Employment

In a recent EDNY case, a plaintiff with mobility issues brought several claims against their apartment building under the ADA and FHA. The plaintiff alleged that the building had failed to make reasonable accommodations for their disability, had subjected them to a hostile housing environment, and had retaliated against them for engaging in protected activity under the FHA. However, the court granted the defendant's motion to dismiss all claims. The court found that the plaintiff had failed to allege that they had requested reasonable accommodations before filing their lawsuit, which was required to establish a claim under the FHA. The court also found that the plaintiff had failed to allege sufficiently severe and pervasive harassment to establish a claim for hostile housing environment under the FHA. Additionally, the court noted that a residential facility is not a public accommodation under the ADA, and that the plaintiff had failed to allege a concrete adverse action to establish a claim for retaliation under the FHA.

In conclusion, the case of Levy v. Lawrence Gardens Apartments Del, LLC, 2023 U.S. Dist. LEXIS 53346 (EDNY 2023) highlights the importance of understanding the requirements and limitations of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) in the context of discrimination claims related to housing. The ruling clarifies the necessary elements for claims of failure to make reasonable accommodations, hostile housing environment, and retaliation under the FHA, as well as the limited applicability of the ADA to residential facilities. Ultimately, the decision emphasizes the importance of carefully pleading and presenting evidence to meet the legal standards necessary to establish a violation of the FHA or ADA in housing discrimination cases.

Bashian & Papantoniou, P.C. is dedicated to shedding light on the critical issue of sexual harassment in the workplace. At Bashian & Papantoniou, P.C, we understand that sexual harassment is a pervasive problem that can significantly impact employees' well-being and job satisfaction. In this blog, we'll provide valuable insights into workplace sexual harassment, legal protections, and steps to take if you've been a victim or are concerned about this issue.

Table of Contents:

1. Understanding Workplace Sexual Harassment : Begin by gaining a comprehensive understanding of what constitutes sexual harassment in the workplace, including both quid pro quo and hostile work environment harassment.

2. Legal Framework : Explore the federal and state laws that protect employees from sexual harassment. Learn about Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC), and relevant state anti-discrimination statutes.

3. Types of Harassment : Discover the different forms of sexual harassment, from verbal and physical harassment to visual and online harassment. Understand the various ways it can manifest in the workplace.

4. Recognizing Sexual Harassment : Learn to identify the signs of sexual harassment, including subtle or indirect behaviors. Recognizing these signs is crucial to addressing the issue promptly.

5. Reporting Sexual Harassment : Understand the importance of reporting sexual harassment to your employer or HR department. We'll provide guidance on how to report incidents safely and effectively.

6. Documenting Harassment : Discover the importance of keeping records and documentation of incidents. Proper documentation can be essential when pursuing a legal claim.

7. Legal Remedies : Explore the legal remedies available to victims of sexual harassment. This section will cover filing a complaint with the EEOC, pursuing a lawsuit, and seeking compensation.

8. Retaliation : Learn about protection against retaliation for reporting sexual harassment. We'll discuss your rights and how to safeguard your employment status when taking action.

9. Preventing Sexual Harassment : Delve into strategies for preventing sexual harassment in the workplace, including employer responsibilities and employee training.

10. Support and Resources : Access a list of organizations, hotlines, and support networks dedicated to helping victims of sexual harassment. These resources can provide guidance and emotional support.

11. Case Studies : Explore real-life case studies of individuals who have successfully navigated employment discrimination claims related to sexual harassment. These stories can provide insight and inspiration.

12. Seek Legal Counsel : When facing sexual harassment, consider consulting an experienced employment discrimination attorney. Learn about the benefits of seeking legal counsel and how it can strengthen your case.

At Bashian & Papantoniou, we are committed to promoting a safe and inclusive workplace for all employees. Sexual harassment should never be tolerated, and victims should know their rights and legal options. This blog is intended to serve as a valuable resource for both employees and employers seeking to combat workplace sexual harassment effectively. Remember, you are not alone in this journey, and we are here to provide legal guidance and support when you need it most. Together, we can create workplaces free from discrimination and harassment.

Unfortunately, at least three times a year we have to explain to unwary clients that they cannot work for a certain company due to a restrictive covenant in their employment agreement, employee handbook, or company policy.  The disbelief lingers for quite some time – “How can they stop me from working at this new Company?  That is just not fair! They can’t actually enforce that provision, can they?”

The unfortunate truth is that a restrictive covenant provision (or more particularly, a non-compete provision) is indeed enforceable.  And whether you knew it at the time, if you signed an employment agreement with a non-compete provision, or if your employment agreement references the company handbook or certain company policies, and the handbook or policy have a non-compete provision, then you will be bound by those provisions.

And the likelihood that you will be subject to the non-compete is even greater if you didn’t have an attorney review your employment agreement before you signed it.  For instance, many employers will have a non-compete provision that is effective regardless if the employer terminates your employment with or without cause, or if you terminate your employment with or without good reason.  This means that if an employer terminated your employment for no reason at all, that you would still be subject to the non-compete provision.  Imagine the scenario, you arrive at work one day, your employer tells you that unfortunately you are being let go (for no apparent reason other than the company is not performing well).  You’re obviously not happy about being let go, but there is another job opportunity at a similar company and which is not too far away from where you live.  Then you realize (when your employer sends you their official termination notice letter which makes reference to the non-compete provision you agreed to when you signed your employment agreement) that you can’t work for that new company.

And that’s usually when we, the attorneys at Bashian & Papantoniou, receive a phone call asking if this could really be possible and if there is anything we could do to help.  Fortunately, most of the time we can help.

Don’t let this happen to you, call one of employment agreement attorneys in Long Island and New York today to review your employment agreement.

The Family and Medical Leave Act, passed in 1993, permits individuals to sue their employers for failing to provide time away from work under certain circumstances, including time to recover from an illness. The Supreme Court this week, in  Coleman v. Court of Appeals of Maryland  (10-1016), ruled that Congress did not have the authority to permit plaintiffs to sue their employers when those employers are states. “Documented discrimination against women in the general workplace is a persistent unfortunate reality, and we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women. But states may not be subject to suits for damages based on violations of a comprehensive statute unless Congress has identified a specific pattern of constitutional violations by state employers,” wrote Justice Kennedy in the court’s plurality opinion. Additionally, for states to be sued under FMLA, “Congress must… tailor a remedy congruent and proportional to the documented violations. [Congress] failed to do so when it allowed employees to sue state for violations of the FMLA’s self-care provision.” 

In  Coleman , the plaintiff, employed by the state of Maryland, requested a ten day medical leave pursuant to the FMLA, and his requested was denied. The plaintiff then sued the state for damages under the FMLA, and his case was dismissed. While Maryland acknowledges that it must abide by the substantive provisions of the FMLA and provide leave to its employees, state employees may not file suits against their employers when those employers violate the FMLA.

While a majority of the court agrees, Justice Ginsburg authored a forceful dissent, joined by Justices Breyer, Sotomayor, and Kanag, in which she wrote that “Congress … reduced employers’ incentives to prefer men over women, advanced women’s economic opportunities, and laid the foundation for a more egalitarian relationship at home and at work.” However, Ginsburg added, “at least the damage is contained. The self-care provision remains valid Commerce Clause legislation and therefore applies, undiluted, in the private sector.” Under this decision, employees may still request a judge to reverse potential violations, and the Department of Labor may still sue a state employer and gain monetary relief for harmed employees, noted Ginsburg.

A Manhattan court ruled that a teacher who posted comments to Facebook should not have had her employment terminated, since such a punishment “shocks one’s sense of fairness” and is “inconsistent with the spirit of the First Amendment.” The tenured teacher in this case,  Matter of Rubino v. City of New York , posted a comment to Facebook after hearing news that a Garden City student drowned during a field trip to the beach, in which she wrote “after today, I’m thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are all the devils (sic) spawn!” After a friend commented on her post, “oh you would let little Kwame float away!”, the petitioner responded “Yes, I wld (sic) not throw a life jacket in for a million!!”

After a concerned colleague viewed these posts, that colleague contacted the teacher’s school administration, which launched a formal investigation. The teacher admitted to posting those comments to Facebook and expressed regret for doing so. The investigation and subsequent hearing culminated in the termination of her employment.

However, in reviewing the teacher’s appeal from the hearing, Judge Jaffe ruled that while the decision to terminate her employment was neither arbitrary nor capricious, the punishment was disproportionate to the harm committed. Characterizing the teacher’s posts as “repulsive,” the court viewed this as an “isolated incident of intemperance,” and not as evidence of a pattern of conduct, instead focusing on the ease by which people may post to Facebook without regard to the privacy of those communications.

In overturning the termination and remanding for the imposition of a lesser penalty, the court wrote, “[w]hile students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society.”

At Bashian & Papantoniou, P.C., our commitment to providing comprehensive legal guidance to both employers and employees extends to the complex landscape of New York employment law. One of the critical aspects that we often advise our clients on is termination and severance agreements. In this blog post, we will explore the key considerations and legal insights related to these agreements in New York.

Termination Agreements: A Closer Look

Termination agreements, also known as separation agreements or settlement agreements, play a vital role in the employment relationship. These legally binding documents outline the terms and conditions under which the employment relationship will end. It's important to understand that termination agreements are not one-size-fits-all; they vary based on the specific circumstances and the goals of the parties involved.

Key Elements of a Termination Agreement

• Consideration : In New York, for a termination agreement to be valid, it must provide some form of consideration to the employee. This can include a lump-sum payment, continuation of benefits, or any other financial incentive. Both parties must agree on this consideration for the agreement to be legally enforceable.
• Release of Claims : Termination agreements often include a release of claims clause, which means the employee agrees not to bring any legal claims against the employer in the future. This is a crucial protection for the employer.
• Confidentiality : Employers may include a confidentiality provision in the agreement, which restricts the employee from disclosing sensitive company information, trade secrets, or the details of the termination.
• Non-Disparagement : To protect their reputation, employers may include a non-disparagement clause preventing employees from commenting negatively about the company or its employees.
• Non-Compete and Non-Solicitation : In some cases, employers may add non-compete and non-solicitation clauses to prevent the departing employee from working for competitors or soliciting the company's clients or employees.

Severance Agreements: Ensuring a Smooth Transition

Severance agreements are closely related to termination agreements but are often more focused on providing financial compensation to departing employees. These agreements are significant for high-level executives, but they can also benefit other employees, depending on the circumstances.

Key Elements of a Severance Agreement

• Severance Pay : The primary purpose of a severance agreement is to specify the amount of severance pay an employee will receive upon termination. The terms can vary significantly and may be influenced by factors like the employee's length of service and position within the company.
• Continuation of Benefits : Employers can agree to continue certain benefits like health insurance, retirement contributions, or stock options for a specified period after termination.
• Non-Disparagement and Confidentiality : Similar to termination agreements, severance agreements may include non-disparagement and confidentiality clauses.
• Release of Claims : Releasing claims is often a key element in severance agreements, as employees receive compensation for waiving their right to pursue legal action against the employer.

Challenges and Compliance

Navigating termination and severance agreements in New York employment law can be complex. Employers need to be aware of the various state and federal laws that govern these agreements, including the Older Workers Benefit Protection Act (OWBPA) and the Fair Labor Standards Act (FLSA). Failing to comply with these laws can result in costly legal challenges.

When Legal Counsel Matters

At Bashian & Papantoniou, P.C., we understand the nuances of New York employment law. Our experienced attorneys can help employers draft, negotiate, and enforce termination and severance agreements that comply with the law and protect their interests. We guide crafting agreements that suit the unique circumstances of each situation, ensuring that our clients are well-prepared to navigate the intricacies of employment terminations.

Termination and severance agreements are essential for employers to manage the employment relationship effectively and mitigate potential legal risks. Employers must approach these agreements carefully, taking into account the legal requirements and the specific needs of the organization. At Bashian & Papantoniou, P.C., we are dedicated to helping our clients navigate the complexities of New York employment law, ensuring that their agreements are both legally sound and in the best interest of their business. Whether you're an employer looking to draft an agreement or an employee seeking legal advice, our team is here to provide the expert guidance you need.

Contact Bashian & Papantoniou, P.C. today to learn more! 

Two interns are seeking a class action lawsuit against their former “employer” Fox Searchlight Pictures for violating federal labor laws. The interns, Eric Glatt, 42 and Alexander Footman, 24, claim that they worked full time, up to 50 hours per week, unpaid, performing menial tasks that did not further their education whatsoever. The two men worked on the hit movie “Black Swan,” one as a production intern and the other, an intern in the accounting department. Both state that they and hundreds like them at Fox Searchlight were given basic tedious tasks that should have been performed by paid employees. The labor laws contain certain requisite requirements in order to allow an entity to be exempt from paying their interns, requirements the plaintiffs say, that were not met.

The Federal labor department provides for criteria that must be met in order for a company to employ unpaid interns legally. Some of the requirements are: that the intern benefit in some way from their position at the firm, that the training received be similar to what would be given in an educational institution, that the intern not displace regular employees and that the employer derive no immediate advantage from the intern’s activities. Footman notes the lack of educational benefit derived from his daily tasks of fetching employees coffee, taking out the trash, taking and distributing lunch orders for the production staff and cleaning offices.

Black Swan, released in late 2010, grossed more than $300 million worldwide, although the cost of production was calculated to be $13 million. With a profit of $287 million, Glatt and Footman say, they could have afforded to pay their interns at least minimum wage. Thus, the former interns demand that they be paid their wages due as well as an injunction on Fox Searchlight restricting them from using unpaid interns on all future film productions.

Age discrimination is an unfortunate reality in the workplace, and it's essential for employees to understand their rights and protections. In New York, there are specific actions that can be considered age discrimination, and being aware of them is crucial. In this blog post, our Garden City age discrimination lawyers will explore the various forms of age discrimination at work in New York and provide valuable tips to help you navigate these situations effectively.

1. Identifying Age Discrimination: Signs and Red Flags

Age discrimination can be subtle, making it important to recognize the signs. This section will discuss common red flags, such as exclusion from training opportunities, unfair performance evaluations, or being passed over for promotions in favor of younger colleagues. By understanding these signs, you can better assess if you are a victim of age discrimination.

2. Proving Age Discrimination: Gathering Evidence

To successfully address age discrimination, you need to gather compelling evidence. This section will provide practical tips on documenting incidents, keeping a record of discriminatory remarks or actions, and collecting relevant emails or memos. We will also highlight the significance of witness statements and the importance of consulting an experienced employment attorney.

3. Steps to Take When Facing Age Discrimination

When faced with age discrimination, it's crucial to take appropriate action. This section will outline the steps you should consider, including reporting the discrimination to your employer, filing a complaint with the appropriate government agency, and seeking legal representation. We will provide guidance on the best practices to follow during each stage of the process.

4. Understanding New York State and Federal Laws

New York State and federal laws provide robust protections against age discrimination. This section will delve into the key laws, such as the Age Discrimination in Employment Act (ADEA) and the New York State Human Rights Law. We will explain the scope of these laws, the remedies available, and the deadlines for filing complaints.

5. Seeking Legal Assistance: When and Why You Need an Employment Attorney

Navigating age discrimination cases can be complex, and seeking legal assistance is often necessary. This section will discuss the benefits of consulting an experienced employment attorney, including their knowledge of the intricacies of employment law, their ability to negotiate with employers, and their expertise in representing clients in court if necessary.

Contact Our NY Age Discrimination Lawyers

Age discrimination at work is a serious issue that can have a detrimental impact on your career and overall well-being. By understanding the actions that can be considered age discrimination in New York and knowing your rights, you can take proactive steps to address and combat this injustice. If you believe you have been a victim of age discrimination, don't hesitate to seek legal advice from Bashian & Papantoniou, P.C. , a trusted employment law firm in Garden City, NY . Our experienced attorneys are dedicated to protecting your rights and helping you achieve justice.

Contact us today at  (516) 447-3148  to schedule a consultation and take the first step towards protecting your rights against age discrimination in the workplace.

The Americans with Disabilities Act (ADA) has been a cornerstone in ensuring equal rights and opportunities for individuals with disabilities. Title III of the ADA specifically addresses public accommodations and services, aiming to eliminate barriers and promote accessibility. In the vibrant state of New York, where diversity thrives, understanding ADA rights under Title III becomes crucial for creating an inclusive environment.

1. Defining Title III:

   Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, commercial facilities, and private entities that offer certain examinations and courses related to educational and professional certification. Public accommodations include a wide array of businesses and services, ranging from restaurants and hotels to theaters and museums.

2. Key Provisions of Title III:

   • Architectural Accessibility: Ensuring that physical spaces are designed and constructed to be accessible to individuals with disabilities. This includes ramps, accessible parking spaces, and accommodations for those with mobility challenges.

   • Effective Communication: Businesses are required to provide effective communication for individuals with disabilities. This could involve offering auxiliary aids or services, such as sign language interpreters or Braille materials.

   • Reasonable Modifications: Public accommodations are obligated to make reasonable modifications to policies, practices, and procedures to accommodate individuals with disabilities, unless it poses an undue burden.