At Famighetti & Weinick PLLC, we have used 201-d in some social media contexts. Employees who have been targeted for “cancellation” based on provocative social media posts, leading to trouble at work, have called us for help. We have had occasion to argue to employers that 201-d protects the employees’ social media activity, but we have not had occasion to test the theory in court.

Another case, however, reached New York’s highest court which issued a decision. But, the decision punts on what is in our opinion the more interesting question of whether 201-d protects social media posts. Instead, the Court relied on the ministerial exception to rule that the employee’s conduct is not protected by the statute. What is the ministerial exception and how does it relate to Labor Law 201-d? Today’s employment law blog discusses.

Background: Blogging, Labor Law § 201-d, and Employment Termination

Jessie Sander was employed as a “Full Time Jewish Educator” at Westchester Reform Temple, a religious institution. Shortly after beginning her hire, she co-authored a blog post critical of Israel and Zionism — content unrelated to her official duties. Although she assured supervisory clergy that her personal views would not be shared in her workplace role, she was terminated less than a week after the conversation. Sander then sued the Temple, asserting that her dismissal violated New York Labor Law § 201-d(2)(c), which prohibits adverse employment actions against employees based on legal recreational activities conducted off-duty.

Under Section 201-d, employers may not punish employees for engaging in protected off-work activities, including legal recreational activities undertaken outside work hours. The statute defines “recreational activities” expansively to include lawful, leisure-time activities typically engaged in for enjoyment or relaxation.

Procedural History and Court of Appeals Review

In lower courts, the Supreme Court (trial level) and the Appellate Division agreed that Sander’s claim failed because the complaint alleged termination based on the content of her speech, not on the act of blogging—a legal recreational activity. The parties disputed whether blogging could even qualify as a protected recreational activity. The Appellate Division did not reach other defenses raised by the Temple.

On appeal to the New York Court of Appeals, the central questions were:

1. Does Labor Law § 201-d protect the act of blogging or blogging’s content when such content is unrelated to work?
2. Even if protected, are there legal defenses or exceptions that preclude an employment-related claim?

The Court accepted the appeal to address these issues, which touch on statutory interpretation and constitutional protections.

The Court’s Holding: Ministerial Exception Precludes the Claim

Rather than resolving whether blogging is a “recreational activity” under § 201-d, the Court affirmed the dismissal of Sander’s claim on constitutional grounds: the ministerial exception. Under this well-established doctrine, drawn from U.S. Supreme Court precedent (e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Our Lady of Guadalupe School v. Morrissey-Berru), anti-discrimination or employment laws generally do not apply to employment decisions involving “ministers” of a religious institution. This is rooted in the First Amendment’s protection of religious autonomy and the institutional right to select its own spiritual leaders.

Although Sander’s role might not have been titled “minister,” the Court concluded — as a matter of law — that her actual duties were religious in nature. Her job description, reflected in the offer letter and official documents, emphasized teaching religious programs, supporting religious activities such as Shabbat and confirmation programs, and fostering religious identity. These core functions aligned with guiding religious education rather than secular instruction. As a result, the Court held that the ministerial exception categorically barred her claim, regardless of how § 201-d might otherwise apply.

The Court explicitly reserved the question of whether blogging constitutes recreational activity under § 201-d for another case, making clear that this statutory question did not need resolution given the overriding constitutional defense.

Key Legal Lessons and Practical Implications

The Sander decision carries several important takeaways for lawyers, human resources professionals, and employers with religious affiliations:

1. Ministerial Exception Applies Broadly to Religious Workers

The Court reaffirmed that the ministerial exception reaches beyond traditional clergy titles. Even if an employee’s title is non-ministerial, their core job functions and responsibilities determine whether the exception applies. Here, the job’s emphasis on religious education and mission justified excluding statutory employment protections from application.

2. Statutory Protections for Off-Duty Conduct Have Limits

Labor Law § 201-d aims to protect employees’ lawful off-duty activities from employer retaliation. Yet this protection is not absolute. The Court’s decision shows that when constitutional protections — like the free exercise of religion — conflict with statutory claims, constitutional doctrine can preclude statutory recovery. Moreover, the decision leaves open future clarification of what constitutes protected “recreational activity,” especially with modern online conduct.

3. Documentation Is Critical in Defining Job Functions

Here, the offer letter was pivotal in establishing that Sander’s duties involved religious functions. For employers, clear job descriptions and documented expectations can be crucial when defending against statutory claims. For employees, understanding how job documents align with actual responsibilities can shape employment rights and remedies.

Moving Forward: Areas for Further Development

While Sander resolves one important constitutional question, it leaves several unresolved issues ripe for future litigation:

• Statutory Scope of § 201-d: Does blogging—particularly expressive online activity—qualify as a “recreational activity” protected under state law? The Court deferred this question, inviting future cases to tackle it.
• Recreational vs. Expressive Activities: As digital platforms and expressive conduct blur traditional categories of recreation, courts will need to refine this area of law.

Conclusion: The Court of Appeals’ decision in Sander v. Westchester Reform Temple reinforces the enduring strength of the ministerial exception when constitutional values intersect with statutory employment protections. For legal practitioners advising clients in employment or religious institutional contexts, this case underscores the necessity of a nuanced understanding of both statutory rights and constitutional limitations.

If you have questions about 201-d, lawful recreational activities, or the ministerial exception, contact one of our employment law attorneys. Famighetti & Weinick PLLC can be reached at (631) 352-0050 or in the Hudson Valley at (845) 669-0040.

The full Sander decision is available here. Our prior blogs about the ministerial exception and 201-d are also available by following by the links.

What Happened — The Facts & Verdict

The plaintiff, Lisa Krause, served as principal of a junior-senior high school in the Oriskany Central School District beginning in December 2014. She testified that during her tenure, she was subjected to repeated discriminatory conduct by her supervisor, the superintendent — including repeated demeaning, harassing, and sexist remarks, unequal treatment of female staff, and threats regarding her employment.

According to the record, school-board members heard complaints about the superintendent’s behavior, but despite assurances, the conduct persisted — culminating in Krause’s placement on administrative leave in September 2016 and her termination the following month.

At trial, the jury found in Krause’s favor on her Title VII and NYSHRL claims — concluding that her gender was a motivating factor in the decision to terminate her, and that she suffered a hostile-work environment. The jury’s verdict awarded her $484,456 in damages, including lost income and emotional distress.

The defendants appealed — challenging (1) the sufficiency of the evidence supporting the verdict; (2) the award of lost-income damages; and (3) certain alleged trial errors, including an allegedly confusing instruction to the jury about New York’s student-accommodation laws.

Second Circuit Rejects All Grounds — Verdict Stands

On de novo review, which essentially means that the appellate court took a fresh look at the evidence, the Second Circuit held that the defendants had failed to carry their “heavy burden” to show that no reasonable jury could have found against them.

Notably, the Court reiterated the applicable standard: to overturn a jury verdict for insufficiency, the record would have to show a “complete absence of evidence” supporting the verdict or be so overwhelmingly favorable to defendants that “no fair-minded jury” could find otherwise.

Given the substantial record — including Krause’s own testimony and corroborating evidence from colleagues who witnessed or heard of the superintendent’s hostile behavior — the Court concluded the verdict was well supported.

Likewise, the award of lost-income damages stood. The Court found no abuse of discretion in the trial court’s decision to permit recovery — nor any compelling reason to order a new trial based on the challenged judicial comments.

Thus, the Second Circuit affirmed in full, leaving in place the jury’s verdict and the substantial damages award.

Why This Opinion Matters — Broader Implications

The Krause decision serves as a reminder that courts remain an essential avenue for vindicating workplace-discrimination claims. Even when defendants may emphasize performance or managerial discretion in their defense, juries may reliably find the plaintiff’s testimony of discriminatory treatment credible. The Second Circuit’s decision underscores several important points for employers and defendants — and for plaintiffs and their counsel — alike:

• Substantial-evidence standard remains rigorous but deferential. Appellate courts rarely overturn jury verdicts absent clear error — consistent with the principle that courts should not “weigh conflicting evidence” or second-guess credibility determinations.
• “Motivating factor” standard effective. Under Title VII, a plaintiff does not need to show that her protected characteristic was the sole cause of her termination. Here, evidence showed that gender was at least a motivating factor, sufficient to support liability.
• Lost-income damages remain available. The Court upheld a substantial award of back pay and related damages — signaling that courts will not lightly strip victim-plaintiffs of full compensation once liability is found.
• Hostile-work environment claims still viable. The conduct described at trial — repeated harassment, demeaning comments, differential treatment toward women — illustrates common forms of workplace discrimination, and the verdict confirms that such patterns remain actionable under Title VII and analogous state law.

For plaintiffs considering or pursuing employment-discrimination claims, Krause v. Kelahan demonstrates that a well-supported record — credible testimony, corroboration, patterns of conduct — can overcome formidable defenses even through trial and appellate review.

For employers, the decision is a cautionary tale: discriminatory conduct, even if informal or subtle (e.g., comments about clothing or parenting, unequal scrutiny, micro-management tied to gender stereotypes), can lead to significant liability. Structural safeguards — including robust human-resources practices, training, and enforcement of anti-discrimination policies — remain vital.

Conclusion

The Court’s affirmation of a nearly half-million-dollar verdict in favor of a female school principal is a strong signal that courts remain committed to enforcing workplace-discrimination laws. The decision in Krause v. Kelahan reflects the enduring principle that employment decisions cannot be tainted by gender bias — even when wrapped in claims of managerial discretion or performance concerns.

If your organization needs guidance evaluating or updating your discrimination policies, or if you believe you may have grounds for a Title VII (or state-law) claim, our firm stands ready to assist. Our employment lawyers are available at (631) 352-0050 or we can be reached via our website at http://linycemploymentlaw.com.

The full version of the Krause decision is available via the Second Circuit’s website.

Today’s civil rights blog discusses Leroy v. Livingston Manor Central School District, a case in which New York federal appellate court, the Second Circuit, analyzed a student’s free speech rights.

Facts as Recited by the Decision

The case involves a high‐school senior, Case Leroy, who attended Livingston Manor Central School District. On April 19, 2021, Leroy and friends took a photograph outside of school hours and off school campus: Leroy lying beside a car, another student kneeling on his neck giving a “thumbs up” sign. The caption on Leroy’s Snapchat story read “Cops got another.” Simultaneously, another student posted the same image with a “Black Lives Matter” logo and the caption “Another one down.”

While Leroy said he did not realize the image resembled the murder of George Floyd until after the post—and that he did not intend that meaning—he removed his post after about seven minutes once he became aware of the reaction. A different student screenshot the post and reposted it publicly on other platforms.

Following the posting:

• The District received a wave of emails and complaints from community members, students, and staff, many expressing that the image was racist or made students feel unsafe.
• The school held an assembly, supervised a student demonstration (students knelt nine minutes to symbolize Floyd’s death), held discussions and training.
• Leroy was suspended for five days, charged under the Code of Conduct for off‐campus misconduct that “interferes with, or can reasonably be expected to substantially disrupt the educational process” and suspended from extracurricular activities for remainder of year.

Leroy then sued the District, alleging it violated his First Amendment right to free speech. The trial court, however, granted summary judgment to the District, meaning the case was dismissed. The court ruled that the suspension was lawful because the off-campus speech caused “substantial disruption.”

Legal Framework

The appellate court reviewed the case under the twin Supreme Court precedents of Tinker v. Des Moines Independent Community School District (1969) and Mahanoy Area School District v. B.L. (2021).

• Under Tinker, student speech at school may be regulated if the speech “materially disrupts class-work or involves substantial disorder or invasion of the rights of others.”
• Under Mahanoy, off-campus student speech receives greater protection: While schools can in some cases regulate off-campus speech, the unique parental and 24-hour nature of students’ lives means schools’ regulatory leeway is “diminished.” The Court did not adopt a broad rule but rather identified three features of off-campus speech that reduce the school’s regulatory interest: (1) geography/parental responsibility, (2) risk of regulating 24-hour student speech, (3) schools’ stronger interest in protecting unpopular student expression.

The appellate court applied those factors by asking: (1) What was the nature of Leroy’s speech (protected or not)? (2) When, where, how did he speak? (3) What was the school’s interest in regulating that speech?

Court’s Analysis & Holding

Nature of the speech: The court found Leroy’s speech did not involve true threats, fighting words, or obscenity—all categories typically outside First Amendment protection. Thus, his speech was “the kind of pure speech” that would ordinarily receive strong First Amendment protection.

When/where/how he spoke: The post took place off campus and outside of school hours, from his personal phone to his Snapchat friends. Although some of his “friends” were students at the school, that fact alone does not convert all his off-campus online speech into on-campus style speech. The court emphasized that social media posts, even if to school-friends, do not automatically place the speech within the schoolhouse gates. The fact it reached the school environment does not by itself justify regulation.

School’s interest: The school argued interests in preventing disruption, maintaining a safe environment, and educating students on racial sensitivity. The court accepted that these are legitimate school interests, but found them insufficient in this case. Specifically:

• The disruption evidence consisted of a 15-20 minute assembly, a student demonstration, some in-class discussion, and external messages/emails. The court found this did not meet the “substantial disruption” threshold under Tinker and Mahanoy.
• The school’s interest in punishing speech because it was offensive or made students feel unsafe was not sufficient to overcome Leroy’s First Amendment right. The court emphasized that the school’s discipline appeared motivated by offensiveness, not by evidence of actual threat, bullying, or fear undermining student learning.
• Although schools may sometimes regulate off-campus speech that causes fear or threat to safety, the record did not establish that here. The court noted that the reaction to Leroy’s post was driven largely by others (students, community, media), not by the speech’s own immediate effect within the school. The fact that third-party reposting and reaction happened did not itself justify the discipline.

Conclusion: Because Leroy’s speech was protected, occurred off campus in a personal context, and the school’s regulatory interests were not strong enough to override his rights, the court held the school’s disciplinary action violated the First Amendment. Accordingly, the district court’s grant of summary judgment to the school was reversed and the case remanded for further proceedings.

Significance

This decision is significant in the evolving doctrine of student speech in the digital age. Some key takeaways:

• It reinforces that off-campus speech (including via social media) remains protected and that schools’ regulatory authority in that sphere is narrower than on-campus speech.
• The decision clarifies that the mere fact a post reaches school friends / school environment does not automatically convert it into on-campus regulated speech.
• It reiterates that the standard Tinker disruption threshold still applies; schools must show more than discomfort, outrage, or external reaction—they must show substantial disruption or a material invasion of rights.
• It underscores that schools’ interest in addressing offensive or racially insensitive speech is legitimate—but that such an interest alone cannot justify punitive discipline for off-campus speech unless it meets the required disruption/safety threshold.
• It provides practical guidance: Courts will weigh the three factors (nature of speech, context of speech, school interest) and emphasize the diminished regulatory leeway for off-campus speech (per Mahanoy).

Practical Implications for Schools and Students

• Schools should exercise caution before disciplining students for off-campus social media posts. They should assess whether the speech truly caused or was reasonably expected to cause a substantial disruption in the school environment, or a concrete safety problem—not merely offended or upset students.
• Schools may respond to offensive posts via assemblies, discussions, restorative practices, or training—rather than immediate punitive discipline—especially when the post was off-campus and removed quickly by the student.
• Students should recognize that off-campus speech is not immune from any regulation—but still enjoys robust First Amendment protection. The more removed the speech is from the school context (time, place, audience, connection to school), the stronger the student’s claim.
• In social-media cases, the transmission effect (how widely the post spread, whether others reposted) is relevant—but cannot by itself establish the disruption or connection needed for school discipline.

Limitations & Further Questions

• The court did not adopt a detailed bright-line test for off-campus speech regulation. As the majority emphasized, Mahanoy left open “where, when, and how” off-campus speech falls outside school authority.
• The decision acknowledges that cases in which speech involves serious harassment, bullying, threats, or clear interference with other students’ rights may still be disciplinable—even if off-campus. The line between “off-campus protected speech” and “regulable speech” remains fact‐intensive.
• Schools may still have stronger defenses when speech is posted to a very broad public audience, targets specific students or groups, or occurs during a school-sponsored event or via school‐provided resources.
• The decision may prompt reassessment of student disciplinary policies to ensure they align with First Amendment protections and reflect the digital reality of student communication.

In short, the Second Circuit in Leroy addressed the challenging terrain of off-campus student speech in the age of social media, reaffirming that students retain free-speech rights outside the school gate and cautioning schools against overly broad regulation of off-campus digital expression. It reversed the lower court’s decision and sent the case back for further proceedings consistent with its analysis.

If you have questions about the Leroy decision, students’ First Amendment rights, or other free speech questions, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our lawyers are available (631) 352-0050 or (845) 669-0040.

The Facts of the Ames Case

The plaintiff in the Ames case is Marlean Ames. She is a heterosexual woman who worked for the defendant-employer, Ohio Department of Youth Services. Ames started work in 2004 as an executive secretary and was eventually promoted to the program administrator.

In 2019, Ames applied for a new management position. The department interviewed her, but ultimately hired a lesbian woman for the job. Further, a few days after she interviewed for the job, the department demoted her causing a significant cut in pay. The department hired a gay man to replace her as program administrator. Ames then filed a lawsuit under Title VII alleging she was discriminated on the basis of her sexual orientation.

The Lower Courts Applied a Background Circumstances Analysis to Dismiss Ames’s Case

At the trial court, the employer moved for summary judgment asking that the case be dismissed. The court applied a “background circumstances” test. The test requires the employee to present evidence suggesting that the employer was the rare employer who discriminates against members of a majority group. The court determined that Ames failed to establish this evidence and it dismissed the case.

Ames appealed to the Sixth Circuit Court of Appeals. But, the court agreed that the trial court correctly dismissed the case. The Sixth Circuit ruled that since Ames is a straight woman, she was required to meet a heightened burden. The Sixth Circuit discussed the background circumstances standard as requiring evidence that the employment decision was made by a minority group or statistical evidence which would support a pattern of discrimination. Since Ames presented neither, the employer was entitled to have the case dismissed.

The Supreme Court Unanimously Rejects the Background Circumstances Standard

After the Sixth Circuit, Ames appealed to the United States Supreme Court. The Supreme Court, in a unanimous decision, rejected the background circumstances standard used by the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits. To reach its decision, the Supreme Court referred back to the framework used to analyze all discrimination claims. Known as the McDonnell Douglas burden shifting test, the first part of the test requires the plaintiff to pass an initial burden of establishing a prima facie case of discrimination. If established, then the employer must articulate a non-discriminatory reason for the employment decision. Then, the burden shifts back to the employee to show that the business is reason is pre-text for discrimination.

The Supreme Court determined that the Sixth Circuit’s approach imposed an additional burden on the plaintiff, requiring proof of the background circumstances. The Supreme Court ruled that this burden is not correct based on the text of Title VII and cases interpreting Title VII.

For starters the Court noted that Title VII’s text makes no distinction between majority groups and minority groups. Rather, the statute prohibits discrimination against “any” individual.

Further, the Court’s history of interpreting Title VII does not support the background circumstances approach. In 1971, the Court ruled explicitly that Title VII protects minority and majority groups. Similarly, in 1976, the Court outright rejected the notion that Title VII’s protection do not extend to white employees, i.e. a majority group.

The Court summarized its history of Title VII by noting that it had never indicated that the standard for proving discrimination should vary based on whether the plaintiff is in a majority or minority group. Justice Jackson, writing for the Court, ruled that the background circumstances standard, flouts this interpretation, so it is wrong.

Implications for Future Cases

The Ames decision is a win for employees. It confirms that so-called reverse discrimination claims are viable. More importantly, the decision rejects the heightened standard imposed by some jurisdictions to prove such claims. Reverse discrimination claims can be proven using the same framework which has long been applied to all discrimination claims.

If you have questions about the Ames decision, reverse discrimination, or any other kind of discrimination, contact one of our employment discrimination lawyers at Famighetti & Weinick PLLC. Our phone number (631) 352-0050.

New York Labor Law §193, Frequency of Pay, and Key Court Decisions: Vega and Grant

New York State has long maintained strict labor protections designed to ensure employees are paid fairly and on time. Two key statutes—Labor Law §193 and Labor Law §191—govern wage deductions and the frequency of pay, particularly for manual workers. Appellate court interpretations, especially the decisions in Vega v. CM & Associates Construction Management, LLC and Grant v. Global Aircraft Dispatch, Inc., have reshaped how these laws are enforced and what remedies are available to workers.

Labor Law §193: Unlawful Deductions

Labor Law §193 prohibits employers from making unauthorized deductions from an employee’s wages. Permitted deductions are limited and must be expressly authorized in writing by the employee or permitted by law, such as deductions for taxes or union dues. While §193 doesn’t specifically address when employees must be paid, it sets the foundation for wage protections in New York and interacts closely with §191 in certain legal contexts.

Labor Law §191: Frequency of Pay for Manual Workers

Labor Law §191(1)(a) requires that manual workers be paid weekly and no later than seven calendar days after the end of the workweek. The New York State Department of Labor defines “manual workers” as employees who spend more than 25% of their working time engaged in physical labor. These rules were designed to protect workers who are often lower-wage earners and are more vulnerable to financial hardship if their pay is delayed.

The Vega Decision

In 2019, the Appellate Division, First Department issued a groundbreaking ruling in Vega v. CM & Associates Construction Management, LLC. The court held that even if a manual worker is eventually paid in full, the failure to pay on a weekly basis, as required by §191, constitutes a violation of the Labor Law. This means an employee can recover “liquidated damages” under Labor Law §198—potentially 100% of the delayed wages—as a penalty for the delayed payment.

Prior to Vega, some courts dismissed pay frequency claims if the employee had received all owed wages, albeit late. Vega shifted the legal landscape by recognizing timely payment as a substantive right, not just a procedural technicality.

The Grant Decision

Following Vega, the legal debate continued over whether similar claims could proceed under other circumstances. In Grant v. Global Aircraft Dispatch, Inc. (2024), the Appellate Division, Second Department offered a contrasting interpretation, deepening the divide in the judiciary.

In Grant, the court declined to follow Vega, holding that Labor Law §198’s liquidated damages provision did not apply where wages were paid late but in full. The Grant court emphasized that §198 did not expressly authorize damages for late payment alone, absent underpayment or deduction.

This disagreement between appellate departments has created a split in authority in New York. While Vega remains binding in the First Department (which includes Manhattan and the Bronx), Grant governs the Second Department (covering Brooklyn, Queens, Long Island, and surrounding counties), making the legal outcome of a frequency-of-pay claim partially dependent on where the lawsuit is filed.

The 2025 Budget Settles the Law

The 2025 New York State Budget amends Section 1983 of the Labor Law. Effective as of May 9, 2025, the amendments effect all cases pending as of or commenced on or after May 9.

Specifically, the amendment limits damages available to employees who have been paid all their owed wages, but who may not have received timely wages under the frequency of pay law. The damages are generally capped to lost interest, set in accordance with the New York Banking Law.

But, for employers with a history of frequency of pay violations, employees may be entitled to liquidated damages equal to the wages due. To trigger this category of damages, the employer must have been subject to a finding or order. In other words, the employer must have been adjudicated in some way as having violated the law; prior allegations in a lawsuit or lawsuits concerning similar claims which were settled before adjudication, would not trigger liquidated damages.

What do the Amendments Mean

Certainly, the amendments are bad news for employees and plaintiff-side employment lawyers. The Vega decision triggered a wave of frequency of pay cases which highly lucrative for law firms, but very damaging for business. The amendments essentially quash an entire area of litigation. But, the flip side is good news for employers who tried to follow the law in good-faith, but may have made a mistake through mere ignorance of a tricky area of law.

Regardless of which side you’re on, the budget amendments settle an unsettled question of law. An issue that was set to be decided by the New York Court of Appeals, has now been settled by lawmakers and the governor. Clarity in the law is almost always a good thing.

Notably, the amendments do not change the availability of traditional wage and claims. Employees can still sue employers for failing to pay minimum wage and overtime. Liquidated damages of 100% also remain available for such claims.

If you have questions about frequency of pay claims, contact a New York minimum wage and overtime lawyer at Famighetti & Weinick PLLC at (631) 352-0050.

Additional resources:

Newsday issued an article here.

Governor Hochul’s press release is here.

The Long Island Employment Law blog is now available on Feedspot as a Top 30 employment discrimination law blog in the country!

The 3020a Process

In New York, most public school teachers enjoy the protections of tenure and the 3020a process, after serving a probationary period. While on probation, a teacher can generally be fired for any reason or no reason at all. A probationary teacher can even be fired for a mistaken reason, and without any due process.

Tenured teachers, however, cannot be fired absent a hearing. The hearing is required to be held pursuant to the Education Law Section 3020a, so for short hand, it’s typically called a 3020a hearing. As part of the 3020a process, teachers are entitled to a description of the charges they are facing and they are entitled to a hearing where the school district must prove the charges to a neutral hearing officer.

After hearing the evidence and the teacher’s defenses, the hearing officer will issue a decision. The decision typically involves findings of fact, then a determination about whether those facts establish misconduct.

The Part 83 Process

The 3020a process protects New York’s teachers’ jobs. Part 83 of the Education Department’s regulations protects teacher’s licenses. Like tenure which prevents a school district was terminating a teacher without due process, Part 83 is the procedure the Department of Education must follow if it wants to take away a teacher’s license. So, while 3020a may terminate a teacher’s job with one particular school district, it does not mean that the teacher couldn’t work for another school district (though, having been terminated via 3020a would that make it very difficult).

A license termination via Part 83 takes away a teacher’s ability to teach within the state. A termination via 3020a will not necessarily lead to a Part 83 proceeding. In fact, it’s not very common that a teacher would face both a 3020a and a Part 83. But it happens sometimes. Indeed, in some circumstances superintendents and school districts are required to report alleged teacher misconduct to the Department of Education for potential Part 83 proceedings. One such allegation would relate to child abuse.

A Part 83 is like a 3020a. The teacher is entitled to understand the charges being asserted and is entitled to a hearing with hearing officers who decide the case. At the hearing, the teacher can challenge the Department’s evidence, cross-examine witnesses, and present exonerating and/or mitigating evidence. A guilty determination as a result of a hearing does not necessarily lead to revocation of the teaching license. Sometimes, the Department can issue a license suspension, instead. But, under existing rules, licenses could not be suspended before the hearing, even temporarily.

Amendments for Interim Suspensions

In May 2025, Part 83 was amended to allow for the interim suspension of New York’s teachers’ licenses. Preliminarily, interim suspension will be allowed for only very specific situations. Interim suspensions are limited to circumstances concerning sex offenses or a boundary violation. What do these terms mean?

A sex offense is defined by the Penal Law. Section 130 broadly defines a range of sex offenses from touching another person in a sexual manner without consent to rape. A boundary violation fills in the gaps where the conduct may improper for a teacher to direct at a student, but may not rise to a criminal violation. Examples of boundary violations can include sexual contact, but expands to wider conduct also such as sexting and other sexualized communications, displaying or showing students pornography, or other personal communications which show an intent to enter into a romantic relationship.

When a school has facts sufficient to constitute a preponderance of the evidence (as defined by Part 83), the school may refer the teacher to the Department of Education. Under Rule 83.7, preponderance of the evidence means a conviction or order from a court, determinations from an arbitrator or hearing officer, statements from witnesses given under oath, admissions against interest, or other evidence of similar nature and weight.

With sufficient evidence, the Commissioner of Education may issue an interim suspension of the teacher’s license pending a hearing. To initiate the suspension proceedings, the Department must serve, by personal service, notice of the hearing and a verified petition on the teacher. The notice of hearing will set a time and place for oral arguments concerning the application for summary suspension. The Commissioner will designate a hearing officer from the list of hearing officers maintained to hear Part 83 proceedings.

The petition must include the basis for the application, including sworn statements from individuals with personal knowledge, or other exhibits, showing the teacher lacks moral character and that the public health, safety, or welfare imperatively requires emergency action.

Unlike other proceedings, the teacher has no right to discovery and the Department is not required to produce any other evidence or documents not enumerated in Rule 83.7.

The teacher is permitted to file an answer and sworn statements and exhibits with the hearing officer up to seven days before the oral argument date. But, the Commissioner can serve a response to teacher’s answer up to five days before the argument date.

Notably, to preserve a transcript of the oral argument hearing, the teacher must make a request that the transcript be taken.

The hearing officer is required to issue a report of conclusions and recommendation to the Commissioner who is then empowered to grant or deny the application for summary suspension. The decision must be based on a finding that the public health, safety, or welfare of the students or school community “imperatively” requires action. This decision must issue within seven days of the hearing officer’s recommendation.

If the Commissioner issues a summary suspension, the proceeding will continue under Part 83.3 and 83.4, the existing procedures to suspend or revoke a teacher’s license. A decision from that hearing must be made within 120 days. Teachers may also use the appeal process of 83.5, and if the decision is upheld, the teacher may appeal in state court.

The investigation and suspension are confidential until “all applicable statutes of limitation have expired.”

Employment Lawyers’ Thoughts on 83.7 Suspensions

There is no question that 83.7 addresses an important issue. School districts are obligated to take accusations of teachers’ sexual misconduct seriously. Whether 83.7 provides any additional safeguards though, is questionable. Districts are already able to reassign teachers out of a classroom based on such allegations. Some evidence which 83.7 requires to establish sufficient evidence for a summary suspension takes a long time to acquire. For instance a judicial determination of a sexual offense could take many months or even years.

Newsday has reported that a teachers’ union believes 83.7 strikes a good balance between protecting students and upholding due process rights of teachers. There’s no doubt that 83.7 provides some process, but without access to discovery or the right to cross-examine accusers, does 83.7 really sufficiently preserve the rights of teachers?

These are complicated issues, but the Board of Regents has already decided the outcome, regardless of F&W’s thoughts. On May 21, 2025, Rule 83.7 takes effect.

F&W has experience representing victims of sexual abuse, including students, and we have also defended teachers accused of misconduct. We remain available to help victims and workers. For more information, speak to one of our lawyers at (631) 352-0050 or (845) 669-0040. We also have more information available on our website at http://linycemploymentlaw.com.

History of the Americans with Disabilities Act

The Americans with Disabilities Act prohibits employers from discriminating against employees with disabilities. The ADA covers individuals who can perform the essential functions of their job position with or without a reasonable accommodation. Put another way, before a court determines an employer refused to provide an accommodation to an employee, the court must determine whether the employee could perform the essential job functions with or without a reasonable accommodation.

Facts of the Tudor Case

In the Tudor case, the plaintiff-employee worked for a public school district as a math teacher. The employee suffered from post-traumatic stress disorder, arising from being a victim of sexual harassment and sexual assault in a previous workplace. Her symptoms included neurological impairments and stuttering.

According to the court’s decision, Tudor’s symptoms escalated in 2008 reaching a point where therapy and medication could not control them. Her therapist recommended that she take a 15 minute break in the morning and afternoon each day, when she was not overseeing students. The school district agreed and Tudor used the breaks to leave the workplace, where her symptoms were triggered.

In 2016, the school’s administration changed. Following the change, the school prohibited teachers from leaving school grounds during prep periods, the time when Tudor would take her off-premises 15 minute break. Nonetheless, Tudor tried to leave campus, but was reprimanded for insubordination. The school further told Tudor that the information on file concerning her accommodation was insufficient.

Tudor took a leave of absence to treat her symptoms. Upon her return in 2017, the school granted her a break in the morning, and an afternoon break only on days when a librarian could watch her students. On the days when a librarian wasn’t available, Tudor couldn’t take her break.

In the 2019-20 school year, no school employees were available to cover Tudor’s afternoon break. Tudor left school grounds anyway, and sued the school district alleging that the failure to provide her the 15 minute afternoon break violated the ADA. She also alleged it violated the New York State Human Rights Law, but for reasons not stated in the decision, she dismissed those state law claims.

Once in court, the trial court dismissed Tudor’s claims. The judge determined that even though the school did not give her an accommodation, Tudor was able to do the essential functions of her job, so she did not maintain a lawsuit against the school. The court dismissed the case and Tudor appealed.

The Appellate Court Reverses the Trial Court Because it Misapplied the Law

The Second Circuit ruled that the trial misinterpreted the law concerning reasonable accommodations. The Court started with the well-settled principle that when interpreting a statute such as the ADA, courts should look first to the text of the statute. Looking at the ADA’s text, the Second Circuit concluded that the law requires employers to provide reasonable accommodations to employees with a disability, whether or not the employee is capable of performing the essential job functions with or without the accommodation. Putting it another way, the Court said that the fact that an employee can perform job responsibilities without a reasonable accommodation doesn’t mean that she must.

The Court found further support for its conclusion in other areas too. First, the Second Circuit ruled that its interpretation aligns with the interpretations from other appellate courts in the country. But, the Court also determined that its interpretation aligns with the ADA’s requirement that it broadly interpreted to effectuate its remedial purpose. Requiring that an accommodation be strictly necessary would conflict with this purpose.

For all of these reasons, the Second Circuit Court of Appeals reversed the decision of the trial court and remanded the case for further proceedings.

In sum, the Tudor decision stands for an important principle of disability discrimination law: an employer violates the law when it refuses to provide an accommodation to a disabled employee, even if the employee can perform the job’s responsibilities without an accommodation, unless an accommodation would be a hardship on the employer.

If you have questions about disability discrimination or failure to accommodate claims, contact an employment discrimination lawyer at Famighetti & Weinick PLLC. Our employment lawyers are available (631) 352-0050.

Recently, the Second Circuit Court of Appeals in New York issued a decision which highlights the uncertainty of jury trials. Perhaps more than any other factor, a jury is an unknown factor. Lawyers may be familiar with a particular judge in a case and may have formed a belief about the judge’s inclinations about ruling on certain matters based on the judge’s prior decisions and prior interactions the lawyer may have had with the judge.

But, the makeup of a jury is not known until the case gets to trial. Even then, the process of “picking a jury”, known as voir dire, offers only a small glimpse into a juror’s background. Lawyers don’t have the benefit knowing how the jurors decided other cases, often because the jurors have never served on a jury trial which reached a verdict.

In counseling clients about the risks of litigation, no client wants to accept that there are reasons to settle. Every client believes that he or she is right and that because they’re right, they’re going to win their case. But, the case Qorrolli v. Metropolitan Dental Associates, is a glaring example of the risks of a jury trial.

Qorrolli was an employment discrimination case. Specifically, and in brief, the plaintiff worked as a dental hygienist. She alleged that throughout her employment, her supervisor sexually harassed her. The alleged harassment included touching of her leg and upper thigh.

Based on the conduct and her termination which came after she allegedly complained about the harassment, the plaintiff filed a lawsuit in federal court. The case reached a trial. The jury returned a verdict in the plaintiff’s favor, awarding $575,000 in compensatory damages, and $2 million in punitive damages.

This should be considered a good outcome for the plaintiff. But, after the jury trial, the defendants asked the court to hold a new trial. The defendants argued that they were entitled under law to a new trial because the plaintiff introduced inadmissible evidence at the first trial and the jury’s award showed that it disregarded the judge’s instruction that it should disregard the inadmissible evidence.

Put another way, not all evidence in a case may be considered by a jury. Rules of evidence exist to control which evidence a jury may hear. Sometimes, usually inadvertently, a jury may hear evidence which the rules of evidence prohibit them from considering. In those situations, a judge will instruct the jury to disregard the inadmissible evidence. But, even with such an instruction a jury can’t un-hear what it’s heard.

In Qorrolli, the judge agreed that defendants deserved a new trial. The appellate court ruled that the judge properly used her discretion in granting the new trial. Indeed, the appellate court noted that the trial court properly determined that the jury’s award was not in line with other cases. In other words, even though the jury issued an award of damages, that is not the end of the line. The judge can still review the award to ensure that it comports with awards that are allowed by law.

So, the parties conducted a second trial. After the second trial, the jury still returned a verdict for the plaintiff, but this time, it awarded just $1, called nominal damages.

Sames case, two different juries, two remarkably different outcomes. The plaintiff went from more than $2.5 million in damages, to a dollar.

This is not to say that every case must or should settle. Rather, the point is the risk of litigation is often underappreciated by litigants. The Qorrolli case highlights that a jury can come to a very different conclusion based on the very same facts. Further, even after a jury’s verdict, a judge oftentimes has a role in determining whether the verdict is within the bounds of what the law allows.

And the lesson is not solely for plaintiffs. Defendants may win at trial, but a plaintiff appeals a ruling or rulings made during the trial. If an appellate court agrees and grants a new trial, the plaintiff may win that second trial.

In sum, it’s not unusual for clients to believe that they will win their case. It’s actually quite natural. The Qorrolli case is shining example of the unpredictability of jurors. A good lawyer will counsel clients about the risks of litigation to help the client formulate a strategy which will help the client meet their goals, while mitigating the risks of litigation uncertainty.

If you have questions about litigation risk, jury trials, or settlement considerations, contact a lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050. If you enjoy reading our blog content, please be sure to follow our social media to stay up to date on our most recent posts.

Indeed, the Qorrolli case has another interesting legal point concerning whether and when an employee’s workplace complaints can trigger retaliation protection. We’ll address that question in another upcoming blog.

In New York, public sector jobs are generally regulated by the civil service commission. The state operates a state-wide civil commission, but counties and towns also maintain local civil service commissions to regulate employment within those municipalities. County civil service commissions may also have authority over public sector jobs such as school and library districts.

Part of the civil service commission’s job is to ensure that candidates for civil positions meet eligibility requirements. Sometimes those requirements mean a candidate must have particular relevant job experience and sometimes it means that the candidate must hold a special license or certification. Other times, the position has a residency requirement, meaning the candidate must have residency in the town, county, village, or school district, where the job will be. Typically, for a residency requirement, the candidate must have held the necessary residency for the 12 months prior to the appointment.

In a recent case handled by civil service lawyers Famighetti & Weinick PLLC, the firm’s client had been employed by a Long Island school district for many years. Out of the blue, the county civil service commission issued a letter to the client indicating it determined that the client did not meet the residency requirements for his position at the time of his appointment, many years earlier. Accordingly, the commission voted to disqualify the client from his job. Put another way, the commission’s decision meant that the client would lose his job and be out of work.

Desperate, the client came to Famighetti & Weinick for help. The civil service rules provide for an appeals process, but it provides a very short window of opportunity — just 30 days. With time already elapsed, Famighetti & Weinick went right to work devising a strategy for the appeal. The firm developed a two pronged attack on the commission’s decision.

First, the firm argued that the commission’s decision was arbitrary and capricious for two reasons: (1) the commission’s use of the term residency was too strict and (2) the facts proved that the client maintained residency as required by the job posting and consistent with the proper definition of residency. The unusual fact of this client’s case was that the client had recently been relocated at the time of the job application because of a home foreclosure. Thus, he had used some different addresses around the time of application and appointment.

But, residency is a legal term of art. As interpreted by New York’s appellate courts, residency requires a showing of a “bodily presence as an inhabitant in a given place.” It’s quite different than being a domiciliary, which is a stricter term requiring an intention to remain domiciled.

To illustrate the example of bodily presence required for a residency requirement, in an appellate court case concerning a firefighter in Buffalo, the firefighter owned a home outside the City of Buffalo where his wife and children lived. He also had an apartment within the City. The City of Buffalo tried to disqualify the firefighter for failing to satisfy the residency requirement, but the appellate court determined that because the firefighter maintained an apartment in the city, he satisfied the residency requirement. If the City had a domiciliary requirement, the case might have come out different.

In Famighetti & Weinick’s case, the firm relied on this interpretation of the word residency and showed, through credit card bills and delivery invoices, that the client maintained bodily presence within the jurisdiction during the applicable time period.

Next, the firm argued the civil service commission’s decision was unlawful. Pursuant to New York Civil Service Law Section 50, civil service commissions can investigate background and qualifications of candidates after appointment, but not more than three years after appointment, unless the commission alleges the candidate had engaged in fraud. In the firm’s case, the commission’s decision was issued more than three years after the appointment, so the decision was unlawful unless it was based on the candidate’s fraud.

Here, the commission did not allege fraud, but to be sure the exception to the three year rule did not apply, the firm detailed the very high standard the commission must meet to prove fraud. Indeed, the commission was required to have clear and convincing evidence of “substantial fraud.” The firm then detailed how the commission could not possibly meet its burden because the overwhelming evidence showed that the client actually resided in the jurisdiction and no evidence of fraud existed.

Notably, the commission’s decision was not enforced pending the appeal. After some tense weeks of waiting, the firm finally received a decision reversing the disqualification. The firm won!

If you have questions about civil service residency requirements, civil service appeals, or other civil service questions, contact civil service lawyers Famighetti & Weinick PLLC. Our phone number is (631) 352-0050. We have more information available on our website: https://www.linycemploymentlaw.com/civil-service.html.

The FMLA allows qualified employees to take up to 12 weeks of unpaid leave from work, to care for themselves, or a family member, who has a serious medical condition. The law protects the employee’s job, meaning the employer must maintain the employee’s job while the employee is out on leave. In other words, when the employee’s leave is complete, the employer must generally allow the employee to return to work.

The FMLA specifically prohibits employers from doing three things: interfering with, restraining, or denying an employee’s rights under the law. The principal question in Kemp was whether an employer interferes with an employee’s FMLA rights when it discourages, but does not deny, an employee’s request for FMLA leave. Indeed, employers often try to escape liability by arguing that it ultimately granted leave, even if it initially tried to deny it, or discourage the employee from taking it. The Second Circuit answered the question in no uncertain terms: Yes.

In Kemp, the employee argued that the employer discouraged her from using FMLA leave. The employer countered that ultimately, it approved the employee’s FMLA leave, therefore, it did not violate the statute.

The trial court agreed with the employer. The court held that to prove a violation of the FMLA, the employee needed to prove that she was denied benefits to which she was entitled. Since Kemp’s FMLA leave was approved, her FMLA claim had to be dismissed.

The appellate court disagreed. It noted that its prior decisions held that an employer can violate the FMLA by either denying benefits or otherwise interfering with a benefit. Kemp solidified the legal theory that an employer can be liable for interfering with FMLA benefits, even when it ultimately approves FMLA leave.

Unfortunately for Kemp, the favorable decision on the substantive FMLA claim did not save her case. Ultimately, the appellate court ruled that the trial’s court decision to dismiss the claim should be upheld because the statute of limitations prohibited Kemp’s claim.

In Kemp, the Second Circuit ruled on another interesting question — when does the statute of limitations begin to run for claims under the New York State Human Rights law. The statute of limitations sets forth how long a plaintiff has to file a particular claim. For claims under the New York State Human Rights Law, the statute of limitations is three years. This means that claims must be filed within three years of the date from when they accrue.

The Kemp case had to determine the date when Human Rights Law claims begin to accrue. The question was whether they accrue from the date the employee receives notice that some adverse employment action will be taken, or the date when the action begins effective. The Second Circuit held that the claims accrue on the date the employee has notice of the employers “official position” on the employment decision. In Kemp, the employee did not file her claims before the statute of limitations expired, so the claims were dismissed.

Navigating the complex world of employee leave under the FMLA can be daunting. Additionally, available leave programs under New York State law add another layer of complexity. If you have questions about the Family Medical Leave Act (FMLA) or the New York Paid Family Leave law, contact a New York employment lawyer at (631) 352-0050 or visit our website at http://linycemploymentlaw.com.

Because federal and state wage laws frequently overlap in other areas of coverage — such as the requirement to pay non-exempt employees overtime — employees suing employers in New York for improper payment of wages often sue in federal court, asserting violations of both federal and state laws. Employers who violate wage and hour laws, oftentimes also fail to comply with the WTPA, so WTPA claims are usually included with claims alleging improper payment of wages. On August 30, 2023, the United States Court of Appeals for the Second Circuit issued a decision which may limit employees’ ability to bring WTPA claims in federal court. Today’s Long Island employment law blog explains.

Federal courts are courts of limited jurisdiction. This means that they can only hear certain cases as set forth in the Constitution and by law. Generally, federal courts can usually hear cases which involve issues concerning federal law. So, when a victim of wage theft sues an employer, if they want to bring the case in federal court, they sue under the Fair Labor Standards Act (FLSA), which is a federal law. If the employee uses only New York State’s Labor Law, unless some other basis of jurisdiction exists, the case would be dismissed from federal court because without a federal law at issue, the court has no jurisdiction to hear the case.

But, when an employee uses the FLSA, the employee can also bring related claims which arise under state law. This is known as asserting supplemental jurisdiction.

Jurisdiction is not the only bar to determining whether a case or a particular claim in a case can be pursued in a federal court. Article III of the Constitution requires that courts hear only “cases or controversies,” a concept typically referred to as standing. Standing, as interpreted by the Supreme Court, requires that a plaintiff show an actual injury or a concrete harm, in order to bring a case in federal court.

Standing is the issue that’s been waiting for employees asserting New York State WTPA claims in federal court. Some employers have argued and some federal District Courts have agreed (or raised the issue on their own), that employees do not have standing to bring WTPA claims in federal court. The reason offered by these employers and courts is that the WTPA provides for only a monetary damage based on a statutory violation. Based on a 2021 Supreme Court case referred to as TransUnion, where a plaintiff asserts claims seeking money damages based just on a statutory violation, the plaintiff must show a harm distinct from the violation to show standing.

Based on TransUnion, many federal District Courts in New York have dismissed WTPA claims. Others, however, have ruled that a separate injury is not required to be alleged, and have allowed WTPA claims to proceed. This divergence is a perfect storm for an appellate court to rule on the matter and indeed, in Guthrie v. Rainbow Fencing, Inc., New York’s federal appellate court, the Second Circuit, weighed in on the matter.

In Guthrie, the Second Circuit confirmed that TransUnion is the controlling Supreme Court case. Based on TransUnion, the Second Circuit agreed that the courts which require showing of an actual or concrete harm, reached the proper decision. In so doing, the Court rejected the idea that an “informational injury” is sufficient harm. Under the theory advanced by Guthrie, by omitting information which the WTPA requires employers give employees, the employee has sustained an injury sufficient to have standing. The Second Circuit rejected this. In sum, the Second Circuit ruled that employees asserting WTPA claims in federal court must allege a concrete injury in fact.

The Second Circuit has not closed the door entirely though. In fact, the Court specifically explained circumstances which could establish an injury in fact, such as when an inaccurate or non-compliant wage notice prevents an employee from obtaining timely payment of wages. Moreover, the Court also pushed back on District Courts which required a higher showing of injury.

Of course, the decision applies only to WTPA claims in federal court. Cautious employees may decide the Guthrie decision means that they should rely on state claims in state court, instead of federal and state claims in federal court.

Though not outright endorsed by the Second Circuit, in a footnote, the Court alluded to other allegations which might show standing:

• wage statements which did not show full hours worked prevented employee from determining and seeking payment for the precise wages she was owed;
• a misclassified employee showed an injury because she wasn’t told she was supposed to be paid overtime, so she lost the opportunity to advocate for proper payment;
• inaccurate wage statements which did not state a calculation of hours and overtime, prevented the employees from knowing the extent of underpayment of wages.

In sum, the Second Circuit has settled a split in decisions coming out of federal courts in New York about whether standing to assert a WTPA claim requires a showing of concrete injury. It does. But, the Court has not ruled that WTPA claims can never be brought in federal court and the Guthrie decision lays out a blueprint which employees can use to build a WTPA claim which properly satisfies the standing requirement.

If you have questions about the Wage Theft Prevent Act, standing, overtime, minimum wage, or other wage and hour laws, contact an employment lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050 and our website is http://linycemploymentlaw.com.

The following information is taken from the publicly available court orders issued in the case.

Persaud worked for the New York City Department of Finance (the DOF). He is of Guayanese national origin. In October 2020, a Guyanese newspaper published an article entitled “Gutter Work.” Boiled down to its essence, the article discussed the rise of oil jobs in Guyana and public debate about which workers in Guyana should have those jobs.

The newspaper shared the article on Facebook. A response to the post was generated from Persaud’s Facebook account, but Persaud alleged that his father, not he, posted the comment. The comment expressed a view about which workers should get the good oil jobs. Thus, as alleged by Persaud, he did not engage in any First Amendment activity, i.e. he did not engage in free speech activities.

After the post, the DOF allegedly received some complaints from the public about the post from Persaud’s account. This lead to investigations from two internal DOF agencies – the Department Advocate and the EEO. This, in turn, led to charges being brought against Persaud. The charges alleged that the Facebook comment violated the agency’s code of conduct and social media policy, and that Persaud did not participate in the investigation concerning the comment.

Ultimately, an administrative law judge held a hearing and upheld the charges. She recommended the penalty of termination, and Persaud was then terminated.

Two threshold issues immediately presented themselves in the case: (1) since Persaud did not say anything himself, but rather he alleged that his father made the speech, could Persaud maintain a First Amendment claim? (2) does the administrative law judge’s decision prohibit Persaud from bringing a lawsuit?

On the first question, in 2016, the U.S. Supreme Court issued a decision called Heffernan v. City of Peterson. The Heffernan case established “perceived” First Amendment cases. Basically, if a government actor believes that an individual has engaged in First Amendment speech, but the individual has not actually engaged in speech, then the individual could still have a First Amendment claim. Thus, under Heffernan, Persaud appeared to have a case of First Amendment retaliation.

But, did the ALJ’s decision bar a lawsuit? Because Persaud did not allege that he had a First Amendment claim in the course of the termination hearing, the ALJ did not have an opportunity to rule on the issue. So, the termination hearing should not bar a lawsuit.

Persaud tested these legal waters by filing his case in the Southern District of New York. Not surprisingly, the City immediately moved to dismiss the case arguing that (1) Persaud’s complaint did not show that the Defendants intended to punish him for the speech (lack of causation) and (2) that the ALJ’s decision barred the claims (legally, called collateral estoppel). Judge Vyskocil denied the motion, noting the Complaint had alleged sufficient facts to support the claims and that because Persaud did not allege First Amendment retaliation before the ALJ, his claims were not barred.

The case continued and the parties exchanged discovery and took depositions. At the end of discovery, the City against asked the Court to dismiss the case. Again, the City argued, among other things, that Persaud did not show that the Defendants had the requisite intent (called causation) and that, regardless, its interest in preserving a harmonious work environment outweighed the First Amendment value of the speech, and the Facebook post risked disrupting that harmony. Accordingly, the City argued had a right to terminate Persaud.

In a detailed, thoughtful, and lengthy decision, Judge Submaranian rejected all of the City’s arguments. First, as pointed out by F&W, the charges issued against Persaud recited the entirety of the Facebook post. When that happens, appellate courts rule that a plaintiff has produced direct evidence of retaliation. Judge Submaranian accepted the argument and held that Persaud did not have to produce any further evidence of retaliation (causation), even though he had done so in briefing.

Next, Defendants argued that they would have fired Persaud, even in the absence of the First Amendment speech. The Court resoundingly rejected this argument, as well, finding the City’s evidence in support to be “not exactly show-stopping,” consisting primarily of their own statements.

Finally, the Defendants argued that their interest in maintaining harmony between co-workers outweighed the First Amendment importance of the speech. Again, Judge Submaranian rejected the argument without reaching the question of the speech’s importance. Instead, he determined that the City had not shown, beyond dispute, that it had any interest in regulating the speech.

As an aside, Judge Submaranian’s decision also went into great detail about another tricky legal issue. There is no question that individual employees of a city or municipality may be held liable for constitutional violations. But, cities and other municipalities are not automatically liable for those individuals’ violations.

Instead, plaintiffs must generally show that a policy or custom of the city caused the constitutional violation (called Monell liability, after the Supreme Court case setting this standard). The intricacies of this legal quirk are beyond the scope of this blog, but Judge Submaranian detailed the development of the law in this area and ultimately held that because the individual defendants in Persaud’s case relied on the City’s social media policy to terminate Persaud, then the City could be liable.

In sum, F&W has defeated each of the City’s arguments made across two motions, and which were considered by two different judges. This unusual and challenging case survived all the City’s attempts to dismiss it. The case is now slated to go to trial before the fall.

If you have questions about First Amendment retaliation, based on perceived or actual First Amendment activity, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our office phone number is (631) 352-0050.

Non-compete agreements are contracts (or provisions in contracts) which limit or bar an employee or worker from working in a similar industry or from opening a business in the same or similar industry as their current employer. For example, non-competes are widely used in the sales and could limit a pharmaceutical salesperson from leaving Drug Company A to sell for a Drug Company B. Since non-competes will generally be imposed by a prospective employer as a condition of employment, employees and workers typically have no ability to negotiate the terms and must accept the conditions imposed, if they want the job.

New York disfavors non-competes, but nonetheless, courts will enforce non-competes if the terms are reasonable, including in time, scope, and geography. In other words, courts are more inclined to enforce non-competes if its terms last for just a year, if it is limited to a narrow industry, and if it’s limited to, for instance, a 25 mile radius around the employer’s main headquarters.

Non-competes are often used, as noted, for sales positions and other white collar jobs, but more and more frequently, non-competes are creeping into other industries. States have recently brought lawsuits against some fast food chains for using non-competes to limit employees who work as cashiers and/or cooks.

Opponents of non-competes criticize them as, among other things, a tool to control wages, to inhibit employees from growing and finding better jobs, and to limit competition. Proponents argue, among other things, that non-competes are essential to maintain trade secrets.

Notwithstanding the debate, the FTC has no voted to ban most non-competes across the United States. The FTC enforces anti-trust law. Five voting commissioners who are appointed by the President control the FTC. Currently, three Democrats and two Republicans sit on the FTC and the vote to implement the rule followed those party lines.

According to the FTC, the rule is expected to increase worker “earnings” by up to $488 billion over ten years. The FTC further believes the rule will lead to 8,500 new businesses being created each year and will result in reduced health care costs. It further expects an increase in “innovation” with the filing of more patents each year.

The rule not only bans non-competes moving forward, but also renders existing non-competes unenforceable. The rule, however, exempts “senior executives”, defined as workers earning more than $151,164.00 annually and who are in policy making positions. The rule further requires that employers who have existing non-competes send notices to workers (other than those that the rule exempts), advising the workers that the company will not enforce any non-compete that might apply to them.

The FTC bases legal authority in its rule implementation on its finding that non-competes “negatively affect conditions in labor markets”, thus they are an unfair method of competition, which is a violation of the FTC Act. Despite this finding, it is likely that one or more lawsuits will be filed to challenge the rule and it is likely that at least some of those challenges will argue that the FTC lacks legal authority to implement such a rule.

Notably, the FTC identifies lawful alternatives to non-competes. Most notable and practical are non-disclosure agreements and trade secret laws. The FTC finds these alternatives to be “well established” methods of protecting proprietary and sensitive information. The FTC also notes that employers could consider improving wages and working conditions, as incentives to retain workers “on the merits.”

The rule is set to take effect in August, but as noted, we expect multiple legal challenges to the rule. Nonetheless, businesses should immediately start considering plans to protect their legitimate business concerns which may have, in the past, been addressed by using non-compete agreements.

The Long Island employment lawyers at Famighetti & Weinick PLLC are experienced in drafting and litigating non-compete agreements. We remain tuned into the legal developments related to the FTC’s rule concerning non-competes and will post updates to our social media sites and blog.

Whether you’re an employee beholden to a non-compete agreement or a business which relies on the protections of non-competes with your employees, F&W can help you navigate this confusing time. You can speak to one our employment lawyers at (631) 352-0050.

In Muldrow, the female plaintiff was a plain clothes police officer assigned to a special Intelligence Division. By virtue of this assignment, Muldrow received what could only be reasonably viewed as employment benefits, though not in the traditional sense. Muldrow did not receive extra pay or better health care benefits. Rather, Muldrow received other perks such as FBI credentials and use of an unmarked police car which she could take home.

Eventually a new commander of Muldrow’s unit took over. According to Muldrow’s lawsuit, the new commander made comments suggestive of a sex based animus. For instance, he referred to Muldrow as “Mrs.”, rather than Sergeant, as was customary. Further, according to Muldrow, the commander transferred her out of the unit, in order to replace her with a male officer.

Indeed, the police department transferred Muldrow to a uniformed position in a precinct. Her pay and rank remained the same, but other aspects of her job changed. For example, instead of working alongside high ranking police officials in the Intelligence Unit, she supervised neighborhood patrol officers and performed mundane administrative duties, including reviewing reports and arrest records. Further, she lost her FBI credentials and use of the unmarked car, and instead of working a regular workweek schedule, she worked a rotating schedule which included weekends.

Muldrow alleged that the transfer constituted unlawful employment discrimination based on sex, in violation of Title VII, the federal workplace anti-discrimination statute. In court, however, Muldrow faced an obstacle to proving her case. Across the country, appellate courts have been ruling that to prove a discrimination case, employees must prove that they faced an employment action which was “significant,” “material,” or some other similarly heightened level of harm. To meet this standard, courts have generally required some showing of a change to the employee’s pay, benefits, or other compensation.

Indeed, the trial court dismissed Muldrow’s case, holding that her transfer was not significant because it did not produce a material employment disadvantage. The Eighth Circuit Court of Appeals agreed and held that because Muldrow did not and could not show the transfer caused a diminution to her title, salary, or benefits, she could not prove a discrimination case.

As observed by SCOTUS, courts which have applied the heightened significant harm standard have dismissed employment discrimination cases where an employee was assigned to work at a different job site next to a 14 x 22 foot wind tunnel, where a worker was assigned to a position which requires only nighttime work, and where a school principal was required to accept a position supervising fewer employees in a non-school based administrative role. In other words, SCOTUS was suggesting that these harms should be sufficient to support an employment discrimination case, but that courts improperly dismissed them.

In Muldrow, SCOTUS emphatically rejected this approach, noting explicitly that “this [Muldrow] decision changes the legal standard used in any circuit that has previously required ‘significant’, ‘material,’ or ‘serious injury.'” SCOTUS determined that nowhere in the text of the statute does Congress require that an employee show a harm which is significant. Admonishing courts which applied a showing of significant harm, SCOTUS noted that those courts added words to a law which was passed by Congress, and words which Congress did not include in the statute.

Instead of the significant harm standard, SCOTUS adopted a standard which now requires that employees simply show that they were treated worse because of sex, or because of another protected trait.

In Muldrow’s case, SCOTUS had no problem concluding that, based on the new and proper standard, Muldrow’s transfer was sufficiently disadvantageous to her, constituting worse treatment based on sex. In fact, Justice Kagan, writing for the majority, noted that Muldrow was worse off several times over.

In sum, Muldrow is remarkably important and momentous decision in the world of employment discrimination law. Countless cases have been dismissed over the years because Courts applied an improper heightened significant harm standard. Though those cases cannot now be resurrected, future plaintiffs will have an easier time establishing their employment discrimination claims brought under Title VII.

If you have questions about the Muldrow decision, the harm requirement for an employment discrimination claim, or about employment discrimination in general, please call one of our employment discrimination lawyers. The best number to use to contact us is (631) 352-0050. More information is available on our website. Remember to follow our social media to stay update on future employment law news.

In Bart v. Globus Corporation, the employer, Globus Corp., accused an employee, Elaine Bart, of falsifying food logs, maintained by the company to ensure health and safety. Globus fired Bart. Bart admitted that she violated the food log policy, but nonetheless, she alleged that the termination decision was made based on her gender. Accordingly, Bart sued Globus pursuant to, among other statutes, Title VII, the federal workplace anti-discrimination law.

To a layperson, this may seem like an open and shut case. The employer accused the employee of violating policy, the employee admitted to violating policy, and the employer fired the employee for violating the policy. How could this be unlawful discrimination then?

The answer is a complicated legal one. To put it simply, Congress has codified language in Title VII which allows for mixed-motive cases. This means that if an employer was motivated to fire an employee based on a discriminatory reason, the firing was unlawful, even if the employer also had legitimate, non-discriminatory reasons for the termination.

To understand mixed-motive cases, consider that you’re buying a house. You may like a particular house because it has three bathrooms, four bedrooms, a two-car garage, and granite counter tops in the kitchen. But, the house may also be in a great school district and this factor has motivated you to buy this particular house. All of these features of the house were part of the decision to buy the house, but you also ultimately decided to select this particular house, because of the school district. Thus, there are mixed reasons to buy the house – the number of bedrooms and bathrooms, granite, garage, — and the school district. The school district was a motivating factor to buy this particular house.

The same concept applies to discrimination cases. Title VII prohibits workplace discrimination based on characteristics such as sex, gender, national origin, race, and religion. An employer may decide to terminate an employee for many reasons, such as tardiness, poor performance, and/or insubordination. But, the if the employer also considered the employee’s race or religion when making the termination decision, it violated Title VII.

The difficulty comes in trying to find the unlawful reason. Rarely will an employer admit that it is discriminating against an employer. Over the years, courts have developed a test to analyze discrimination claims. Know as McDonnell-Douglas, this test first requires an employee to make a minimal showing of discrimination. Employees can do this with circumstantial evidence, such as showing that the employee has been treated differently than other employees outside of the protected class.

After meeting this burden, an employer can show that the employment decision was made for a legitimate, non-discriminatory reason. This is also a minimal showing. Then, the test moves to the “pretext” analysis, the heart of the issue in the Bart decision.

As observed by the Second Circuit, the pretext analysis has often been misunderstood and thus, misapplied, by trial courts. Some courts have required that an employee show that the employer’s “legitimate” reason for employment decision is false or merely a pre-text to cover up unlawful discrimination. As explained by the Bart decision, this application of McDonnell-Douglas is incorrect.

In Bart, the Second Circuit succinctly re-stated what an employee must show at the “pretext” stage of the analysis — plaintiffs need only show that the employer’s stated reason was not the real reason, even if the reason is true or factually accurate. In other words, an employee can show that the employer’s stated reason was not the whole reason, but rather that discrimination was “more likely than not” a factor in the decision, either in whole or in part. Notably, employees can make such a showing by relying on evidence it presented on its initial burden, and may not need to show any more.

Applying these principles to Bart, the Second Circuit noted that the employee produced evidence of gender-based animus towards her. A manager stated to her that he did not think women should be managers. Even though Bart admitted to violating company policy, it can also be true that she was terminated, in part, because of her gender. That possibility existed in the case because evidence showed that the decision-maker harbored a discriminatory animus, namely, the evidence of his gender based comments.

Discrimination cases are tricky because employers try to conceal their discriminatory motivations. Trained employment lawyers who understand the law can find the bits and pieces of evidence to establish an employment discrimination case.

If you have questions about proving an employment discrimination case, or about the Bart decision, contact a Long Island employment lawyer at (631) 352-0050. More information is available on our website at http://linycemploymentlaw.com.

Thus, for an individual to have a lawsuit under the First Amendment for a violation of free speech, the individual must first be able to prove “state action,” i.e. that the government, and not a private individual, caused the deprivation of rights.

Usually, this distinction is not difficult. Typically, its apparent whether the government is restricting speech or whether a private individual is restricting speech. On March 18, 2024, however, the Supreme Court issued a decision in a case where the distinction was not easy to determine. Today’s Long Island employment law blog discusses the decision issued in Lindke v. Freed.

Lindke v. Freed presented the question of whether a government employee who maintains a personal Facebook page, is a state actor when the employee blocks particular individuals from his Facebook page.

In Lindke, the defendant, Freed, created a Facebook account in 2008, while in college, and set his privacy so that only friends could view his page. His “friends” grew over the years, eventually exceeding the 5,000 friend limit imposed by Facebook. Freed then converted his page to a public page, allowing anyone with an account to view his page. This, in turn, required that Freed alter his account type and he chose to categorize himself as a public figure.

In 2014, Freed became the city manager for Port Huron, Michigan. Freed added his work information to his Facebook profile, including, among other things, his title and email address. As described by the Court, Freed posted on his Facebook page “prolifically”, adding pictures of his daughter, bible verses, and pictures of home improvement projects.

But, Freed also posted information about his job. For example, he posted city communications about financial reports, and new city services. Freed’s page readers would sometimes interact with his posts, offering typical Facebook comments such as “good job.” Other times, readers would ask Freed specific questions about city services or ordinances, such as regulations concerning property owners keeping chickens. Freed would reply to many of the comments and questions, but occasionally, Freed would delete comments he considered derogatory or stupid.

During the pandemic, Freed continued posting on Facebook, typically about how his family was managing through it. He also posted more specific COVID-19 information such as case counts and hospitalization. Freed also posted some city specific information, including city press releases and a description of the city’s hiring freeze.

The plaintiff, Lindke, was dissatisfied with the city’s handling of the pandemic. He visited Freed’s Facebook page and expressed this dissatisfaction with comments describing the city’s response as, for example, “abysmal”. At first, Freed deleted Lindke’s comments, but later, Freed blocked Lindke entirely from his Facebook page. This resulted in Lindke suing Freed for violating the First Amendment, claiming that Freed’s Facebook page was a public forum.

The trial court dismissed Lindke’s lawsuit and the appellate court affirmed the dismissal. The basis of the dismissal was that Lindke was not acting in his official capacity as a state official. Without state action, a First Amendment case cannot be maintained.

Things get more complex here. The Supreme Court took the case because different jurisdictions across the country disagreed on which legal test should be used to determine whether an individual is a state actor or whether the individual is acting as a private citizen. In the Lindke case, the Supreme Court set the standard for all courts in the country.

The Constitution does not establish a private right action for a First Amendment violations. In plain English, this means that individuals cannot sue the government for violating their First Amendment rights. Rather, to enable such lawsuits, Congress passed a statute, codified at 42 U.S.C. § 1983 (commonly referred to as Section 1983). Section 1983 allows individuals to sue the government when any person acting under color of law deprives a person of a federal constitutional or statutory right.

In Section 1983 cases, there is rarely a question about whether an individual is acting under color of law. Indeed, courts and litigants often gloss over this question in legal arguments about the merits of a Section 1983 case. Individuals plainly act under color of law when acting in official capacities as police officers (in a police misconduct case), public school officials, or prison officials. Individuals are plainly not acting under color of law when they are acting as a parent in silencing a child or as a neighbor in a noise dispute.

In Lindke, the issue was murkier. Freed did not relinquish his First Amendment rights when became city manager. He was able to maintain a private life, and to convey information he may have learned by virtue of his government employment. But, this does not mean that Freed did not act in an official capacity by blocking by Linkde.

To determine whether a public employee’s social media activity is state action, the Supreme Court set a two part test. First, the employee must have actual authority to speak on behalf of the government. Second, the employee must have purported to use that authority when speaking on social media.

The crux of the Lindke decision seems to be the Supreme Court’s recognition that government employees should be able to share information related to their jobs without fear that their social media activity could be construed as state action, exposing them to First Amendment liability. Instead of blanket immunity, the Supreme Court established a reasonable test to determine whether social media activity is state action or private action.

Notably, the Supreme Court’s decision suggests some best practices which could limit liability and clearly delineate private action from state action. For instance, government workers who identify their job title on social media should clearly designate their personal Facebook account as a personal account, unrelated to the government. Such officials should not use “mixed use” accounts, by which they make official and personal comments under the same account. Officials who are indeed authorized to speak on behalf a government, should identify one Facebook account as the official account, and another as the personal account.

Ultimately, Lindke’s case was returned to the trial court, so that it could determine the outcome in accordance with the test set forth by the Supreme Court. A final note, the Lindke decision was a unanimous decision of the Court.

Today’s blog is informational only and should not be accepted as legal advice. For advice about particular situations, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050.

Can Public Employees Unintentionally Convert Their Private Facebook Account Into a Public Forum Subject to the First Amendment?

On February 15, 2024, New York’s highest court, the Court of Appeals, issued a decision which discusses how courts should evaluate employment retaliation cases. Today’s Long Island employment law blog discusses the decision in Clifton Park Apartments, LLC v. New York State Division of Human Rights. Spoiler alert: The decision is mostly favorable for employees.

The facts of the Clifton Park case are as follows. Leigh Renner worked for a company called CityVision. CityVision is a not-for-profit corporation which tests housing facilities for discriminatory practices. CityVision’s employees pose as prospective tenants and call housing facilities to seek to rent an apartment. One housing facility which Renner called, Pine Ridge, was owned by Clifton Park Apartments, LLC.

CityVision alleged that when Renner called Pine Ridge, it steered her to a different apartment complex. CityVision alleged that Pine Ridge did so, after discovering that Renner intended to move into the apartment with her children. This, CityVision alleged, constituted discrimination based on familial status. Accordingly, CityVision filed a charge of discrimination with the New York State Division of Human Rights, New York’s agency which investigates claims of employment and housing discrimination, among other things.

The Division investigated the claims, but concluded probable cause did not exist to support a finding of discrimination based on familial status. The Division dismissed the complaint.

After the dismissal, Pine Ridge’s lawyer sent a letter to CityVision and Renner. The letter accused CityVision and Renner of making false, fraudulent and libelous allegations in its Complaint to the Division. The letter further said, among other things, that Pine Ridge intended to look to CityVision and Renner for damages.

CityVision and Renner then filed another complaint with the Division alleging that Pine Ridge’s letter constituted retaliation for filing the first complaint. The charge led to a public hearing which is akin to a trial. An administrative law judge (“ALJ”) hears the evidence and testimony and decides whether there was in fact unlawful conduct.

At the hearing, evidence from CityVision showed that staff was shocked by the letter and that they diverted resources to find a lawyer. The ALJ made two decisions which are ultimately relevant to the Court of Appeals’ decision. First, the ALJ determined that the letter was retaliatory. Second, the ALJ required Pine Ridge to prove that the first charge of discrimination was made in bad faith. The ALJ concluded that Pine Ridge did not do so, and that CityVision had proven its retaliation case.

Pine Ridge sought to annul the Division’s decision and the Division cross-filed to enforce its determination. The case wound up in New York’s first level appeals courts, the Appellate Division.

The Appellate Division annulled the determination, making two critical findings. The Appellate Division determined that the Division had improperly required Pine Ridge, instead of CityVision, to prove the first element of a retaliation case – whether the complainant had a good faith belief that the respondent was engaging in discrimination.

But, the Appellate Division also ruled that “the mere sending of a letter” does not constitute an adverse action, meaning the action the respondent took was not severe enough to constitute unlawful conduct.

The case then wound up in the Court of Appeals. The first question is whether the letter is conduct which can lawfully constitute retaliation. For background, not every action which is taken by a defendant in a discrimination or retaliation case is unlawful, even if there is an unlawful motivation. The action must be an adverse action, as defined by law. If, for example, an employee complains to the employer about feeling discriminated at work based on race, then the employer moves the employee’s desk to a different area of the office because of the complaint, the action is probably not an adverse action as defined by law.

The definition of an adverse action varies between discrimination and retaliation cases. In retaliation cases, an adverse action is one which would dissuade a reasonable worker from making or supporting a charge of discrimination. This standard derives from a Supreme Court case known as Burlington Northern. The Court of Appeals noted that the heart of the Burlington Northern decision requires a retaliation plaintiff to show an injury or harm and that Burlington Northern applies to New York’s anti-retaliation provision.

Noting that New York’s discrimination laws require courts to interpret the law “liberally,” the Court of Appeals ruled that the Appellate Division should have not ruled that the letter is not adverse action as a matter of law. Rather, the court question is a fact-specific determination which must be determined by the trier of fact.

In this case, the ALJ determined that the letter was an adverse action. The Court of Appeals concluded that the ALJ’s decision was supported and rational. Specifically, the letter required CityVision to divert resources, thus the letter could have dissuaded a reasonable person from pursuing a claim of discrimination.

The Court of Appeals was also required to determine whether the first element of a retaliation claim was handled appropriately by the ALJ. The first element requires that a plaintiff’s complaint of discrimination be made in good faith. The ALJ required Pine Ridge to prove that the complaint was not made in good faith. But, precedent requires that the plaintiff (or complainant) not the defendant (or respondent) prove that it had a reasonable belief that the defendant engaged in unlawful discrimination. Thus, the ALJ improperly decided the first element.

Though the Clifton Park case is a housing discrimination case, its lessons are applicable to employment discrimination. Employees, employers, and practitioners in the area of employment law should take note of the Court of Appeals decision, paying close to attention to adverse action analysis.

Contact us at (631) 352-0050 if you have questions about unlawful retaliation.

Court of Appeals clarifies retaliatory adverse actions

The Freelance Isn’t Free Act

A hotly contested issue in employment law is whether workers are independent contractors or employees. Many employers try to categorize workers as independent contractors to avoid many of the legal obligations that come along with adding an employee to payroll. The Freelance Isn’t Free Act is an attempt to add some protections for independent contractors.

The Freelance Isn’t Free Act applies to “freelance workers.” Freelance workers are defined essentially as independent contractors, but the definition also includes independent contractors who operate under a corporate or trade name, not just under their individual name.

The Freelance Isn’t Free Act requires use of a written contract between the business and independent contractor. The contract is required when either (a) a single project on which the worker will work costs more than $800 or (b) within 120 days, the independent contractor provides multiple services which exceeds $800, collectively.

The law requires that the contract contain certain information, including: names and contact information for the worker and business; a description of the services to be performed; the rate of pay and the date on which payment is due; and a date when the worker must submit an invoice to the business in order to be paid on time. The law also requires that the business pay the worker pursuant to the contract, or no later than 30 days after completion of the work.

Like traditional employment laws, the Freelance Isn’t Free Act contains an anti-retaliation provision which prohibits businesses from discriminating or retaliating against workers who exercise or attempt to exercise their rights under the act. Businesses who violate the law may be subject to investigations by the Department of Law or may face civil actions brought by the worker. Workers have six years to file claims and may recover actual damages, double damages, and attorneys’ fees and costs.

Human Rights Law Statute of Limitations

The New York Human Rights Law is New York’s workplace anti-discrimination law. The law provided for confusing patchwork of statutes of limitations. A statute of limitation is the time by which a lawsuit must be filed for a particular type of claim. For example, generally in New York, to sue for a breach of contract the lawsuit must be filed within six years of the breach. To sue for injuries sustained from a car accident (negligence) the case must be started within three years of the injury.

Under the Human Rights Law, workers could either file a claim with the New York State Division of Human Rights, or file the case directly in court. If filing with the Division, the claim must have been filed within one year of the discrimination. Several years ago, that deadline was extended to three years, but just for sexual harassment claims. To file in court, the statute of limitations has been three years.

In 2024, the statute of limitations for all discrimination and retaliation claims filed in the New York State Division of Human Rights is now three years.

Confidentiality in Settlement Agreements

Several years ago, New York passed a law regulating confidentiality in settlement agreements arising from claims of workplace harassment. The law required that if confidentiality were included as part of the agreement (a) confidentiality would have to be the preference of the employee; (b) the confidentiality agreement would have to be in a separate document from the settlement agreement; and (c) the employee had to wait 21 days as a consideration period, before signing the agreement.

In 2024 amendments, the 21 day waiting period is waivable. However, this applies only in cases where the settlement is entered into pre-litigation. In addition, the law not extends to independent contractors, and it extends to all claims of discrimination, harassment, and retaliation, when the agreement requires liquidated damages for violation of a non-disclosure or non-disparagement provision, requires partial or complete forfeiture of a settlement payment for violation of a non-disclosure or non-disparagement provision, or where the agreement requires the victim to affirmatively state that he or she was not subject to unlawful discrimination.

Wage and Hour Law Round-up

• Salary basis test for exempt employees is increased from $1,125 per week to $1,200 per week
• Minimum wage increases: NYC, Westchester, and Long Island: $16.00 per hour (up from $15)
• Definition of clerical and other worker: executives, administrators, and professional employees must earn $1300 per week, instead of $900

Various Other Changes

• Social media law: Employers cannot demand applicants for usernames and passwords for social media accounts, or demand access to an employee’s social media accounts
• Height and weight discrimination is unlawful in New York City

If you have questions about these employment law changes, or about existing employment laws, contact a New York employment law attorney at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050 and our website is http://linycemploymentlaw.com.

2024 Employment Law Changes

In 2014, F&W opened its doors. As part of its branding, F&W embraced brown colors to invoke a sense of traditional law firms’ offices which typically use woods to adorn entrances, hallways, and conference rooms. From the earliest iterations of the firm’s website to the most recent, brown played a prominent role in the firm’s web designs.

As the firm approaches its 10th anniversary year, the time has come to move away from tradition and towards embracing F&W’s own unique identity. The website’s new appearance embraces important elements from past web designs, but also introduces new colors and symbols to define the firm’s identity.

We have previously blogged about the firm’s orange logo tile and its symbolism. We noted that orange represents many of the values embraced by the firm such as creativity, determination, and enthusiasm. We also wrote about orange’s psychological effects, including its ability to invoke a positive outlook on life, its ability to keep people motivated, and its tendency to offer strength in difficult times. Accordingly, orange is not going anywhere. The F&W orange tile remains prominently featured at the top of the website, displayed across all pages on the site. Moreover, orange is sprinkled across other elements of the redesigned site to mirror the logo.

FW Orange Logo

The full F&W logo has not gone completely untouched though. The Famighetti & Weinick lettering, previously white, has been colored with “FW Blue.” The blue mirrors the most prominent changes to the website — the move away from the darker browns and towards brighter whites, greys, and — FW Blue. Brown title bars are now FW Blue, background images are shaded in lighter grays and blue, and the overall background color of the website has shifted to white.

These changes have the practical purpose of making the website’s overall look and feel to be cleaner and fresher, with easier readability. But, the changes are not without symbolic purpose. The orange and blue used in the logo and throughout the site are a reference to F&W’s beginnings. Stay tuned for a featured 10th anniversary blog detailing the firm’s genesis story, but as a sneak preview, the firm’s founders, Peter Famighetti and Matt Weinick, first met while working as Deputy County Attorneys for the County of Nassau. Nassau’s colors are orange and blue, thus the firm’s new color palette – blue and orange – is an homage to that history.

Introducing FW Blue

The use of white as the primary background color represents the firm’s straightforward and practical approach to the practice of law. The firm strives to provide its clients with realistic legal advice tailored to meet the needs of each individual case, and with a strategy developed to meet each individual client’s goals. White signals this “blank canvas” approach to helping clients, instead of a cookie cutter approach to clients’ cases.

Finally, on color, brown is not completely abandoned. As with other colors that represent the past and the firm’s history, brown lettering returns to the redesign in subtle, yet important ways. For instance, brown is used for some internal site links, and for the invitation to accept an offer for free consultations.

The redesign invokes other imagery, as well. The heading banner displayed across all pages of the website features Pete and Matt standing in front of a rotating background of images. The first image is Lady Justice. Though perhaps a bit cliche for a law firm, there nonetheless remains no greater symbol of a system of justice than Lady Justice. The picture is intended to remind us all of the values and principles upon which our legal system is founded.

The second image is the downtown Manhattan skyline, back-dropped against the Brooklyn Bridge, which is the central component of the intended messaging. The Brooklyn Bridge almost directly connects the two primary courts in which F&W works. On the Manhattan side of the Brooklyn Bridge sits the courthouse for the United States District Court of the Southern District of New York. Located on Pearl Street, just blocks from the bridge, the S.D.N.Y. is the federal court which serves Manhattan, the Bronx, and many Hudson Valley counties.

On the Brooklyn side, the bridge is anchored near Cadman Plaza, home to the courthouse for the United States District Court of the Eastern District of New York. The E.D.N.Y. serves Staten Island, Brooklyn, Queens, and Long Island. Because the civil rights and employment cases handled by F&W almost always involve federal laws, the overwhelming majority of F&W’s cases are litigated in either the S.D.N.Y. or the E.D.N.Y. The view of the bridge, from east towards the west, also signifies the firm’s Long Island home base.

The final enhancement is fresh photography. This past summer, Pete and Matt spent an afternoon with a professional head-shot photographer. The photographer employs a psychological approach to his work designed to capture, not just the individual’s image, but the individual’s essence.

Pete works with photographer to draw out his essence

After the shoot, the partners reviewed perhaps hundreds of photos to find the right ones. The final products have been integrated into the new web design, including in a new “meet our team” section directly on the homepage.

Do you see our essence?

Though the appearance has changed, the content that F&W has developed over the past decade remains consistent. Website users can expect access to the perhaps hundreds of blogs that the firm has published about legal and firm related current events, developments in the areas of employment and civil rights law, and other news of interest. Spanish content remains accessible as does the catalog of instances in which the firm and/or its cases have received press attention.

F&W hopes that users enjoy the new website experience. This is just the first step to kicking off F&W’s 10th anniversary year. Be sure to subscribe to our social media channels (links at the bottom of the page) to be the first to learn about 10th anniversary celebration news and events.

Employment lawyers launch website redesign