Many will remember the Terri Schiavo case where the debate was whether a woman in a persistent vegitative state could be disconnected from life support without a specific written directive on file saying to do so. Now, the New York Legislature is trying to avoid that situation with the Family Health Care Decisions Act which, in the absence of a written directive to the contrary, will allow family members to make health care decisions, including the withdrawal of life sustaning treatment, even without the patient having prepared any advance directives. The Governor is on the verge of signing this into law. His press release is here: http://www.ny.gov/governor/press/press_02241003.html
The long and short? If you don't want your family making decisions that you might not have agreed with, have your wishes in writing ahead of time via a straight forward Health Care Declaration/Living Will/D.N.R. It is a simple document to have prepared and it not only will ensure your wishes are followed but will take the pressure off those you leave behind to have to make those decisions.
This past Saturday, President Obama signed a bill that extends federal COBRA health insurance premium subsidies for the unemployed. Buried in a military spending bill was a provision that extends the nine-month, 65% premium federal subsidy by six months. It applies to those involuntarily terminated through February 28, 2010. It was previously the case that employees who lose their jobs after December 31st would have been ineligible for the subsidy. It also gives beneficiaries whose subsidy expired and who didn't pay the full premium the opportunity to receive retroactive coverage. As more details unfold, we will get them to you.
Previously, we gave you the link for the form that the New York State Department of Labor was requiring to be used to notify new hires of their pay rate and overtime rate. It was said at the time that the form they gave a link to, was the required form to use. Not anymore apparently. It now says on the DOL site that: "No particular form is required. Employers may create their own forms, or use and/or adapt a sample form available at the link below. In the near future, sample forms for a variety of pay agreements (salaried, prevailing rate, exempt, and others) will be provided here." You can read this for yourself at: http://www.labor.state.ny.us/workerprotection/laborstandards/workprot/lshmpg.shtm
The Department of Labor, I assume, realized what myself and a client realized the first time we went to use the form - it did not work for every situation and some modifications are necessary. It appears they are now allowing for just that. Go figure, a government agancy changed its mind.
Previously, we informed you about the new requirement from the New York State Dept. of Labor regarding notifying new hires in writing of their wage and their overtime wage. This went into effect October 26, 2009 and they had promised a sample form to use. It is now finally available. The form can be found here:
This is the form that needs to be used for new hires before they do any work - notifying them of their rate of pay, their regular payday and their overtime rate of pay.
Somehow, I just doubt the scientific validity of all this but it's worth passing on. A recent survey apparently shows that there is a correlation between states with a higher concentration of lawyers and heavier cocaine use. It also showed that states with higher concentrations of artists, architects and educators have heavier marijuana use. Here's the link: http://www.abajournal.com/weekly/lawyer-heavy_states_see_higher_cocaine_use
Weird. I won't discount anything and there have been fairly involved and reliable studies showing lawyers leading the league in depression and alcoholism but the cocaine statistic doesn't necessarily mean that it's the lawyers doing the snorting. Lawyers go where the business is - wouldn't it make sense that areas with high cocaine use and as such, high rates of cocaine arrests, would attract more lawyers to defend those arrests? It does to me. Or it could mean that my brethren are snorting lines to get through their day which would be a bummer. Myself, I've never seen evidence of it. Too much coffee is all I can attest to for me and my legal pals. Thankfully, I won't get five to ten for main lining Starbucks. Plus, cocaine doesn't really fit into my marathon training plan. It might work for a 5k but a marathon, never!
The New York Legislature is still jamming that sausage casing full of legal obligations for New York employers. Once October 26, 2009 hits, employers will be required to notify new hires in writing and advise them of both their regular hourly rate and their overtime rate. The employer will also have to obtain a written acknowledgment from each employee that they received this notice. And as a reminder, Section 195 of the Labor Law also still requires employers to provide written notification of changes in paydays and time-off policies to their employees. I only bring the mail folks.
The Equal Employment Opportunity Commission has issued a new guidance on severance agreements for employees and surprise, it's pretty employee friendly. Yet, it is a useful tool for employers to look over when considering these agreements. Here is the link: http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html
Several points they cover is that you cannot have an employee waive the right to file a claim before the EEOC or waive the ability to participate in an agency investigation. Also, it is reaffirmed that the employee needs to be receiving some additional consideration beyond that which they were already owed for the agreement/waiver to be valid. The waiver must also advise the employee to consult an attorney before signing. There are other things to look out for as well, obviously, but this is a blog, not a law review article. If you have questions, I'm here.
If you didn't get a chance to attend our identity theft seminar, you can still get the highlights by virtue of our latest podcast. Here is the link so you can have at it: http://www.themattacolafirm.com/HighlightsofIdenityTheftSeminar.mp3
Enjoy!
In the ever increasing category of "Laws That Cannot Keep Up With Technology", the IRS is struggling to find ways to account for employer provided cell phones for employees. They have some new proposals out that they are seeking comments for. One such proposal would simply label one fourth of an employees' use of a work cell phone as personal and treat the value of that as a fringe benefit. Employers could deduct accordingly on their end of things.
There are other proposals as well, this article sums it all up nicely: http://online.wsj.com/article/SB124473141538306335.html
Currently, the law on the books requires that the value of the cell phone be included in the employee's gross income unless the employee keeps detailed records showing that it is for work only. Yet, most, and that's an understatement, are not complying with this requirement and most employers and employees alike say that this creates an unreasonable administrative burden. The new proposal is designed to make it a bit simpler. The one quarter/three quarters rule would definitely be a bit easier to oversee than the current state of affairs. Have a thought? Let the IRS know.
The entire "World is Flat" concept never ceases to amaze me. Neither does the complete proliferation of such social networking sites of Facebook and Twitter into everyday life. Last week, I watched a site called Black Cab Sessions (musicians performing live in London taxi cabs, pretty cool) gain several hundred new Twitter followers in a matter of an afternoon because skateboard pioneer Tony Hawk mentioned them on his Twitter tweet. Just amazing.
I've also been following how Facebook and Twitter has infiltrated the legal world and have monitored how many lawyers, like myself, have begun using them for networking, marketing and just plain fun. Well, apparently the guys in robes have been as well. Because a North Carolina judge just got reprimanded for being Facebook friends with a lawyer who was appearing in a case before him and they exchanged Facebook posts with each other about the case while it was still pending. That's a no-no for my non-lawyer friends. You aren't allowed to speak with a Judge about the case without the presence of the opposing lawyer while a case is pending. The Judge also got spanked for using google to research the plaintiff in the case even though that information had never been entered into evidence, even going so far as to cite a poem by the plaintiff, taken off the web site, before rendering his decision. Justice is supposed to be blind ladies and gents, not an internet sleuth. http://www.the-dispatch.com/article/20090601/ARTICLES/905319995/1005?Title=Judge-reprimanded-for-discussing-case-on-Facebook
Nonetheless, it's all pretty interesing and in case you were wondering, technology and the way we get news, market ourselves, interact with others - it's not going away and only going to keep on evolving. Balencing this new wave of information with the 'old' rules and principles of conduct is where the challenge lies. Stay tuned.
Our friends at the EEOC have been at it again and have issued some "best practices" for employers to follow when dealing with employees with caregiving responsibilities. These are not rules, per se, and are not mandates for employers but are measures that the EEOC would like to see you take when handling employees who are caregivers. In other words, if you follow their suggestions, you will make the EEOC happy and make life easier for yourself if you are ever involved in an EEOC charge. The "best practices" can be found here: http://www.eeoc.gov/policy/docs/caregiver-best-practices.html
A 'caregiver' is someone who cares for a spouse, children, parents, elderly relatives and relatives with disabilities. The EEOC's 'best practices' are designed to help an employer avoid prejudices and stereotypes that can occur about caregivers such as assuming that female employees' caregiver responsibilities will hinder their ability to keep up in a fast paced environment or that male workers, do not or shuld not, have significant caregiver responsibilities. It is a useful document and worth a read. As I tell my employer clients, the key is to be fair and to be consistent. Expect nothing more of one class or gender of employees than you would another and when disciplining for attendance or quality issues, do so in a consistent manner that does not take into account a person's gender, age, disability, etc. So, take a look and if you have questions, we are here.
Just recently, The Mattacola Law Firm made the Mohawk Valley's Business Journal List of "TOP RANKS: MOHAWK VALLEY LAW FIRMS", coming in the top ten. It was nice to be in there. I'm a big fan of the Business Journal and they do an outstanding job reporting on the happenings in the business community. But I will be honest, these lists make me nervous. I think too much importance is placed on them. I've watched my law school either celebrate or nearly jump off the roof every time they rise and fall in the rankings. And it's understandable - every business is competitive and prospective students make decisions based on these lists as I suppose clients do based on the list we just made.
Yet, here's what I think any prospective client should do and this goes for any business. Poll those that have gone before you. Ask around. Ask to speak to former and current clients. Yes, clients are confidential but if they consent, they can serve as a reference. That's the list you should be concerned about. What are your clients saying about you? And that is a list I am pretty proud of. Because I am quite sure that our clients will tell you that we work very hard for them, that we are extremely responsive and that we do everything in our power to serve their needs. That's the ranking I'm obsessed with and last time I checked, which is everyday, we are doing very well in that department. So, thank you Business Journal, for the props. We very much appreciate it. Yet, we will continue to focus on our list of clients and where we rank with them, as that is what is got us here and what is truly important.
Employing quality individuals seems to be an ever more difficult task for employers. The talent pool, quite frankly, is not deep and seems to be losing water fast. Employers are smart to use every tool they can to weed out potential problem employees. An employee's credit history is one of those tools. If someone can't pay bills on time and has shown no responsiblity with their personal finances, is that person likely to be a quality employee? These are useful things for employers to know.
Yet, when an employer utilizes a credit report of a job applicant and makes a decision based on the information in that report, even partially, there are rules that must be followed per the Fair Credit Reporting Act (FCRA). Yes, I know, those damn rules again. Fortunately, I am going to give you a link to an excellent article by the Federal Trade Commission on this issue. Here it is: http://www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm
Highlights include notifying a potential employee in writing when you are going to pull a credit report for employment purposes. If you are relying on that report to take an "adverse action", i.e., denying a job application, you have to give the individual advance notice that includes the copy of the credit report and a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act" which is also by the Federal Trade Commission. Yes, of course I will give you the link. It is here: http://www.uhd.edu/about/hr/forms/fcra_2.pdf
So, check out the article and all the requirements, it is extremely helpful. Any questions, I am here.
As of April 3, 2009, employers must now use the revised I-9 form. Implementation of the new form was delayed but is now in effect. The form is here! http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf
Want to learn ways to protect yourself against identity theft? Interested in finding out some estate planning tools to protect your assets? Then, you may want to join me on April 8, 2009 for a free seminar. The details are here: http://blog.themattacolafirm.com/PDF/TMF_ID_Theft_Seminar.pdf
Most of you know that the Family Medical Leave Act, passed in 1993, mandates that employers with 50 or more employees grant their employees up to 12 weeks of unpaid leave for a serous health condition of the employee or their immediate family or for a birth/adoption of a child. The FMLA also prohibits discrimination against an employee for utilizing an FMLA leave and mandates that the employee's job or a substantially similar one still be there upon his or her return.
Yet, out there floating in the Congressional stratosphere, are pieces of legislation that would expand these requirements. There is the Healthy Families Act (S.910 / H.R. 1542) which would mandate that employers with 15 or more employees provide them with seven paid sick days a year. And if you were thinking 'Fine, then I wil reduce their vacation pay accordingly in order to afford this' - sorry, the Bill says you cannot do that. This legislation was introduced last year and didn't pass but it may come around again and is worth watching out for.
There is also the Family and Medical Leave Enhancement Act of 2009, (H.R. 824) introduced last month, which would expand the coverage of the FMLA to include employers with more than 25 employees versus the 50 that is in the FMLA now. This Act would also expand the reasons an employee could take an FMLA leave such as allowing "parental involvement leave" to participate in or attend children's and grandchildren's educational and extracurricular activities and also for the employee to attend regular medica/dental appointents or attend to the needs of an elderly relative, such as visiting them in an nursig home.
Just some things to watch out for and to maybe call your Congressman about - brought to you by The Mattacola Law Firm Blog on this brisk March Monday. Enjoy.
Lawyers are big nerds when it comes down to it and I'm no exception, especially when it comes to technology. I love a good gadget especially when it helps me manage my practice and keep more clients happy at the same time. The Blackberry has certainly done that for me. I'm on my third or fourth upgrade and have loved them all, especially for the phone, calendar and e-mail functions. It's done wonders as far as allowing me to keep in contact with my clients in a responsive fashion. I can't count the amount of times I've been able to take advantage of "dead time" such as waiting for my case to be called, waiting for a train, etc. and return client e-mails, plan my schedule, search the Web, etc. It's been an invaluable practice tool.
Yet, I've got a problem. I've yearned for the iPhone since the day it was released. First, I'm an Apple convert. I truly believe they make a better product. Even though my office is still networked with PC's, for now, I itch for opportunities to get on my MacBook Pro and learn new ways to unleash its awesomeness. Second, the damn thing is just so cool. It's just more fun than the Blackberry and I've wanted to convert from Blackberry to iPhone for a while now. But, and it's a big but, I am not one to switch horses when the old one has done just fine. I'm still rocking my original iPod even though it looks like a dinosaur because I can't kill the darn thing. The Nano is way more runner friendly but there I am running races with the equivalent of an old Sony Walkman strapped to my arm because it still works just fine. As does my Blackberry.
Which leads me back to the Blackberry vs. iPhone struggle. My contract is nearly up on my existing Blackberry and my drug dealer, errr my wireless tech guy Sam, is pitching me hard on the new Blackberry Bold. He tells me for what I use it for and my profession, the Bold is much better suited for me than the iPhone. He extolls the virtues of the full keyboard, the calendar and so on and so forth. And I know he's probably right. Yet . . . I really want that iPhone! And now I run across this article courtesy of the American Bar Association which is just a great resource for all things legal, including technology.
www.abajournal.com/magazine/smartphones_which_is_best_for_you
They do a nice comparison but don't really talk about e-mail which is crucial for me. Yet, the comments on the article cover that topic nicely and it looks like the Blackberry is still winning in that department. Clearly the browser and Web capabilities along with all the cool applications are superior on the iPhone but boy does that touch keyboard scare me compared to the full, "real" keyboard on the Blackberry. So much so that I can't bring myself to pull the trigger on the iPhone. Nor can I bring myself to say, well, maybe I'll just have both. One for phone and e-mail, the other for Web and fun. Even for me, that's a bit excessive. So where does it leave me? Not sure, I'm going to continue to research it and seek out other lawyers using the iPhone and get their views on it. If you have one, feel free to post it here. It's amazing though. When I started out as a law clerk for the first firm I ever worked for in Buffalo, we all had pagers and used pay phones when we got paged. In 14 years, I've gone from that to agonizing which smartphone to utilize, it's really incredible when you think about it. It is for a big nerd like me anyway.
The Employee Free Choice Act is on the horizon and employers should be aware as it contains some drastic differences from the previous law of the land when it comes to labor organizing. Please, allow The Mattacola Law Firm Blog to break it down for you.
This Act would amend the National Labor Relations Act as it relates to employer-union relations for employers besides airlines and railroads. It would take away the secret ballot system as the way to decide if a union could form and will replace it with a certification card system. If the majority of the employees sign cards in favor of the union, presto, there is a union. It also changes the timeline as to when contract negotiations go to binding arbitration. Under this legislation, if the employer and union cannot agree on the contract after the first 90 days of negotiation, it would then go to mediation. If mediation doesn't do the trick after 30 days, it would then go to binding arbitration. There are also much harsher penalties against employers who discriminate against employees for participating in the union process.
This legislation didn't get to see the light of day under the Bush administration but President Obama has, throughout his campaign, spoken of supporting it and has spoken in great favor of the rights of unions to organize. But, now, with him having had his first taste of Washington disappointment over a couple nominations and with him trying to get bi-partisan support for this stimulus package - will the EFCA get watered down a bit as a compromise to the more conservative members of Congress?
Anything is possible in Washington - stay tuned.
And you thought Ledbetter was only the name of a Pearl Jam Song? (Yellow Ledbetter for all you fellow Eddie Vedder fans.) It all comes full circle here on The Mattacola Law Firm Blog - not only do we love to talk politics and labor and employment law but here is yet another example of fusion between the two.
President Obama's first legislative act of his presidency was to sign the Lilly Ledbetter Fair Pay Act into law on January 29. It is retroactive to may 28, 2007 and overturns the Supreme Court decision Ledbetter v. Good Year Tire & Rubber Co. by extending the filing deadlines for discriminatory employment practices. In the Ledbetter decision, the Supreme Court had ruled that an employee claiming intentional pay discrimination had to file their administrative charge within 180 or 300 days (depends on interplay between state and federal law as to which applies) of the original discriminatory act.
Now, under the Ledbetter Fair Pay Act - an employee is allowed to file that claim within 180/300 days of their last discriminatory paycheck. It is easy to see how this opens the door to a lot more claims for employers. Employers now may be faced with defending a pay decision made many years prior by people who might not even be with the company anymore.
Also, the Act also applies to age and disability discrimination, not just gender. It does, however, seem to limit liability to back pay of two years preceding the filing of the charge. What does all this mean for employers and employees? We will see says the Zen Master, We will see. More to come on this topic, for sure.
The Supreme Court clarified its view of the retaliation provision of the Title VII civil rights law today with a ruling regarding a school system employee in Tennessee. The unanimous ruling held that the anti-retaliation provisions of Title VII also apply to those who cooperate with an internal company investigation versus initiating their own complaint of sex or race discrimination. This was the right call. It doesn't make sense for an employee who initiates a complaint to be protected from retaliation and then to not protect an employee who answers questions honestly when interviewed by a superior in the context of a company investigation into race or sex discrimination. The disparity there never made sense and this decision cleans that up.
Just another update from The Mattacola Law Firm Blog! Enjoy.
A very happy lawyer watching the first of five houses come down via a FEMA grant in the Town of Westmoreland.
I've got a list of some substantial things that I need to tell all my faithful readers about but in the meanwhile, while I prepare those topics, here are some random thoughts. It is Thursday. Just in this week, this law firm has dealt with these issues - a traumatic brain injury case, a very naughty dog named Otter, the right of an individual to sell adult pleasure toys for a different company than the one she previously sold for, the demolition of a house pursuant to a FEMA grant, the expansion of a client's existing business, some estate planning and the alleged theft of some oxycodones. And the week's not over yet. And people think lawyers lead boring and mundane lives. Not this one.
Technology is incredible. I can work and produce for my clients when I'm stuck at the doctor's office or getting my oil changed, all via Blackberry or laptop. Yet, do you, the employer, have a full grasp of what your employees are doing on the computers you own, on company time? As a case in New Jersey just showed, failure by a company to correct an employee's unlawful Internet activity once it has notice that it may be going on - could expose that company to liability from those the employee hurts in the process.
In the case I speak of, an employee was transmitting pornographic images of his stepdaughter, a child, and transmitting them via the Internet, while at work. The company knew he was accessing pornographic sites at work (they didn't know about the pictures of the stepdaughter) and failed to properly stop this activity. Hence, enter the employee's soon to be ex-wife who now sues the company for helping to allow this to happen.
What's the moral of the story here? Companies, large and small, need Internet/computer usage policies in place and they need to enforce them. One needn't risk exposing their company to financial ruin over the degenerative Internet usage of a rogue employee.
Employers need to reexamine their policies about accommodating someone under the Americans with Disabilities Act, thanks to new legislation, the ADA Amendments Act of 2008 which became effective January 1, 2009. The Act definitely broadens the scope of protection under the ADA. In previous years, per the Supreme Court, whether someone was considered disabled and qualified for protection under the ADA, hinged on any mitigation measures. In other words, if a person had a seizure disorder which was completely under control with medication, and was not being hired for employment because of the seizure disorder - even though with the medicine, they never have seizures, the Supreme Court's view was they were not disabled and did not qualify for protection because of the mitigating measure. Even though it was the un-mitigated disability which formed the basis for the alleged discriminatory hiring decision. Yeah, I know, a little crazy. But now, under the new amendments, mitigating measures, other than ordinary eyeglasses or contact lenses, shall not be considered in assessing whether an individual has a disability. Thus, there are suddenly a lot more disabled people out there. Thus, the ADA just got a lot broader. And this is just one of the changes! I'll write in detail on the others but you get the gist of it all - it's time to rework those policies.
Here’s a little labor/employment news with a dab of Wall Street. The top seven Goldman Sachs executives announced that they are giving up their year end bonuses for 2008. Geeez, you think? The common man is getting crushed, daily, watching their pensions and 401k’s dry up and we should stand up and applaud this news? I don’t think so - especially when I tell you their base salaries - $600,000 and up. Anyone feel bad?
Welcome to the Blog of The Mattacola Law Firm and Greg Mattacola. Why a Blog? Lots of reasons. First, our Mattacola Law Matters newsletter has been such a hit with clients, family and friends that there has been a demand for more. More community tidbits, more legal updates, more philosophical musings, more odds and ends, just more. Well, as you might expect, that newsletter is a ton of work! It is akin to putting out a mini-magazine and whereas that may not seem so bad in and of itself, when you factor in actual legal work, family, community, fitness, etc. - well, it all adds up. So, instead of trying to put out more than 4 newsletters a year which is what we currently do, the Blog is a perfect way to reach out to everyone more regularly but without all the pomp and circumstance of the newsletter.
Other reasons for the Blog? Like all vain, self-important and pompous lawyers, I actually think I have something interesting to say from time to time and which people want to hear. In all seriousness, I just enjoy writing and reaching out to our vastly growing network of supporters and patrons so until Time, Sports Illustrated or Rolling Stone comes calling - this will have to suffice as the medium of choice!
Also, I think there is a place for this Blog in the monstrous blogosphere. It is by a law firm and a lawyer but by no means am I going to recite statutes to you. We will have some legal updates, yes, but only those which I can make palpably interesting. And it will have large doses of life and community - yes, that’s it - Law - Life - Community, there you have it. So, click that RSS feed, become a subscriber and stay tuned, I promise not to bore you too much.
This blog is posted by Greg Mattacola of The Mattacola Law Firm, located in Rome, New York and serving clients across New York State. This blog shares our thoughts on the law, our strong promotion of a fulfilled life and a deep caring for our community.
This is a blog. It is designed to pass on thoughts and information which will hopefully be of some interest to someone, somewhere. It is meant to inform, entertain and to spark some thought and dialogue amongst the readers, if there should happen to be any. The posts are not comprehensive in nature and nothing on here is intended to be legal advice upon which life decisions are made. Every legal issue and situation are different and call for unique solutions based on their factual differences and the applicable law. If you should need legal assistance, please, contact The Mattacola Law Firm directly. Do not rely solely on what you read here. This message will self destruct in ten seconds.