March 23, 2023

Non-Disparagement and Confidentiality Clauses in Severance Agreements Declared Unlawful

When employers offer severance pay to a terminated employee, the employers typically require that, before receiving the pay, the employee sign a severance agreement. Severance agreements primarily are used to obtain a waiver from the employee of any legal claims the employee may have had against the employer, known as a general release. But, many employers also include non-disparagement and confidentiality clauses. Under a recent ruling from the National Labor Relations Board (NLRB), non-disparagement and confidentiality clauses are unlawful.

What are non-disparagement and confidentiality clauses and what does the NLRB’s ruling mean? Today’s Long Island employment law blog explains.

As noted, when employers often severance pay to an employee, the employee usually must also sign a severance agreement. The agreement sets forth the terms to which the employee must agree, in order to receive and keep the severance pay. Among the many provisions generally included in severance agreements is a non-disparagement provision.

February 23, 2023

High Income Earners May Be Entitled to Overtime

by Famighetti & Weinick

The Fair Labor Standards Act is a federal law which requires employers to pay certain employees a minimum wage and overtime. Like most laws, the FLSA contains various exemptions. On February 22, 2023, the Supreme Court of the United States issued a decision in the case Helix Energy Solutions Group, Inc. v. Hewitt, an FLSA case which addressed the question of whether a high earning employee is exempt from the FLSA’s overtime requirement, if the employer pays the employee based on a daily rate. Today’s Long Island employment law blog looks at the Helix decision.

Unless an exemption applies, the FLSA requires that employers pay overtime to employees who work more than 40 hours in a workweek. Exemptions under the FLSA include employees who work in an executive, professional, or administrative capacity. In Helix, the court looked at the executive exemption.

The executive exemption to the FLSA generally applies to workers if a three part test is met. First, the employer must pay the employee on a salary basis. Second, the salary must meet a specified amount set by regulation. Third, the nature of the employee’s job must relate to executive responsibilities, as those responsibilities are established by law.

November 2, 2022

Weinick Sworn in to Federal Mediator Panel

by Famighetti & Weinick

On November 2, 2022, United States Magistrate Judge Robert Levy swore in Long Island employment lawyer Matthew Weinick as a mediator for the Eastern District of New York. The moment marks the culmination of years of work Weinick has spent training to serve as a mediator for the EDNY panel.

Mediation is an informal way for parties to a dispute to work towards a negotiated settlement, instead of having a judge or jury decide the outcome. Advantages to mediation include that it is often quicker and less expensive than a lawsuit, and the parties control the outcome of the case, instead of a court. Because of the efficiencies of mediation, courts such as the EDNY, often order parties to try mediation before the case continues in court.

The path towards Weinick joining the EDNY mediation panel started many years ago. Weinick first applied for and was accepted to the EDNY’s pro bono mediation advocacy panel. On the advocacy panel, Weinick represented parties involved in lawsuits filed in the Eastern District of New York. The EDNY, as it is known, has jurisdiction over federal lawsuits arising in Staten Island, Brooklyn, Queens, Nassau, and Suffolk counties.

September 28, 2022

Firm Celebrates a Decade of Super Lawyers Selections, Opens Mediation Services Practice Area

by Famighetti & Weinick

Long Island employment lawyers Famighetti & Weinick PLLC are proud to announce that both partners, Matthew Weinick and Peter Famighetti, have been selected to the New York Metro Super Lawyers list. This marks the 10th consecutive year that the magazine selected Weinick and the 8th consecutive year for Famighetti. Additionally, the firm is announcing the opening of a new practice area – mediation services.

Firm Celebrates a Decade of Selections by Super Lawyers Magazine

In 2012, Super Lawyers magazine first selected Weinick for its “Rising Star” list. The Rising Star list is reserved for lawyers who have been practicing for less than 10 years or who are under 40 years old. Super Lawyers’ patented selection process results in just 2.5% of the lawyers in the state being selected for inclusion. Weinick made the cut for inclusion on each list from 2012 to 2018.

February 15, 2022

Congress Passes Law Prohibiting Mandatory Arbitration for Sexual Harassment Cases

by Famighetti & Weinick

The #MeToo movement highlighted the prevalence of sexual harassment in workplaces across the country and in New York. For years, if not decades, employers have had a variety of ways to keep instances of workplace sexual harassment in the dark. One way was confidential settlement agreements. In other words, employers could pay employees alleging sexual harassment to “keep quiet.”

Another way, was to require that employees who were alleging workplace sexual harassment fight their claims in mandatory secret arbitration, instead of publicly in court. Today’s Long Island employment law blog discusses a new law passed by Congress which addresses these forced arbitrations.

Since the beginning of the #MeToo movement’s growing publicity, lawmakers have worked to take away employer’s tools for silencing sexual harassment victims. Federally, Congress altered the tax code to prohibit payments to sexual harassment victims from being categorized as a deductible business expense when the employer requires confidentiality about the payment, as a term for payment. Arguably, the goal was to make employers re-consider whether payments should be confidential and to provide incentive for employers to remove confidentiality terms from settlement agreements. F&W would argue that this is not effective.

December 28, 2021

Updates to New York’s Whistleblower Law

by Famighetti & Weinick

Whistleblower retaliation is perhaps one of the most misunderstood employment law claims in New York. Many employees believe a broad whistleblower law protects a variety of employee conduct and that when employees complain about any number of workplace issues, they are automatically protected against retaliation by the employer.

In fact, New York’s whistleblower law is remarkably narrow. The New York employment lawyers at Famighetti & Weinick PLLC have previously blogged about the limitations of New York’s whisteblower statute, codified as New York Labor Law 740. But, on January 22, 2022, the law is set to expand. Today’s Long Island employment law blog explains the changes coming to New York’s whistleblower law.

Under the existing New York whistleblower law, workers in New York were protected against retaliation by employers when employees engaged in certain protected acts. To invoke the protections of the act, employees had to have disclosed an illegal activity of the employer. Further, it was not enough that the employer just engaged in unlawful activity. The violation must have threatened the health or safety of the public or constitute healthcare fraud. In other words, the law’s coverage was remarkably limited.

September 23, 2021

Judge Lifts Order Blocking NYC Vaccine Mandate

by Famighetti & Weinick

As we predicted when the order issued on September 15, 2021, Justice Laurence Love has lifted an order he issued which would have blocked a New York City Vaccine Mandate from taking effect. Last week, the court issued a temporary restraining order prohibiting a New York City law from taking effect which would have required City DOE employees, and others, to take the Covid-19 vaccine.

The September 15 order was issued without the Court having heard from New York City. Further, the order seemed to conflict with existing law concerning vaccine mandates. Thus, we opined that the order would not remain in effect very long.

Indeed, on September 22, 2021, the judge lifted order. In a written decision, Justice Love noted that he understands that many people have objections to the vaccine, whether it be based on religious grounds, medical reasons, or other personal beliefs. He further acknowledged that DOE employees have already persevered through working on the front lines of the crisis.

September 15, 2021

Judges Block New York Vaccine Mandates

by Famighetti & Weinick

On Tuesday September 14, 2021, two judges issued orders blocking vaccine mandate requirements from taking effect in New York. One ruling from a federal judge, blocks a state requirement concerning health care workers and another ruling from a state court judge blocks a New York City requirement concerning city workers. What do these rulings mean for the future of the mandates? Today’s Long Island employment law blog discusses these orders.

Federal Judge Blocks State Health Care Worker Vaccine Mandate

On August 26, 2021, New York State’s Department of Health issued a rule that requires that healthcare workers in the state get a Covid-19 vaccine. Workers in hospitals and nursing homes must receive a first dose by September 27, 2021 and others must receive a first dose by October 7.

August 28, 2021

COVID-19 Vaccine Mandate FAQ

by Famighetti & Weinick

Across the United States, COVID-19 vaccine mandates are rolling out. Schools, colleges, employers, states, and health care facilities are requiring students, employees, and others to be vaccinated against COVID-19. Since the mandates have been announced, the employment and civil rights attorneys at Famighetti & Weinick PLLC have been busy fielding calls about individuals concerned about the vaccination requirements. Today’s Long Island employment law blog provides answers to Frequently Asked Questions about COVID-19 vaccination mandates.

Can my employer require that I take the COVID-19 vaccination?

Generally, yes. At least one federal court as well as the federal government’s Equal Employment Opportunity Commission (EEOC), have suggested that employers can mandate that employees get the COVID-19 vaccine. Employers may be required to provide reasonable accommodations or exemptions for employees who cannot take the vaccine because of a medical condition or a sincerely held religious belief. General objections to the vaccine are not a lawful basis to refuse. We previously blogged extensively about this question. To learn more about the court decision concerning COVID-19 vaccination, click here. Our comprehensive blog about workplace vaccination requirements is here. Though we agree that it is not an ideal answer, a Texas court has suggested that if employees do not want to take the vaccine for reasons unrelated to a medical contraindication or religious belief, employees can quit and work for an employer that does not require vaccinations.

August 3, 2021

University Can Mandate Covid Vaccine for Students

by Famighetti & Weinick

Long Island civil rights attorneys Famighetti & Weinick PLLC have been following the law concerning mandatory vaccinations. Recently, we blogged about the legality of workplaces requiring that employees be vaccinated. Throughout the pandemic, we opined that courts would give deference to government regulations aimed at curbing the spread of COVID-19, based on a 1905 Supreme Court case.

Throughout the summer of 2021, as vaccinations rates decline and the virus continues to spread, mandatory vaccination requirements are rolling out. Employers, governments, schools, colleges, and universities are all implementing vaccination requirement rules. In Indiana, Indiana University decided to require that all of its students must be vaccinated against COVID-19 to attend the school’s next semester.

Eight students challenged the University’s rule and the Seventh Circuit Court of Appeals heard the challenge. Today’s Long Island civil rights blog discusses the decision.

Long Island Employment Law Blog

Firm Celebrates a Decade of Selections by Super Lawyers Magazine

Federal Judge Blocks State Health Care Worker Vaccine Mandate