Protecting Privacy: New York State’s Social Media Access Law

In a world where digital presence is ubiquitous, protecting personal privacy in the workplace is paramount. Recognizing this, New York State has enacted a groundbreaking law aimed at safeguarding the privacy of employees and job applicants in the realm of social media.

As of March 12, 2024, employers in New York State are now prohibited from requesting access to an employee’s or job applicant’s social media accounts. This means employers cannot ask for usernames, passwords, or any other login information that would grant access to private social media accounts.

Moreover, individuals cannot be coerced into providing access to their social media accounts or sharing content from those accounts as a condition of employment or consideration for a job. This crucial provision ensures that individuals maintain control over their personal online presence and are not subjected to undue scrutiny or invasion of privacy by their employers.

Equally significant is the prohibition against employers penalizing or retaliating against employees or job applicants who refuse to share their social media account information. This protection ensures that individuals can assert their rights without fear of reprisal in the workplace.

However, the law does contain exceptions to accommodate legitimate employer interests. Employers are still permitted to access publicly shared content on social media platforms when investigating misconduct. Additionally, access is allowed in situations where there is a legal obligation, when employees use employer-provided social media accounts, or when access is restricted on employer-provided equipment.

Crucially, the law extends its coverage beyond traditional social media platforms to encompass any forum involving user-generated content. This includes blogs, video platforms, and other forms of user-shared media, reflecting the evolving nature of online communication and content creation.

For individuals who believe their rights under this law have been violated, legal recourse is available. Any non-compliance with the legislation on or after March 12, 2024, is actionable under state law. In such cases, seeking assistance from an employment law attorney is advisable to explore available options and remedies.

New York State’s social media access law represents a significant step forward in safeguarding privacy rights in the digital age. By establishing clear boundaries between personal and professional spheres, the law ensures fair treatment and respect for individuals’ privacy in the workplace. It sets a precedent for other jurisdictions to follow in prioritizing privacy and autonomy in an increasingly connected world.

How to Prepare a Strong Discrimination Claim Against Your Employer

By Kellie Hand

When faced with discrimination in the workplace, it is important to take action as soon as possible, as there are time limits for filing discrimination claims. The best way to protect yourself from discrimination, harassment, and retaliation is to (1) know your legal rights, (2) document everything allowed within state law and company policy (3) consult a legal professional, and (4) remember to take care of your mental and physical health. 

Know Your Rights

In the U.S., employees and job applicants are protected from discrimination in various aspects of employment under federal and state laws. These protections are based on specific “protected classes” such as Race, Color, National Origin, Religion, Sex (including sexual orientation and gender identity), Pregnancy (including childbirth or related medical conditions), Age, Disability, and Genetic Information. 

Note: The Age Discrimination in Employment Act (ADEA) protects individuals who are 40+ years old from age discrimination. However, state laws may have a lower age threshold. For example, New York State’s age discrimination law protects individuals 18+ years old.

Employment aspects protected from discrimination include (but are not limited to):

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements;
  • Recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Fringe benefits;
  • Pay, retirement plans, and disability leave;
  • Other terms and conditions of employment.

Employees are also protected from retaliation if they engage in a legally protected activity, such as reporting discrimination or participating in a discrimination proceeding or investigation. 

Document Everything 

Start by keeping a record of each incident you believe is discriminatory. This can include emails, memos, text messages, or any other form of communication. Also, make a note of any verbal conversations. Be as detailed as possible – write down dates, times, locations, people involved, what was said, and any witnesses. However, please be aware that what you can record and document will vary depending on state laws and company policies. 

Report the discrimination to your supervisor, Human Resources department, or any other relevant authority in your organization. Be sure to follow the company’s procedures for reporting, and do this in writing so you have a record of your report. Additionally, keep copies of your job evaluations and any letters or memos that show you perform your job well. This can be crucial if your employer tries to defend their actions by criticizing your job performance.

Get Legal Advice

If you feel you may be experiencing discrimination, consult with an employment law attorney right away to ensure that you are taking the best possible steps from the start. An employment lawyer can provide advice tailored to your specific situation, guide you through the process, and help protect your rights. 

Take Care of Yourself 

Experiencing discrimination in the workplace can be emotionally draining. Therefore, it is important to seek support from friends, family, or a mental health professional. Taking care of your physical health is also vital during stressful times.

What is the Gender Motivated Violence Protection Law?

While many people are familiar with the New York Adult Survivors Act, which opens a door for victims of sexual assault whose claims have fallen out of the statute of limitations to bring civil claims against their abusers, many haven’t heard of the Gender Motivated Violence Protection Law. 

However, the lesser-known Gender Motivated Violence Protection Law might have even more protections than the state Adult Survivors Act if the violent act occurred within the boundaries of New York City. The law provides a two-year lookback window–which began in March 2023 and ends on February 28, 2025– and similarly opens a doorway for victims to bring claims against their attacker without regard to when the incident occurred. However, the Gender Motivated Violence Protection Law covers more than only sexual violence and includes physical, verbal, psychological, and socio-economic violence. 

The Gender Motivated Violence Protection Law went into effect in Oct. 2018, extending the statute of limitations for civil charges for gender-motivated violence to seven years after the event occurred. An amendment was passed in January 2022 to open a two-year lookback window for victims whose claims were time-barred under the city law.

The two-year lookback window ends on February 28, 2025. It gives victims of gender-based violence an opportunity to recover damages against their accused attacker and is only effective for civil charges. A victim cannot bring criminal charges against the perpetrator under this law. 

To bring civil charges under the Gender Motivated Violence Protection Act, the victim does not have to reside in New York City but the act must have occurred in one of the five New York City boroughs. 

If you’ve experienced gender-based violence and are wondering if this law can help you, don’t hesitate to contact the compassionate legal team at VKV. We are here to stand by your side, advocate for your rights, and navigate this legal journey with you.

Major Changes on the Horizon for New York’s Laws on Non-Competition Agreements

By Brendan Klein

Crucial protections for New York workers’ economic freedom are just over the horizon. On June 20th,2023, the State Legislature passed a bill that, if enacted, will ban the use of almost all post-employment non-competition (“non-compete”) agreements in New York. The bill now awaits the decision of Governor Kathy Hochul, who has already expressed her support for similar legislation. If the Governor signs the bill into law, it will become effective 30 days later and would amend New York Labor Law to make any non-compete agreement signed or modified after the bill’s effective date unlawful. 

Specifically, the bill prohibits an employer or its agents from seeking, requiring, demanding, or accepting a non-compete from any covered individual and voids “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind” created or modified after the law goes into effect. 

The bill defines a non-compete as any agreement or clause between an employer and a covered individual that prohibits or restricts such covered individual from obtaining employment after the conclusion of employment with the employer included as a party to the agreement. Covered individuals include employees, independent contractors, and any other person who performs services for another person to whom the individual is “economically dependent” or “obligated to perform duties for”. 

The law would only apply to agreements entered into or modified on or after its effective date. It would not affect the following: 

  • Agreements with a covered individual that demand an employee to not work for a fixed period of time term, typically after the employee resigns or is terminated. Employees will often be paid as an employee during that time period (allowing certain types of “garden leave” agreements)
  • Agreements that prohibit the disclosure of trade secrets or confidential and proprietary client information (“non-disclosure agreements”)
  • Agreements that prohibit the solicitation of clients of the employer that the covered individual learned about during employment (“client non-solicitation agreements”)

The law would provide covered individuals with the right to bring a civil action against an employer or person alleged to have violated the law. A covered individual may bring such an action within two years of 1) when the prohibited non-compete was signed; 2) when the covered individual learned of the non-compete agreement; 3) when the employment or contractual relationship is terminated; or 4) when the employer takes any step to enforce the non-compete agreement, whichever date occurs latest. 

As a remedy, a court may void the non-compete agreement and provide “all other appropriate relief” including enjoining the employer’s conduct, ordering payment of liquidated damages, or awarding lost compensation, other damages, and attorney’s fees and costs. The statute sets a $10,000 limit on liquidated damages but permits the court to award such damages to every covered individual affected by the prohibited non-compete agreement. 

This law would clearly fortify workers’ right to seek advantageous economic opportunities without undue restraint. Still, the language of the potential statute raises a few questions. First, although the bill explicitly permits the continued use of client non-solicitation agreements, it is unclear whether employee non-solicitation agreements (that is, agreements restricting a covered individual’s ability to hire former colleagues) are permitted. Second, the statute as written appears to prohibit the use of non-compete agreements as part of the sale of a business. However, a business owner may fail to meet the statute’s definition of a “covered individual”, which would place non-compete agreements in this context outside the scope of the law. Hopefully, the New York Department of Labor will provide clarity on these matters if the bill is passed. 

Until the law passes, non-compete agreements in New York remain subject to a rule of reasonableness. Reasonableness dictates that an employer only use a non-compete to protect her legitimate business interests and must not impose an “undue hardship” on her employees. Lawful non-competes must also specify a reasonable time period and geographic scope for their application. If you believe you have been subjected to an unreasonable or unlawful non-competition agreement, please consult with a New York-registered employment law attorney. 

The case of Jimmy John’s, a national sandwich franchise, helps illustrate what an unreasonable non-compete agreement under the current law looks like. Non-confidential Jimmy John’s employees including delivery drivers, sandwich makers, and cashiers were asked to sign non-competes that prohibited them from working within two miles of any Jimmy John’s location for any employer that made more than ten percent of its revenue from sandwiches for a period of two years after the end of their employment. In 2014, in response to a lawsuit brought by the attorney general of New York, the company agreed to stop providing the agreements to New York employees and advised its franchisees to void any such signed non-compete agreements. Unfortunately, it is not uncommon for companies to use the threat of non-competition agreements to deter employees from seeking employment opportunities with competitors or to coerce them to continue working in an undesirable position. 

If New York passes the non-compete bill, it will join the handful of states who have stepped up to protect their workers from unreasonable and coercive non-compete agreements. At present only four states – California, North Dakota, Oklahoma, and most recently Minnesota, have prohibited non-competes. However, since Oregon set a $62,000 salary threshold for non-compete agreements in 2007, more than ten states including Colorado, Illinois, and Maine have implemented significant restrictions on the use of non-compete agreements by setting minimum wage thresholds, advance notification requirements, and demanding that employers provide compensation for employees who consent to their non-compete agreements.As New York prepares to join them, workers, employers, and attorneys would do well to keep an eye out for new developments. 

Can I Bring a Hostile Work Environment Claim on the Basis of Disability in New York? 

By Brendan Klein

Employees with disabilities are protected under the federal Americans with Disabilities Act (“ADA”). Additionally in New York State,  employees also have protections under the New York State Human Rights Law (“NYSHRL”) and New York City employers are duly responsible to abide by New York City Human Rights Law (“NYCHRL”).  All three laws prohibit discrimination against employees with disabilities in the terms, as conditions, or privileges of their employment. However, the key question in many employment discrimination cases is what, exactly, fits within a legal definition of discrimination.

You may have heard the phrase “hostile work environment” used in connection with allegations of discrimination and harassment in employment. In Meritor v. Vinson (1986), the Supreme Court recognized that an employee could be harassed so severely or persistently on the basis of Title VII protected characteristic (race, color, religion, sex, national origin) that it would alter the terms, conditions, or privileges of her employment, creating the basis for a discrimination claim. Unfortunately, the Supreme Court has never recognized such a claim on the basis of disability under the ADA.

Fortunately, the Second Circuit Court of Appeals – which includes districts within New York, Connecticut and Vermont – did recognize such a claim for the first time in Fox v. Costco Wholesale (2019). The Court had previously assumed that such claims were valid, but in that case it joined the handful of other circuits which have explicitly held that hostile work environment claims can be brought under the ADA. Like the other Circuits, the Court acknowledged that Title VII and the ADA have substantial similarities in language and purpose, and so found that, like employees protected by Title VII, employees with disabilities should be able to assert hostile work environment claims under the ADA.

Small, sporadic incidents of harassment on the basis of disability do not establish a hostile work environment. As in Title VII cases, a plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment. In Fox, the Court took pains to note that “teasing in the workplace is not uncommon”, and is usually not actionable. Mimicking a stutter, calling overweight people names, or laughing about someone’s acne, baldness, or height may be cruel, but do not themselves create a hostile work environment. For example, in Hawkins-El v. New York City Transit Authority (2021), an employee with hearing loss brought a hostile work environment claim after his supervisor “yelled and cursed at him” about his hearing difficulties. The court found that this isolated incident was not severe enough to constitute a hostile work environment. In Murphy v. BeavEx, Inc. (2008), an employee with multiple sclerosis complained that his coworkers had created a hostile work environment by stealing his cane and drawing offensive cartoons of him, among other things. The court found that these incidents were insufficiently “severe and pervasive” to amount to a change in the terms and conditions of Murphy’s employment. 

Unlike the ADA, the NYSHRL explicitly protects employees from harassment on the basis of disability when such harassment subjects an individual to inferior terms, conditions, or privileges of employment. However, the Second Circuit analyzes hostile work environment claims under state and federal law using identical standards, so it is not easier for a plaintiff to prevail on such a claim on the basis of disability under the NYSHRL than the ADA.

On the other hand, a hostile work environment claim under the NYCHRL is assessed separately and independently from claims under the ADA and NYSHRL. The Second Circuit construes such claims “broadly in favor of discrimination plaintiffs” and does not require that the alleged conduct be “severe or pervasive”. The plaintiff only needs to show that she was treated “less well” than others because of his or her disability. Thus, with a single set of facts, a plaintiff could lose a hostile work environment claim under the ADA or NYSHRL, but succeed under NYCHRL. For example, in Kugel v. Queens Nassau Nursing Home Inc. (2021) a plaintiff alleged that she had been subjected to a hostile work environment on the basis of her disability, because the defendants had been obstinate and insensitive to her repeated requests for accommodation. Her communications with the defendants were “sporadic” (not sufficiently pervasive), and her claim was dismissed under the NYSHRL. However, the defendant’s emails contained indifference and disdain for the plaintiff’s health concerns. The Court found that the plaintiff was indeed treated less well than other employees due to her disability, and so refused to dismiss her claim under the NYCHRL.

In conclusion, these broad protections against disability discrimination are firmly established under federal and New York state law. If you perceive differential treatment or suspect discrimination on the basis of your disability, it’s important to consult with a New York-registered employment law attorney. 

Artificial Intelligence in Employment Decisions

By Kellie Hand

Artificial Intelligence (AI) has revolutionized the way many businesses operate, and the realm of employment decisions is no exception. AI tools are increasingly being utilized to streamline and automate aspects of the hiring process. For instance, In February 2022, the Society of Human Resources Management found that 79% of employers use Artificial Intelligence (AI) and/or automation for recruiting and hiring. Although AI and automation can significantly reduce bias when implemented correctly, AI algorithms are only as good as the data they are trained on. As a result, if an AI tool incorporates biased information or reflects historical disparities, the AI tool may inadvertently perpetuate those biases, leading to workplace discrimination. 

In October 2021, U.S. Equal Employment Opportunity Commission (EEOC) Chair Charlotte A. Burrows announced the Artificial Intelligence and Algorithmic Fairness Initiative, an agency-wide initiative to ensure that the use of software, including artificial intelligence (AI), machine learning, and other emerging technologies used in hiring and other employment decisions comply with the federal civil rights laws that the EEOC enforces. On May 18, 2023, the EEOC released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” wherein it affirmed that if an employer administers a selection procedure, it may be responsible under Title VII if the procedure discriminates on a basis prohibited by Title VII, even if the test was developed by an outside vendor. Additionally, employers may be held responsible for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf. However, in most cases, it can be impossible for an employee to know whether an employer is using a discriminatory AI selection procedure. 

In 2021, the New York City Department of Consumer and Worker Protection (“DCWP” or “Department”) sought to increase transparency by implementing new legislation regarding automated employment decision tools (“AEDT”). Local Law 144 of 2021, which will go into effect on July 5, 2023, “prohibits employers and employment agencies from using an automated employment decision tool unless the tool has been subject to a bias audit within one year of the use of the tool, information about the bias audit is publicly available, and certain notices have been provided to employees or job candidates” who reside in New York City. The law defines an “employment decision” as the act of screening “candidates for employment or employees for promotion within [New York City].” 

A bias audit of an AEDT must calculate the selection rate for each race/ethnicity and sex category (i.e., how often individuals in each race/ethnicity and sex category are chosen by the tool) and compare the selection rates to the most selected category to determine an impact ratio. The impact ratio shows if there is a significant difference in selection rates between groups. A large difference may indicate that the tool is biased.

To comply with the Code, an employer or employment agency may provide notice to a candidate for employment or promotion who resides in New York City by doing any of the following: 

(1) Provide notice on the employment section of its website in a clear and conspicuous manner at least 10 business days before the use of an AEDT; 

(2) Provide notice in a job posting at least 10 business days before use of an AEDT; or 

(3) Provide notice to candidates for employment via U.S. mail or e-mail at least 10 business days before the use of an AEDT. 

Additionally, Local Law 144 requires that employers provide instructions for how an individual can request an alternative selection process or a reasonable accommodation under other laws, if available. 

*It is important to note that while the law covers bias regarding race, ethnicity, and sex, it does NOT apply to older or disabled workers. 

Being Treated “Less Well” vs. Adverse Employment Action

By Brendan Carman

In a recent decision, a New York Supreme Court appellate judge held that under the New York City Human Rights Law (“NYCHRL”), a plaintiff only has to demonstrate they were treated “less well” than those outside their protected class to establish a claim of gender discrimination. The plaintiff does not have to show that they suffered an adverse employment action.  

An adverse employment action generally refers to an employer decision that impacts you negatively in a concrete way, i.e., a pay cut, a reduction in benefits, or termination. This is a higher burden than simply proving that you were treated “less well” than someone outside of your protected class.  

In Bond v. New York City Health and Hospitals Corp., the plaintiff raised claims of gender discrimination, retaliation and constructive discharge. The trial court dismissed the plaintiff’s gender discrimination claim because the plaintiff did not show that her employer performed an adverse employment action against her.

The First Department of the Appellate Division reversed the trial court’s decision. The court noted that the plaintiff had provided a substantial amount of proof showing that after she denied her supervisor’s sexual advances, she “was unjustifiably criticized for her work product and attendance by her supervisors and stripped of her assignments.” Even if this did not amount to an “adverse employment action,” it was enough to show that she was treated “less well” on account of her gender.

The court also clarified that, unlike federal law, the NYCHRL does not differentiate between sexual harassment and other forms of gender discrimination. Rather, sexual harassment is merely a “species” of gender discrimination under the NYCHRL. Therefore, plaintiffs with sexual harassment claims only have to prove they were treated less well, too.

This decision highlights the broad protections against discrimination under the NYCHRL. If you believe you are being treated differently based on your gender, you should speak with a New York-registered employment law attorney.

New York City Bans Appearance-Based Discrimination

Updated May 30, 2023

New York City Mayor Eric Adams enacted an anti-discrimination law on May 26 banning discrimination based on an individual’s height or weight when it comes to employment, housing or access to public accommodations.  With the new legislation, residents of New York City will be able to bring claims of discrimination related to their physical appearance before the New York City Commission on Human Rights, a local agency responsible for examining cases of discrimination and harassment.

The bill, sponsored by Manhattan Democratic Councilman Shaun Abreu, will be effective on Nov. 22, 2023. Prior to that date, employers must review their official policies to ensure that they do not include discriminatory practices against height and weight The law includes an exemption for positions where a certain height and weight are required to complete the functions of the job, as stated in federal, state or local law, or if permitted by the NYC Commission on Human Rights.

New York State legislators are aiming to pass a similar bill on the state level, which would prohibit weight and height discrimination across the state. Other states, including Massachusetts, Vermont, and New Jersey, are considering similar legislation in their respective states.

Michigan is currently the only state that bans height and weight discrimination, and only three US cities already have an ordinance in place to ban appearance-based discrimination – San Francisco, California; Madison, Wisconsin; and Urbana, Illinois.

Mayor Eric Adams said the passage of this bill is a significant step towards eliminating appearance-based discrimination in New York City.

“It shouldn’t matter how tall you are or how much you weigh when you’re looking for a job, are out on the town, or trying to rent an apartment,” he said. “This law will help level the playing field for all New Yorkers, create more inclusive workplaces and living environments, and protect against discrimination.”

Discrimination in Housing: Persistent Challenges and Legal Remedies

Housing discrimination has been an issue in the United States for decades. While the Civil Rights Act of 1968, also known as the Fair Housing Act, was signed into law to prohibit discrimination in housing based on race, religion, and national origin, discriminatory practices still persist in various forms today.

At Valli Kane & Vagnini, we often see clients who have been discriminated against when seeking housing. For example, our client received a government voucher to pay for rent, but despite having the means to pay, she was still denied housing based on credit checks and other obstacles. This type of discrimination is prohibited by New York State law, yet it still occurs.

Another form of discrimination we see is the intentional design of apartment buildings that do not accommodate people with disabilities, in violation of the Americans with Disabilities Act. This often results in cramped living spaces with small hallways and corners that make it difficult for individuals with disabilities to move around freely.

Additionally, there are discriminatory programs that impact low-income homeowners in New York City, such as the third-party transfer program. This program allows the city to transfer properties with unpaid water or sewage bills to an approved real estate developer for free, without compensating the building owner. This practice disproportionately impacts residents in predominantly black and brown areas, and can be argued as a violation of the U.S. Constitution’s prohibition against excessive fines and equal protection.

It is important to note that discrimination in housing violates federal and state laws, and individuals who have been subjected to discriminatory practices may have legal options available to them. If you or anyone you know has experienced housing discrimination, consider reaching out to a housing or discrimination attorney to discuss your situation and seek legal remedies. Discrimination has no place in our society, and it is crucial that we continue to fight for fair and equal treatment for all.

Smith v. O’Neill, 2020 WL 369505 (N.Y. App. Div. 1st Dep’t, Jan. 23, 2020)

Smith v. O’Neill
NYPD Evidence Collection Team members may be entitled to Detective status and compensation. 

{5 minutes to read}  The New York City Police Department (“NYPD”) has a long history of attempting to use non-Detective police officers to perform Detective-level work in order to curtail costs. In one of our cases, Smith v. O’Neill,[1] members of the NYPD’s Evidence Collection Team (“ECT”) challenge this practice and assert their statutory rights to recognition as Detectives (and the associated compensation) once they have performed Detective-level work for at least 18 months. If the ECT members prevail, they will be entitled to recognition as Detectives and the increased compensation and benefits corresponding to that rank.

Background of the Dispute: Prior to 1990, the NYPD frequently “designat[ed] police officers to perform detective duties for indefinite periods of time without designating them as detectives, with the accompanying salary and benefits.” [2] By doing so, the NYPD benefited from additional Detective level labor while paying those performing the work lower, non-Detective wages. This practice led to serious inequity and morale problems within the police force.

In 1990, following repeated calls for reform, the New York City Council enacted § 14-103(b)(2) of the New York City Administrative Code (the “Code”) to combat this “widespread abuse.” [3] The statute is intended to ensure that those officers who perform detective work are paid accordingly. Under the Code, NYPD police officers who “perform the duties of a detective” for more than 18 months are entitled to Detective status and the associated compensation and benefits.

After it was enacted, the NYPD immediately resisted the requirements of the Code, determining that certain police officers fell outside of its scope and denying them Detective status and compensation. NYPD’s actions were challenged in a lawsuit, Scotto v. Dinkins, where the NYPD argued that the Police Commissioner retained discretion to interpret which police duties fell within the confines of the Code. The New York State Court of Appeals rejected NYPD’s argument, holding that the statute was intended “to eliminate the very discretion which the Commissioner now seeks to reclaim.” [4] The Court explained that the proper inquiry for determining whether a police officer is entitled to Detective status is whether the officer has performed the duties of a detective, not whether the Commissioner has classified the officer’s position as being a Detective-track position.

Following Dinkins, the NYPD attempted to circumvent the Code’s requirements by asking police officers to sign waivers foregoing the Detective level pay required by the Code. When this practice was challenged in the matter of Scotto v. Giuliani, the Court invalidated NYPD’s waiver program, noting that the waivers were unlikely to be truly voluntary and that they undermined the purpose of the Code.[5]I

In a lawsuit brought in 2006, Brown v Kerik, ECT members claimed that they were entitled to Detective status and pay because they performed duties equivalent to those of the Crime Scene Unit (“CSU”) Detectives. The Court disagreed, finding that CSU members’ duties differed in 4 important ways: CSU detectives received more training, used more sophisticated equipment, investigated more serious crimes, and coordinated more extensively with the DA’s office to prosecute crimes.[6]

Since Kerik was decided, the duties of ECT members have changed, and the NYPD indicated that it was willing to recognize them as Detectives. When the NYPD failed to follow through, ECT members filed a union grievance, and the NYPD refused to grant them Detective status. 

The ECT members filed a new lawsuit in response, alleging that they should be recognized as Detectives under the Code once they have performed their duties for more than 18 months because they now receive more extensive training, use more sophisticated equipment, investigate the most serious of crimes, and work directly with the DA’s office. In short, the ECT members argue that the Kerik court’s rationale for denying them Detective status and pay no longer applies. 

In response, the NYPD contends that the ECT members’ duties have remained essentially unchanged since the Kerik case. To resolve this factual dispute, the court will conduct a hearing to determine what duties are performed by ECT members and whether those duties are comparable to those performed by other NYPD detectives.

If you are an NYPD officer and have been performing work comparable to that of Detectives for more than 18 months, and believe that you are entitled to Detective status and compensation, you may wish to consult with the attorneys at Valli Kane & Vagnini LLP to determine your rights.

_________________________________________________________

[1] Smith v. O’Neill, 2020 WL 369505 (N.Y. App. Div. 1st Dep’t, Jan. 23, 2020). 

[2] See Matter of Scotto v. Dinkins, 194 A.D.2d 415, 416 (1st Dep’t 1993).

[3] Id.

[4] Matter of Scotto v. Dinkins, 85 N.Y.2d 209, 212-13 (1995).

[5] Scotto v. Giuliani, 243 A.D.2d 388, 389 (1st Dep’t 1997). 

[6] See Matter of Brown v. Kerik, 29 A.D.3d 478 (1st Dep’t 2006).

_____________________________________________________________

James A. Vagnini
Partner
email: [email protected]