacity as a union member is speech made as a private citizen.

The Montero decision is an important case about First Amendment retaliation in New York. The case clarifies what employees must show to be protected by the First Amendment in the workplace. The Montero case can certainly be read as an employee friendly decision.

The Long Island employment lawyers at Famighetti & Weinick PLLC are experienced in handling First Amendment retaliation cases in New York. If you have questions about the First Amendment, the Montero decision, or public sector labor law, contact an employment lawyer at 631-352-0050.

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.

On April 2, 2018, the United States Supreme Court, in Encino Motorcars, LLC v. Navarro, was confronted with an FLSA related question.

In Encino Motorcars, LLC v. Navarro, five employees who worked as service advisors at a Mercedes-Bens dealership in California, had sued the dealership in 2012 for failure to pay them overtime despite working, at a minimum ,55 hours every week. The service advisors, in addition to working directly with customers to sell them car repair services, also acted as the liaison between the customers who decided to service their car and the repair technicians working in the garage.

The district court and the Ninth Circuit Court of Appeals disagreed on whether or not the employees were entitled to overtime pay. The United States Supreme Court, after accepting to hear the case and originally kicking the case back down to give the Ninth Circuit another chance to decide the case, ultimately ruled in favor of the car dealership.

To decide to the case, the Supreme Court looked at the language of the FLSA which exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” The majority of the judges decided that there was no doubt that service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” Therefore, the Court said the real question was whether service advisors are “salesm[e]n primarily engaged in . . . servicing automobiles.” However, the Court was not troubled much by this question.

While the Court acknowledged that service advisors didn’t “spend most of their time physically repairing automobiles,” they pointed to the broad range of tasks that service advisors perform and stated that they are “integral to the servicing process.” The Court also pointed out that partsmen, who are explicitly exempted from the FLSA, also do not “spend most of their time physically repairing automobiles.” Thus, the Court concluded that Congress intended to include at least some workers who didn’t physically repair cars and notably stated that “[i]f you ask the average customer who services his car, the primary, and perhaps only, person he is likely to identify is his car service advisor.”

Further, in rejecting the Ninth Circuit’s narrow reading of the FLSA, the Court noted that the statute clearly showed that a broader interpretation was intended by Congress because of the statute’s use of language such as “any” and“or.”

In sum, although the Supreme Court’s decision did not change anything for employees in New York, it is still important for employers and employees to understand the differences between the FLSA and the NYLL. Due to the several exemptions that exist and the differences between the federal FLSA and the NYLL, it may not always be clear whether a certain employee is entitled to reap the benefits of the law’s overtime pay requirements.

If you are wondering whether your employer is required to pay you overtime under either federal or state law, or if you have any other employment related questions, contact an employment lawyer at Famighetti&Weinick, PLLC at 631-352-0050 to schedule a free consultation. You can also contact us by visiting our website at at https://www.linycemploymentlaw.com or by finding us on Facebook. Se habla español!

Today’s Long Island employment law blog was written by Thalia Olaya, a Hofstra Law School intern.

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.

At least three federal circuit courts of appeals require an arbitration clause to explicitly include language stating that class arbitration issues can be resolved by an arbitrator. Otherwise, these federal courts will automatically assume that an arbitrator does not have the requisite authority to address this issue and will authorize courts only to address class arbitration issues. On March 7, 2018, in Wells Fargo v. Sappington, New York’s federal appellate court refused to follow the footsteps of its sister courts.

In the Wells Fargo case, six former entry-level financial advisors employed by Wells Fargo joined together to bring a class suit against Wells Fargo for unpaid overtime under the federal Fair Labor Standards Act (“FLSA”) and state labor law. The employee’s employment agreements were not only broad, but also silent as to whether class arbitration was permitted to begin with.

Wells Fargo did not want the case to proceed as a class. Therefore, they filed a petition asking the court to compel arbitration on an individual basis instead of allowing the case to proceed as a class arbitration. The lower court denied the petition on the basis that an arbitrator rather than a court had to decide this issue. Wells Fargo was not content with this decision and subsequently appealed.

On appeal, the Second Circuit, New York’s highest federal appellate court, ultimately agreed with the lower court’s decision denying Wells Fargo’s petition. The rationale behind the Second Circuit’s decision involved a two-step analysis.

First, the court relied on a “presumption test” and stated that there was a general presumption that courts rather than arbitrators should decide “gateway questions of arbitrability.” The court then assumed that the issue in the Wells Fargo case, whether the arbitration clauses included in the employee’s employment agreement authorized class arbitration, was indeed a “gateway question of arbitrability” that a court should decide.

The Second Circuit, however, stated that this first step was not enough and continued to explain the second part of the test. The second step allowed the presumption from the first step to be overridden by “clear and unmistakable” evidence gathered from the arbitration agreement which indicated that both parties involved intended the question to be decided by an arbitrator and not a court.

After applying this two-pronged test to the facts involved in Wells Fargo, the Second Circuit concluded that there was indeed “clear and unmistakable” evidence that both parties intended that an arbitrator and not a court to decide any issue related to arbitration of the employment agreement. Further, the court pointed to numerous reasons that supported this conclusion, which were primarily based on the language of the arbitration clauses.

In sum, while the Second Circuit concluded that explicit language delegating class arbitration issues to an arbitrator is unnecessary in some cases, in an effort to prevent confusion, it is important that prior to signing an employment agreement both parties review every clause to ensure that it contains clear and specific language. Indeed, employees who are asked to signed an employment agreement should have the agreement reviewed by an experienced employment lawyer, before signing the agreement.

The bottom line is that deciding whether an arbitrator or a court has the requisite authority to address class arbitrability issues is not always clear. Thus, conflicting interpretations caused by broad arbitration clauses will ultimately require both parties to dig for the best arguments.

Famighetti & Weinick, PLLC are employment lawyers in New York. We are experienced in reviewing employment contracts. If you have a question about an arbitration clause in an employment agreement, or any other employment matter, contact a Long Island employment lawyer at Famighetti & Weinick, PLLC. We are available at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

Today’s Long Island employment law blog was written Thalia Olaya, a Hofstra Law School intern.

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.

After Novelis announced to employees that they planned to eliminate Sunday premium pay and that they would no longer allow holiday and vacation days to play a part in overtime eligibility, a group of employees began campaigning in an attempt to form a union. Eventually, Novelis refused to voluntarily recognize the creation of a union and instead, decided to hold an election that would determine whether it would accept the voluntary recognition request.

Numerous violations of Section 8 of the NLRA ultimately tainted the election results. For example, Novelis engaged in unfair labor practices by threatening employees with negative consequences if they voted pro-union, prohibiting employees from wearing union related apparel, and demoting a pro-union employee. As a result, pro-union employees lost the election and were unable to unionize.

Shortly thereafter, pro-union employees filed a charge with the National Labor Relations Board (“NLRB”) alleging that Novelis violated Section 8 of the NLRA by engaging in unfair labor practices. The NLRB agreed and decided to, among other things, issue a bargaining order forcing Novelis to negotiate with the union that lost the election. Novelis appealed the NLRB’s decision.

On appeal, Novelis lucked out. The Second Circuit agreed with the NLRB’s determination that Novelis had violated the NLRA. However, the Second Circuit disagreed with the NLRB’s decision to issue the bargaining order based on “changed circumstances,”and refused to enforce the order. The court noted that circumstances warranting a bargaining order must be based on unlawful conduct occurring at the time the order is issued and not at the time the unfair labor practice occurred.

One of the main changed circumstances discussed in Novelis Corp., was the significant employee turnover that had occurred during the two-year lapse between when the unlawful conduct occurred and the NLRB’s decision to issue the bargaining order. Approximately one-third of the current employees had not been employed by Novelis at the time the unfair labor practices occurred.

Accordingly, the Second Circuit decided that this and other changed circumstances, did not warrant enforcing the bargaining order. The court recognized that, assuming the bargaining order ultimately resulted in the formation of a union, the result could unfairly conflict with possible anti-union views held by the new wave of employees at Novelis who had not even been involved or affected by the prior unfair labor practices.

The pro-employer decision in Novelis Corp., serves as a reminder that even though a court may ultimately rule in favor of an employer who committed serious violations, avoiding unfair labor practices goes a long way toward preventing lengthy and expensive litigation.

Famighetti & Weinick, PLLC are Long Island labor lawyers. If you have a question about unfair labor practices, rights under the NLRA, or any other employment matter, call one of our Long Island employment lawyers at 631-352-0050 to schedule a free consultation. You can also contact us on the internet at https://www.linycemploymentlaw.com or on Facebook.

Today’s labor law blog was written by Thalia Olaya, a Hofstra Law School intern.

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.

In Penn, Marlon Penn, an African American Methodist, worked as the duty Chaplain for New York Methodist Hospital (the “Hospital”) in a primarily ministerial role. For example, “he coordinated the distribution of Bibles, conducted an in-hospital memorial service for an employee who dies, and ‘maintained . . . active, on-going pastoral care to staff.’” Penn remained in this position from 2004-2011.

Penn’s lawsuit stems from several requests that were ignored by the Hospital, asking them to promote him to full-time Staff Chaplain. Instead of hiring Penn, the hospital, on two occasions, passed him over in favor of a Jewish rabbi and a non-Methodist. In 2010, Penn filed an administrative complaint with the federal EEOC and New York Division of Human Rights alleging that the hospital failed to promote him because of his race and religion.

In response to Penn’s complaint, the Hospital provided several purportedly legitimate reasons for failing to promote him. The Hospital argued that Penn ended a service with a hymn that was only familiar to certain types of Christians, spent too much time counseling patients, was insensitive to non-Christian patients, and did not attend meetings. Also, Peter Poulos, the Director of the Department of Pastoral Care, argued that the second employee hired as a full-time Chaplain was a stronger candidate with better pastoral counseling skills than Penn.

In determining whether or not to apply the ministerial exception to Penn’s case, the Second Circuit noted that although there were some organizational and operational changes showing that the Hospital promoted its secular nature, there was nonetheless ample evidence indicating that the hospital remained significantly connected to its religious history. For example, the hospital has kept the word “Methodist” in its name, the Hospital’s by-laws require the hospital to appoint a president “with the advice and counsel of the Bishop of the New York Area of the United Methodist Church,” the by-laws require that every board meeting begin with a prayer, at the employee orientation Chaplain Polous tells employees that “patients are human beings who are created in the image of God,” and the Hospital provides religious services through its pastoral care department.

The Second Circuit’s decision then reiterated Hosanna-Tabor’s primary reason for implementing the ministerial exception doctrine which was to avoid infringing on a religious institution’s First Amendment rights. In other words, requiring a church or a religious group to accept or retain an unwanted minister would violate the First Amendment which prohibits government intrusion in these decisions. Thus, the court stated that because a jury hearing this case would have to make determinations on how a Chaplain should conduct religious services or provide spiritual support, it would dive deeply into protected First Amendment concerns.

Thus, due to the religious nature of Penn’s position at the hospital and the fact that the hospital’s Department of Pastoral Care was indeed a “religious group,” the Second Circuit agreed with the lower court’s decision to apply the ministerial exception and ruled in favor of the hospital.

Famighetti & Weinick PLLC are employment lawyers in New York. If you have questions about employment discrimination or other employment matters, call one of our Long Island employment lawyers at 631-352-0050. We are also available on the internet at https://www.linycemploymentlaw.com or on Facebook.

Today’s employment law blog was written by Hofstra Law School student and employment law intern, Thalia Olaya.

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.

The lower court initially ruled in favor of the employer based on a 2015 Supreme Court decision, M&G Polymers USA, LLC v. Tackett, deciding that collective-bargaining agreements must be interpreted according to contract law principles. But after reconsideration, the district court ruled in favor of the retirees. On appeal, the Sixth Circuit Court of Appeals, agreed with the district court’s reconsideration opinion because of the ambiguousness of the CBA. Thus the Sixth Circuit relied on “Yard-Man inferences,” stemming from a 1983 Supreme Court decision, allowing the Court to presume that in certain circumstances, “collective-bargaining agreements vested retiree benefits for life.”

Disagreeing with the Sixth Circuit, the Supreme Court acknowledged the importance of its ruling in Tackett. In fact, the Supreme Court noted that no other Circuit Court would agree with the Sixth Circuit’s decision. Specifically, the Court reminded the Sixth Circuit that Tackett rejected the Yard-Man inferences as inconsistent with basic contract law principles. Furthermore, the Court held that a “contract is not ambiguous unless it is subject to more than one reasonable interpretation” which was not the case here. In sum, the Court saw this as an “easy” case and ultimately found that “the only reasonable interpretation of the [CBA] is that the health care benefits expired when the [CBA] expired in May 2004.”

While the Court found this to be an “easy” case, employment contracts such as a CBA, are not always easy to interpret. To avoid possible litigation, employers should try to make their contracts as specific as possible. On the other hand, employee’s should carefully read their employment contracts to ensure he or she is receiving the maximum amount of benefits allowed under the contract’s terms.

Famighetti & Weinick, PLLC are employment discrimination lawyers on Long Island, New York. If you have questions about unions, collective bargaining agreements, or employment benefits, drafting an employment contract, contact one of our Long Island employment lawyers at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

Today’s Long Island employment law blog was written by Hofstra Law School student and Famighetti & Weinick intern, Thalia Olaya.

The Discriminatory and Retaliatory Conduct

Anthony Knight is African American and was a member of an electrician’s union. The union had agreed to provide electricians to Stony Brook, when Stony Brook needed additional workers for large construction projects. In April 2011, the union sent Knight to help Stony Brook with a project. While working at Stony Brook, Knight found “racist” graffiti in the bathroom and reported it to his foreman. After the report, Stony Brook terminated Knight’s work. Knight sued Stony Brook alleging the graffiti was discriminatory and the termination was taken in retaliation for his complaint about the graffiti. The court dismissed the discrimination claim, but the retaliation claim went to trial.

Whether the Plaintiff was an Employee

At trial, Stony Brook argued that Knight was not an employee and since he was not an employee, he was not protected by Title VII so his claim should be dismissed.

To determine whether a plaintiff is an employee under Title VII, courts use the Reid factors. These 13 factors were set forth in 1989 by the United States Supreme Court and are:

1. the hiring party’s right to control the manner and means by which the product is accomplished

2. the skill required

3. the source of the instrumentalities and tools

4. the location of the work

5. the duration of the relationship between the parties

6. whether the hiring party has the right to assign additional projects to the hired party

7. the extent of the hired party’s discretion over when and how long to work

8. the method of payment

9. the hired party’s role in hiring and paying assistants

10. whether the work is part of the regular business of the hiring party

11. whether the hiring party is in business

12. the provision of employee benefits

13. the tax treatment of the hired party

In Knight, the trial court held that it could not determine whether Knight was an employee because the 13 factors were not clearly in favor of one party or the other. Rather, some of the factors favored a finding that Knight was employee and other factors favored Stony Brook’s argument that Knight was not an employee. So, the court submitted the question to the jury and instructed the jurors about the 13 Reid factors. Ultimately, the jury determined that Knight was not an employee, leading Knight to appeal the decision.

The Appellate Court’s Decision

The Second Circuit is New York’s highest federal appellate court. In deciding Knight’s case, the court relied on several legal arguments, without reaching a determination as to whether the jury properly decided that Knight was not an employee. First, the court determined the question of whether Knight was an employee was an appropriate question for the jury to decide. Knight argued that the judge should have made that determination, but the Second Circuit disagreed.

Next, Knight argued that using the Reid factors was not appropriate because that test is used to determine whether an individual is an employee or an independent contractor. Knight further argued that since Stony Brook was not arguing that Knight was an independent contractor, then it was improper to use the Reid factors. The court disagreed with this argument, as well, noting the Supreme Court indeed intended that the Reid factors be used to determine whether an individual is an employee and, moreover, Knight had not suggested any other alternative test.

Finally, the court rejected Knight’s argument that the Reid factors compel the conclusion that he was an employee. Here, again, the court relied on a procedural point rather than reviewing the Reid factors. The court held that the Federal Rules of Civil Procedure require parties to renew motions for a directed verdict after a jury trial in order to preserve the right to appeal the issue. Because Reid did not renew his motion after the jury verdict, he waived his right to appeal.

Long Island Employment Discrimination Lawyers

Famighetti & Weinick, PLLC are employment discrimination lawyers on Long Island, New York. If you have questions about Title VII, discrimination, retaliation, or whether you are an employee, contact one of our Long Island employment lawyers at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

The information in today’s Long Island employment law blog was taken from Knight v. State University of New York at Stony Brook, No. 17-54, Jan. 29, 2018, Second Circuit Court of Appeals.

Employment at Will

The starting point to many employment law questions is the fact those most states, including New York, are employment at will states. Employment at will means that employers can hire or fire employees for nearly any reason at all, as long as the reason is not unlawful. Unless the employee was able to negotiate a contract which sets the terms of employment, employees generally remain at will so employers are free to impose all kinds of conditions on employment. One of the conditions an employer may place on an employee is that the employee be vaccinated against diseases, such as the flu. An employee may refuse to accept the vaccination, but in most cases, because the employee is “at will” the employer may fire the employee for not complying with a vaccination policy.

In sum, because many employees are “at will” and can be terminated for any reason, employers are generally free to require that their employees be vaccinated against certain diseases. That is unless an exemption to the general rule applies. These exemptions are discussed below.

Union Contracts Set Terms of Employment

Employment at will can be altered in workplaces where the workforce is unionized. Unions typically negotiate contracts which set the terms and conditions of employment for members of the union. Usually, these terms include pay structure, vacation, health insurance and other benefits, sick leave, disciplinary procedures, and work hours. Unions, however, may also negotiate other terms such as whether the employer can require vaccinations. If you are a union member, you should speak with you union about whether your contract allows the employer to require employees receive vaccinations.

Religion May Prohibit Vaccinations

Title VII of the Civil Rights Act prohibits discrimination based on, among other things, religion. State and Local laws, like the New York State Human Rights and the New York City Human Rights law, also prohibit discrimination based on religion. These laws require that employers make reasonable accommodations for employees’ sincerely held religious beliefs. So, if by receiving a vaccination an employee believes he or she would be forced to violate a sincerely held religious belief, the employee may request a reasonable accommodation. In a hospital setting, such accommodations for a vaccination may include a mask and/or counseling with how to minimize the spread of infectious diseases. Many employers should have procedures in place to allow their employees to make requests for accommodations, but it may also be best to consult with an experienced employment lawyer to discuss your situation first. The employer will likely review the stated religious belief to determine whether it believes an accommodation is appropriate. An experienced employment lawyer can help you articulate the religious belief in a way more likely to trigger accommodations.

Disability May Prohibit Vaccinations

The Americans With Disabilities Act prohibits discrimination based on an employee’s disability. Like religion, State and Local laws similarly prohibit discrimination based on a disability. A disability does not need to be completely disabling. Rather, many medical conditions may constitute a disability under the disability statutes. If an employee has a medical condition which prevents the employee from receiving a vaccination, the employee can request an accommodation like under the religious exemption.

Pregnancy May Prohibit Vaccinations

The third statute which may protect employees from required vaccinations is the Pregnancy Discrimination Act . Like disability and religion, the Pregnancy Discrimination Act requires that employees make certain accommodations for pregnant employees. Pregnancy employees should be prepared to articulate a particularized danger in receiving a vaccination and not just generalized fear. An experienced pregnancy discrimination lawyer can discuss your particular situation and advice you accordingly.

Long Island Vaccination Lawyers

In sum, most employees will likely be subject their employer’s vaccination requirement. Notably, generalized beliefs about the medical dangers of a vaccine or social or other generalized beliefs about vaccinations unrelated to religion are not enough to trigger protections or accommodations. Like most legal questions, the issues related to forced vaccinations are specific to each situation. Today’s blog should not be used as legal advice, but merely as general information about workplace vaccinations. If you have a particular issue or question concerning workplace vaccinations, contact an experienced Long Island employment lawyer at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 or visit us on the internet at https://www.linycemploymentlaw.com.

Pay Laws in New York

In New York, employees are covered primarily by two laws which concern how employers pay employees. The Fair Labor Standards Act (FLSA) is a federal law which sets requirements for minimum wage and overtime. The New York Labor Law (NYLL) is New York’s counterpart to the FLSA and similarly sets a minimum wage in New York, overtime rules, and other pay related rules such as frequency of payments.

Exempt and Non-Exempt Employees

Both laws separate employees into two categories — exempt and non-exempt. A full discussion of how employees are categorized as exempt or non-exempt is beyond the scope of today’s blog, but more information can be found here. For purposes of today’s discussion about pay for snow days, exempt employees are generally salaried employees who are not eligible for overtime pay. Non-exempt employees are workers who are paid hourly and who should be receiving overtime pay for hours worked over forty in a week. With these principles in mind, we can turn to the question of whether workers should be paid for a snow day.

Snow Day Pay

Non-exempt employees (hourly employees) must generally be paid only for hours worked. So, if the worker does not work on a snow day, then the employer is not required to pay the employee for the day. There is no distinction between whether the business is closed by the employer or if the employee chooses not to report to work for safety or other concerns. Employees must be mindful, however, that if the business is open and the employer expects employees to report to work, that if the worker does not report to work, then the employee may be subject to discipline or reprimand by the employer. Non-exempt employees who report to work but are sent home, must be paid for any hours worked.

Exempt employees are a trickier question. Exempt employees are paid a salary and employers risk converting their exempt employees into non-exempt employees if they improperly dock a salaried employee’s pay. Generally, employers cannot dock an exempt employee’s salary if that employee works part of the workweek or workday. In other words, employers cannot dock the salary of an exempt employee who works Monday through Thursday, but not Friday because of a snow storm. Similarly, if the exempt employee works for a few hours on Monday, but is then sent home before the end of the day because of a snow closure, the employer cannot deduct pay for those hours the business closed. Businesses may, however, require that exempt employees use accrued vacation or other leave time. In sum, a good general rule of thumb is that salaried employees must be paid for a snow day and non-exempt employees do not have to be paid if they do not work, even if the business closes for a snow day.

Wage Laws Have Pitfalls

Both the FLSA and NYLL have numerous exemptions, exceptions, and other pitfalls. Today’s employment law blog about snow day pay should not be accepted as legal advice for any particular situation, but rather should be used for general informational purposes. If you are an employer who is unsure about whether you should pay your employees for a snow day, we are available to discuss your particular situation. Similarly, if you are an employee who believes you should have been paid for a snow day, we can review your case.

Long Island Employment Lawyers

Famighetti & Weinick, PLLC are Long Island employment lawyers. We are experienced in wage, salary, and pay matters and offer free consultations to discuss your questions about payment of wages, whether it be for a snow storm or weather emergency, or whether your question relates to the regular payment of wages. Our employment lawyers are available at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

What is a Class Action?

On December 12, 2017, in Desrosiers v. Perry Ellis Menswear, LLC, a class action case, the New York Court of Appeals, the highest New York state court, was asked to decide whether members of a class need to be notified when a court dismissed the case or when a settlement occurred, even if the class action had not yet been certified by the court.

Class actions are appropriate when numerous other employees have been harmed by the employer in the same way. It’s a tool available for employees to come together as members of a group and, if a court eventually rules in their favor, all of the class members may be able to benefit from the award granted by the court.

Before a class action can become “official” it must be certified by the court. Certification means that the court must first confirm that continuing as a class is the best option for the parties before the case can proceed. So, for example, if filing separate lawsuits would end up being expensive and time-consuming, a court will likely consider certifying the class.

Settling New York Class Action Lawsuits

The Desrosiers case involved two separate lawsuits that were filed as class actions claiming compensation for unpaid minimum wage and overtime pay.

In both cases, the companies extended a settlement offer to some members of the action, but not all. After the offer was accepted, the companies asked the court to dismiss the case. The plaintiffs (those bringing the lawsuit), however, did not agree that the case should have been dismissed right away without first notifying the other class members of the settlement. The companies disagreed and argued that notification was only necessary when a class has been certified, which had not occurred in either case.

At issue in Desrosiers was New York’s Civil Practice Law and Rule (CPLR) 908 which states that in class actions, “notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.”

The question was whether a “class action” as stated in CPLR 908 was one that first required certification by the court or if it also included uncertified actions. If CPLR 908 only applied to certified cases, then the companies would win and the court would not be required to provide the plaintiffs with extra time to notify the other class members of the settlement.

The court was able to make its decision by comparing CPLR 908 with its federal counterpart which was amended in 2003. This change made it clear that under federal law, notice to class members of settlement or dismissal was only needed if the action was certified.

CPLR 908, however, has never been amended to clarify its meaning. For this reason, the Court of Appeals decided that if the State legislature intended the rule to apply only to certified class actions, it would have also changed the rule to state so specifically. Thus, the court ruled in favor of the plaintiff’s and allowed them to notify the other the class members about the settlement.

The decision in Desrosiers prevents sneaky employers from withholding information from additional class members that were not part of the settlement in an attempt to prevent them from knowing that there is a possibility that, they too, could win money if they try to settle the case. Perhaps the expression, “there is strength in numbers” quite literally does apply to class action cases.

New York Class Action Lawyers

If you have questions about class action lawsuits or any workplace related concern, such as unpaid minimum wage or overtime, or employment discrimination, the Long Island employment law firm Famighetti & Weinick, PLLC may be able to help you. Call us at 631-352-0050 to schedule a free consultation. Our website is https://www.linycemploymentlaw.com.

Today’s Long Island employment law blog was written by Thalia Olaya, a Hofstra Law school student interning at Famighetti & Weinick.

Employees Must be Paid At Least Minimum Wage

Both federal law and state minimum wage laws generally require that employees earn at least the minimum wage. In New York, the minimum wage varies depending on several factors such as, among other things, location (county), the type of work performed, and the size of the business.

Workers who do not qualify as “employees” are not covered by minimum wage laws. Qualifying as an employee requires the application of several factors which courts have recently battled with. Specifically, for interns, the main issue revolves around whether employers are providing interns with real-world practical experience or if they are actually exploiting the interns for free labor.

Intern Court Cases Develop

On December 8, 2017, the Second Circuit Court of Appeals, New York’s highest federal court, decided whether student-interns of a magazine corporation should have been paid for the work they completed.

In Wang v. The Hearst Corporation, the student-interns agreed that they did work related to the subject matter they were studying in school and gained valuable skills. But, they described their work as “repetitive.” For example, they claimed that even after mastering most of their tasks after a few weeks, they had to continue doing the same work for the rest of their internship.

In 2016, the United States District Court applied the “primary beneficiary test” to the Wang plaintiffs. The “primary beneficiary test” is derived from a 2015 Second Circuit case, Glatt v. Fox Searchlight Pictures, Inc., which applied seven factors to determine whether an intern is an employee. Under the primary beneficiary test, the question is who primarily benefits from the internship. In other words, if the employer ends up benefiting more than the intern, then the intern is classified as an employee and will be entitled to receive payment for minimum wage and overtime. If, however, the intern benefits more, then he or she will not be classified as an employee and will not receive minimum wage or overtime payments. Courts are instructed to apply the seven factors by weighing and balancing the totality of the circumstances.

Applying the primary beneficiary test in the Wang case, the District Court ruled in favor of Hearst, the magazine corporation, finding that the plaintiffs were in fact correctly labeled as interns rather than employees. The District Judge determined that all but one factor, either factored Hearst, or were neutral. After the District Court’s decision, the interns appealed the court’s decision to the Second Circuit Court of Appeals, New York’s highest federal appellate court.

The Second Circuit carefully analyzed each of the seven factors. The Appellate Court determined that only one of the factors favored the interns. Therefore, because the test required a case-by-case analysis based on the specific facts, the plaintiffs in Wang were correctly considered by Hearst to be interns.

So, Should I Pay My Interns?

The lesson from Wang and Fox Searchlight is that employers must pay close to attention to whether their interns are working primarily for the employer’s economic or business benefit or primarily for the interns’ learning benefit. Because courts review these cases by looking at the totality of the circumstances and on a case-by-case basis, it’s difficult to provide broad advice to employers about their interns. Employers who are unsure as to whether their interns should be paid, should speak to experienced employment lawyers, such as Famighetti & Weinick. Our Long Island employment lawyers are available at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

If you are interested in other intern related employment law questions, read Long Island employment Matthew Weinick’s published article about intern sexual harassment protections, distributed by the Nassau County Bar Association’s newspaper.

Today’s Long Island employment law blog was written Hofstra Law School intern, Thalia Olaya.