COVER NL 09_06.qxd - Nassau County Bar Association

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January 2015
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OF NOTE
NCBA Member Benefit – I.D. Card Photo
Obtain your photo for court identification
cards at NCBA Tech Center. Cost $10.
February 24, 25 & 26 • 9 a.m.-4 p.m.
NCBA Committee Meeting Calendar
See page 14
EVENTS
NASSAU ACADEMY OF LAW
Bridge the Gap
Saturday & Sunday, January 24-25, 2015
at Domus
See Insert and page 12
WE CARE
Children’s Festival
Friday, February 20, 2015 at Domus
See page 18
THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION
www.nassaubar.org
Boost Productivity and Raise Profits in 2015
By Allison C. Shields
It’s the beginning of another New Year,
and another chance to make a plan to move
your practice to the next level and create
systems that will help you work more effectively, attract the clients you want, and
provide them with an excellent client experience in 2015. Don’t let this be yet another
year that your ‘big picture’ goals for your
firm get put on the back burner.
Review the past year and
where you are now
Forget New Year’s resolutions; most are
abandoned within weeks, if not days.
Instead, take some time to make a real
plan for where you
want to take your
practice this year.
WHAT’S INSIDE
FOCUS: LABOR & EMPLOYMENT LAW
The Equal Pay Act, Half a Century
Later: Not Equal Yet
Page 1
Unpaid and Unprotected? Interns,
Sexual Harassment, and the Law
Page 3
Freedom of Facebook: NLRA Protection
for Employees’ Online Comments
Page 3
Browning-Ferris: A Potential Game
Changer for the Union Movement
Page 5
Cursing, Courtesy, and Concerted Activity
in the Workplace: Recent NLRB Cases
Page 7
IRC Section 125 Expands Employee
Options Under the Affordable Care Act
Page 7
Federal Courts Clarify “Good Fit”
Defense to Discrimination Claims
Page 9
Mach Mining: The Death of an
Page 9
Affirmative Defense?
GENERAL ARTICLES
Asset Protection Planning with Domestic
and Foreign Asset Protection Trusts
Page 15
UPCOMING PUBLICATIONS
COMMITTEE MEETINGS
Tues., February 10, 2015
Thurs., March 12, 2015
12:45 at Domus
First, take a hard look at your practice.
Is your practice where you want it to be?
Before you can start thinking about or
planning for the year ahead, you need to
know and accept where you stand now.
Take stock of last year’s goals:
◆ What goals (whether written or not)
did you have for your practice in 2014? Did
you want to finally get some systems in
place? Explore a new practice area? Create
better relationships with clients or attract
a higher caliber of clients to your firm?
◆ How well did you meet those goals?
◆ What benchmarks or other documentation do you have in place to determine
whether or not you met your goals?
◆ What made you successful or unsuccessful in meeting this year’s goals? What
do you need to continue doing, and what do
you need to change?
◆ What resources do you need to make
those changes?
A general review of the past year can
help you to see areas ripe for improvement:
◆ What clients/practice areas were the
most/least profitable over the past year?
◆ Who are your best/worst clients, and
where do they come from?
◆ What new strategic alliances/referral
sources have you cultivated in the past
year? What new relationships would you
like to create?
WE CARE
Dressed to a Tea
Thursday, March 19, 2015 at Domus
Details to follow
NASSAU ACADEMY OF LAW
Hon. Elaine Jackson Stack
MOOT COURT Competition
Tuesday & Wednesday
March 24 & 25, 2015 at Domus
Details to follow
Vol. 64, No. 5
Focus: Labor & Employment Law
The Equal Pay Act, Half a
Century Later: Not Equal Yet
By Rhoda Andors and Lou Graziano
On the 50th anniversary of the Equal
Pay Act of 1963 (“The Act”), the U.S.
Census Bureau found that U.S. women in
full time jobs made 78 cents for every dollar
earned by men, based on median earnings.1
The “gender gap” cuts across all occupations, and women lawyers and judges are
no exception. The ABA Journal recently
reported that women in law earn, on average, about 82% of what men earn.2
Although women’s wages, more than half
a century after the Act was passed, are not
yet equal to men’s wages, they have
increased substantially since 1963, when
women earned only 59 cents for every dollar
earned by men.3 For the next forty years,
the Act, and Title VII of the Civil Rights Act
of 1964, were engines of change as women’s
wages moved forward. Why, then, for the
past decade, have women’s wages been
stalled at the station, at about 78% of men’s
wages? This question has multiple answers,
both legal and extra-legal.
The Act’s Text
The Act states:
(1) No employer … shall discriminate …
between employees on the basis of sex by
paying wages to employees … at a rate
less than the rate … he pays … to
employees of the opposite sex in such
establishment … for equal work on
jobs…which require equal skill, effort,
and responsibility … performed under
similar working conditions, except where
such payment is made pursuant to (i) a
seniority system; (ii) a merit system; (iii)
a system which measures earnings by
quantity or quality of production; or (iv) a
differential based on any other factor
other than sex …4
The Second Circuit, in Belfi v.
Prendergast, set forth the standard for
See EQUAL PAY ACT, Page 10
The Lawyer Assistance Program provides confidential
help to lawyers and judges for alcoholism, drug
abuse and mental health problems 24/7.
Call 1-888-408-6222
Calls are completely confidential.
◆ How many new clients retained you over
the past year? How much new business did
you receive from existing or former clients?
◆ How well did you follow up with new
contacts this year? Did you use a system for
keeping in touch with potential, existing
and former clients? How effective was that
system?
See PROFITS, Page 6
JUDICIAL ELECTION RESULTS
Supreme Court
Hon. Anna R. Anzalone
Hon. Angelo A. Delligatti
Hon. Sharon M. J. Gianelli
County Court
Hon. Terence P. Murphy
Hon. William J. O’Brien
Hon. Fran Ricigliano
Family Court
Hon. Danielle M. Peterson
Hon. Thomas Rademaker
District Court
Hon. Tricia M. Ferrell
Hon. Darlene D. Harris
Hon. Ignatius L. Muscarella
Hon. Robert E. Pipia
Supreme Court and County Court
Judicial Induction Ceremony
Wednesday, January 14, 2015 at 2:00 p.m.
Family Court and District Court
Judicial Induction Ceremony
Thursday, January 15, 2015 at 2:00 p.m.
Central Jury Courtroom
100 Supreme Court Drive, Mineola
For Induction Ceremony Information
contact Dan Bagnuola: 516-493-3262
CALL FOR
NOMINATIONS
January 31, 2015
NCBA Executive Committee
NCBA Board of Directors
Nassau Academy of Law
See Page 9 for Details
2
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January 2015
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Labor & Employment Law
Unpaid and Unprotected? Interns, Sexual Harassment, and the Law
eyes and suggested they go to his room.
Wang “felt uncomfortable [but] she felt
compelled to go with Mr. Liu because he
was her supervisor.” In the room, Liu
exclaimed, “Why are you so beautiful?”
then he hugged Wang and tried to
forcibly kiss her. Wang
turned away so the kiss
landed on her cheek, then
Liu squeezed her buttocks.
Wang pushed Liu off of her,
and said, “I don’t want this”
Wang v. Phoenix Satellite
and was able to leave the
Television: Interns Are Not
room.7
Employees
Afterwards, Liu allegedly
As alleged in the combegan to insist that he could
plaint, in 2009, Phoenix
not permanently hire Wang
Satellite Television US, Inc.
because of visa issues. Wang
accepted Lihuan Wang to an
persisted to pursue a job
unpaid internship in its New Matthew Weinick opportunity with Phoenix
York office.2 Wang’s responsiand Liu eventually agreed to
bilities included assisting shooting discuss such a possibility if Wang would
news footage, scripting, and video edit- agree to go to Atlantic City with him to
ing.3 After a lunch meeting with sever- discuss a job. Worried about another
al coworkers and bureau chief sexual encounter with Liu, Wang said
Zhengzhu Liu, Liu asked Wang to she “had other plans” and she stopped
remain behind with him to discuss her pursuing a job with Phoenix.8
work and she agreed.4 Liu convinced
Wang brought suit in the Southern
Wang to ride with him to his hotel room District of New York alleging a hostile
so that he could drop off some items.5 work environment, quid pro quo sexual
During the cab ride, Liu made several harassment, and retaliation under the
sex-based comments which made Wang New York State and New York City
uncomfortable.6
Human Rights Laws (respectively,
The two arrived at Liu’s hotel and he “NYSHRL” and “NYCHRL”), based on
convinced her to go upstairs where they Liu’s conduct.9 Phoenix moved to dissat in an isolated area of a coffee bar miss the complaint alleging Wang was
located on the same floor as his room. not an employee within the meaning of
Liu told Wang that she had beautiful the laws which cover only employees.
In 2013, a decision by Southern
District Court Judge P. Kevin Castel
drew attention to a hole in New York
State and New York City workplace
protection laws.1 This year, local governments reacted to the decision and
expanded employment discrimination laws to protect a
vulnerable segment of the
State and City’s workplaces –
unpaid interns.
The NYCHRL prohibits an “employer” from discriminating against “any
person ... in compensation or in terms,
conditions or privileges of employment.”10 Thus, the Court determined
that Wang must be an employee to
maintain a hostile work environment/
sexual harassment claim against
Phoenix. Accordingly, the issue presented was whether unpaid interns are
employees under the NYCHRL. The
Court determined that the question was
an issue of first impression in New York
State and federal courts.11
The Court began its analysis by looking at federal law, which it found clearly requires that a person receive compensation to be considered an employee.
Wang also did not contest such proposition, but argued that the NYCHRL
must be analyzed independent of federal law because of its “uniquely broad
and remedial purposes.”12 She urged
the Court to adopt a balancing test,
arguing the Court should look at the
purported employers’ ability to hire, dismiss, supervise and control tasks, and
then balance such factors with whether
the employer compensated the plaintiff.
The Court disagreed. Instead, the
Court noted that the test Wang urged
the Court to apply is used to determine
whether a defendant is an employer, not
whether the plaintiff is an employee.13
Wang’s test, first used by the Fourth
Department, looks at: “(1) the selection
and engagement of the servant; (2) the
payment of salary or wages; (3) the
power of dismissal; and (4) the power of
control of the servant’s conduct....”14 The
Court reiterated that this test is not an
appropriate test to determine whether a
plaintiff is an employee.
The Court ultimately decided that it
was appropriate to seek guidance from
federal law because the statutory language of Title VII (the Federal gender
anti-discrimination statute) was textually similar to the NYCHRL.15 Relying
on the Second Circuit’s holding in
O’Connor v. Davis,16 the Court held that
“remuneration is a threshold inquiry
establishing the existence of an employment relationship.”17 Since Wang did
not receive pay, she could not be an
employee. Accordingly, the Court dismissed the hostile work environment
claim.18
The Legislative Response
The shocking result from Wang is
that interns were left open to sexual
harassment. If Phoenix paid Wang, the
very same behavior could have been
found to be unlawful by a jury.19 But
because she did not get a paycheck, she
had no recourse under the anti-discrimination laws.
The result was even more alarming
because interns are arguably in a more
susceptible position than paid counterparts. A quid pro quo sexual harassment claim protects employees from
supervisors, who are in a power posi-
See INTERNS, Page 16
Freedom of Facebook: NLRA Protection for Employees’ Online Comments
Social media is the new “talking
around the water cooler.” The conversation, however, is forever memorialized
on the Internet and continues long after
the employees walk away from the
proverbial “water cooler.”
How can employers stop such
Internet chatter? One would think a
social media policy might help, or that
terminating employees that badmouth
the company would be acceptable, but
many recent decisions of the National
Labor Relations Board say otherwise.
Over the last few years, the NLRB
has taken an increased interest in
reviewing workplace policies that prohibit employees from discussing the
terms and conditions of their employment on social media sites, such as
Twitter and Facebook, as violative of
the National Labor Relations Act interfering with employees’ rights to engage
in concerted activity.
Recently, there have been several
notable NLRB decisions discussing the
interplay between social media,
employer policies and the NLRA. Each
decision gave employers important and
valuable information to consider in
drafting their social media policies.
For example, in the most recent
notable case, Three D, LLC d/b/a
Triple Play Sports Bar and Grille,1 the
NLRB determined that the company
violated the NLRA “by discharging two
employees for their participation in a
Facebook discussion involving claims
that employees unexpectedly owed
additional State income taxes because
of the [company’s] mistakes.”2 There
was no question that the discussion
involved complaints regarding wages.3
The NLRB, however, further wrestled with the question of whether
employees who “liked” the discussion
were sufficiently adopting the content
of those discussions for protection under
the NLRA. On that issue, the NLRB
noted that while simply clicking the
“like” button is “more ambiguous” than
commenting on the discussion, it is
“expressing agreement”4 with the coworker’s complaint.
The NLRB also held that the employer’s Internet and blogging policy violated the Act. Specifically, the policy
warned that by “engaging in inappropriate discussions about the company,
management, and/or co-workers, the
employee may be violating the law and
is subject to disciplinary action, up to
and including termination of employment.”5 The NLRB held that this policy
was overly broad and it could unlawfully chill employees in the exercise of
their Section 7 rights. The employer
was ordered to discontinue using the
policy.6
What is Protected Activity
Under the Act?
Section 7 of the NLRA provides that:
Employees shall have the right to
self-organization, to form, join, or
assist labor organizations, to bargain
collectively through representatives
of their own choosing, and to engage
in other concerted activities for the
purpose of collective bargaining or
other mutual aid or protection, and
shall also have the right to refrain
from any or all of such activities....7
When is a Social Media Policy
Too Broad?
An employer violates Section 8(a)(1)
of the NLRA where a policy “would reasonably tend to chill employees in the
exercise of their Section 7 rights.”13 To
make such a determination, the NLRB
utilizes a two-step inquiry to determine
if a policy may have such an effect.14
First, a policy cannot explicitly restrict Section 7 protected
“A core activity protected
activities. If the policy does
by Section 7 is the right of
not outwardly do so, it will be
employees to discuss, debate
found to violate Section
and communicate with each
8(a)(1) upon a showing that:
other regarding their work(1) employees would reasonplace terms and conditions of
ably
construe the language to
8
employment.” It has been
prohibit Section 7 activities;
long recognized that this
(2) the policy was promulgatright includes labor union
ed in response to union activdiscussions, as well as the
ity; or (3) the policy has been
right of employees to discuss
organization amongst them- Cynthia A. Augello applied to restrict the exercise of Section 7 rights.15
selves.9 It should be noted
In another case,16 the
that not all work-related information is
employer’s
online
communications polipotentially protected by Section 7,
cy was challenged where it was argued
although a great deal of it is.10
Moreover, employees have the right that portions of the policy were overto engage in concerted activity under broad and would possibly chill employSection 7 of the NLRA.11 Concerted ee conduct protected by the Act.17
activity is activity undertaken for the “Where the rules are likely to have a
employees’ mutual aid and protection, chilling effect on Section 7 rights, the
including, for example, discussing the Board may conclude that their mainteterms and conditions of employment, nance is an unfair labor practice, even
such as wages, policies and workplace absent evidence of enforcement.”18
treatment.12
See NLRA, Page 16
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Nassau Lawyer
THE AUTONOMOUS VEHICLE
The sometimes remarkable pace of technological inno- offer the prospect of drastically reducing the more than
vation is often contrasted with the more relaxed pace of 30,000 lives lost every year in the U.S. due to automobile
legal development. Today, we see this reflected in the accidents. And autonomous vehicles offer other advanprogress with self-driving cars and drone technology, tages, such as increased mobility for the elderly and the
where the law has yet to keep pace with technological infirm.
Of course, there will be collisions involving autonomous
innovations.
A case in point is the Google Self-Driving Car, which automobiles, as no system can eliminate error. Who, then,
is a project to develop autonomous cars. For the past sev- is responsible if an autonomous vehicle gets in a wreck?
eral years, Google has deployed a test group of modified, Our current legal system is based on holding drivers legalcommercially-available automobiles equipped with a ly responsible for negligent operation, and yet this system
variety of sensors, laser range-finders, and high-defini- would not apply to driverless vehicles. A few states have
passed laws regulating the licensing and use of
tion 3-D maps that allow the vehicles to travautonomous vehicles, but none has addressed
el without human input or control. These
the issue of liability for personal injury or propvehicles, with human drivers on stand-by to
erty damage. As an attorney for the California
override the computer controls, have travDepartment of Motor Vehicles observed recentelled more than 700,000 miles without incily, “technology is ahead of the law in many
dent, traversing roads as diverse as desert
areas,” for current state laws “presume to have
highways in Nevada to the Golden Gate
a human being operating the vehicle.”
Bridge and the serpentine Lombard Street in
Some commentators argue nothing needs
San Francisco. A popular YouTube video
to be done. They believe existing products
illustrates the promise of this technology,
liability law offers a “time-tested framework
showing a legally-blind California resident in
that has been proven to be adaptive to techa Google Self Driving Car being transported
nology-driven liability issues in many other
without human intervention from his home to
contexts,” and argue that new state or federa drive-through restaurant, to a dry-cleaning
al laws establishing or regulating liability
store, and then back home.
are neither necessary nor prudent.
On December 22, 2014, Google unveiled the
Others argue autonomous cars mark a revnext step in its program. Progressing from
olutionary
change in technology, requiring a
modifying commercially-available vehicles, it
John P. McEntee
comprehensive set of federal laws to protect
introduced its own autonomous vehicle. The
vehicle is revolutionary, as it has no steering wheel, promising technology from frustration by liability conaccelerator pedal, brake pedal, or mirrors. Indeed, it has cerns and a patchwork of varying state laws. As examno human controls of any kind. With the removal of the ples, they point to the federal preemption of laws relating
human safety net, though, Google has surpassed current to childhood vaccines (National Childhood Vaccine Injury
law, as no state allows fully autonomous vehicles to be Act), nuclear power (Price-Anderson Nuclear Industries
operated on public roadways without human override Indemnity Act), and light aircraft manufacturing
(General Aviation Revitalization Act) as examples of fedcontrols.
eral regulation of liability for products that can cause
injury but are nevertheless deemed to have a net safety
“technology is ahead of the law
benefit.
Occupying a middle ground are commentators who
in many areas”
argue liability issues can be resolved through the adoption of state laws, asserting that liability for vehicle
Fears about automated technology applied to automo- manufacturing defects has and should remain the
biles are not new. When Chrysler introduced cruise con- province of state courts applying state tort remedies.
All of the commentators recognize that while there
trol in 1958, in an option it called “Auto-Pilot,” Popular
Science magazine called the development “fairly omi- will be a tremendous net safety benefit to autonomous
nous” and warned that “the robots are slowly taking over automobiles, there will be accidents and injuries attriba driver’s chores.” And yet today, cruise control and utable to defects in future vehicle automation systems.
other driver aids such as anti-lock brakes and stability Although both Google and the CEO of Nissan are confident that fully autonomous vehicles can be in dealer
control systems are common and well-accepted.
A 2008 study by the National Highway Trans- showrooms within five years, it is difficult to be equally
portation Safety Board concluded, “human error is the confident that, given the complexity of the issues, approcritical reason for 93% of crashes.” With the elimination priate laws addressing liability for these vehicles will be
of human error arising from inattentiveness, fatigue, in place by then, leading to a collision between technoloinexperience, and intoxication, autonomous vehicles gy and the law.
FROM THE
PRESIDENT
Attorney Rates Increased for
Deferred/Reduced Fee Matrimonial Panel
By Valerie M. Zurblis
The Nassau County Bar Association Board of Directors has
approved new Lawyer Referral Information Service (LRIS) rules
that include increased hourly rates and retainers for attorneys
who join the Deferred/Reduced Fee Matrimonial Panel.
Jonathan Klee, chair of the LRIS Committee, said “This is an
important service we provide to those in difficult situations who
cannot afford representation, but are ineligible for pro bono services. We found that the current fee schedule was antiquated and
needed to be updated to encourage more attorneys to join the
Deferred/Reduced Fee Matrimonial Panel and become more
involved.”
Keeping in mind that this is a reduced fee panel, the retainer
was increased to $1,500 for the first 10 hours, then an hourly
rate of $150 thereafter. New rules include criteria to determine
client eligibility and to clarify attorney responsibilities to protect
both the attorney and the client.
Potential clients are evaluated by Nassau/Suffolk Law
Services and referred to the Bar Association before a referral is
made to a member of the Deferred/Reduced Fee Panel. The new
rules also provide guidance for attorneys who take on a case and
later discover that the client's income makes him/her ineligible
for reduced fees.
The NCBA’s Lawyer Referral Information Service is an effective means of introducing people with legal problems to attorneys experienced in the area of law in which they need assistance. Membership on the Panel is an exclusive benefit to active
NCBA members.
“We encourage our member attorneys to become involved
with the Deferred/Reduced Fee Matrimonial Panel. There is no
extra charge for an attorney who is already a member of the
LRIS panel to also participate in the Deferred/Reduced Fee
Matrimonial Panel,” Klee emphasized.
One may obtain additional information, a copy of the Rules
For Panel Membership, and the LRIS application on the NCBA
website at nassaubar.org, or by contacting Pat Carbonaro 516747-4070, pcarbonaro@nassaubar.org.
The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York
State lawyers. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its
editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.
Nassau
Lawyer
The Official Publication
of the Nassau County Bar Association
15th & West Streets, Mineola, N.Y. 11501
Phone (516) 747-4070 • Fax (516) 747-4147
www.nassaubar.org
E-mail: info@nassaubar.org
NCBA Officers
President
John P. McEntee, Esq.
President-Elect
Steven J. Eisman, Esq.
First Vice President
Martha Krisel, Esq.
Second Vice President
Steven G. Leventhal, Esq.
Treasurer
Elena Karabatos, Esq.
Secretary
Richard D. Collins, Esq.
Executive Director
Keith J. Soressi, Esq.
Editor-In-Chief
Christopher J. DelliCarpini, Esq.
Associate Editor
Allison C. Shields, Esq.
Editor/Production Manager
Sheryl Palley-Engel
Assistant Editor
Valerie Zurblis
NCBA Director of Marketing and PR
Photographer
Hector Herrera
Focus Editors of the Month
Rhoda Y. Andors, J.D.
Michael A.H. Schoenberg, Esq.
Upcoming 2015 Focus Issues
February– Criminal Law
March – Personal Injury/Workers’
Compensation
Committee Editors
Christopher J. DelliCarpini, Esq., Chair
Allison C. Shields, Esq., Vice Chair
Rhoda Y. Andors, Esq.
Deborah S. Barcham, Esq.
Gale D. Berg, Esq.
Sean E. Campbell, Esq.
Deanne Marie Caputo, Esq.
Ellin Regis Cowie, Esq.
Marc G. DeSantis, Esq.
Anthony J. Fasano, Jr., Esq.
David J. Friedman, Esq.
Nancy E. Gianakos, Esq.
Michael R. Gionesi, Esq.
Robert S. Grossman, Esq.
Sharon Kovacs Gruer, Esq.
Adrienne Flipse Hausch, Esq.
Kristina S. Heuser, Esq.
Charles E. Holster III, Esq.
Arielle S. Howe, Esq.
Anthony F. Iovino, Esq.
George M. Kaplan, Esq.
Kenneth J. Landau, Esq.
Michael J. Langer, Esq.
Douglas M. Lieberman, Esq.
Dennis M. Lyons, Esq.
Cheryl Y. Mallis, Esq.
Angelica Marie McKessy, Esq.
Thomas McKevitt, Esq.
Jeff H. Morgenstern, Esq.
Marian C. Rice, Esq.
Daniel W. Russo, Esq.
Rayne M. Sassower, Esq.
Michael A.H. Schoenberg, Esq.
Meryl D. Serotta, Esq.
Thomas G. Sherwood, Esq.
Christina H. Singh, Esq.
Andrij V.R. Szul, Esq.
David Torreblanca, Esq.
Eric Anthony Zeni, Esq.
Published by Long Island Business News
(631) 737-1700; Fax: (631) 737-1890
Publisher
Graphic Artist
Scott Schoen
Nancy Wright
Nassau Lawyer (USPS No. 007-505) is published
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additional entries. Contents copyright ©2015.
Postmaster: Send address changes to the
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Nassau Lawyer
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Browning–Ferris: A Potential Game Changer for the Union Movement
Much has been made of the ruling on ing, firing, discipline, supervision, and
July 29, 2014 by the National Labor direction.”2 That ruling was later interRelations Board’s General Counsel, preted by the NLRB to require “direct
which authorized complaints to go for- and immediate” control by the putative
ward with regard to alleged unfair labor employer over employment matters.3
practice violations of the National
The impact of this definition of a
Labor Relations Act by McDonald’s, joint employer is significant. It affects
USA, LLC and some of its franchisees. collective bargaining because, instead of
The result of that decision – in a case allowing for larger collective bargaining
that is a long way off from
units with the power of numbeing presented to the Board
bers behind it, a more narrow
for decision – is the General
definition of a joint employer
Counsel found enough merit
limits opportunities for
in the argument that
unionization as potential
McDonald’s, USA, LLC is a
members are splintered
joint employer that the comamong hundreds of small
plaints will be issued with
companies.
McDonald’s, USA, LLC
Likewise, as the NLRB is
named as a joint-employer
charged with investigating
respondent in connection
and prosecuting unfair labor
with alleged unfair labor
practices under the NLRA,
practices.1 However, there is
employers who believed they
Paul F. Millus
had no involvement with cera far more immediate contain terms and conditions of
cern for employers, unions,
employment are suddenly and potenand employees just below the horizon.
tially liable for violations. Finally, in a
Who is a Joint Employer?
world where franchising4 has exploded
Since 1984, a pair of rulings by the and more and more business are using
NLRB set the standard for what consti- contingent or temporary employees,5
tutes a joint employer for purposes of the expansion of the joint-employer docenforcement of the NLRA. In Laerco trine could result in the largest increase
Transportation and TLI, Inc. the of private union membership in
Regional Director was determined to decades. The stakes are indeed high.
have correctly ruled that joint-employer
Browning-Ferris
status is established when there is “a
showing that the employer meaningfulIn the case of Browning-Ferris
ly affects matters relating to the Industries of California, Inc. and FRRemployment relationship such as hir- II, LLC d/b/a Leadpoint Business
Services and Local 350, International
Brotherhood of Teamsters, Case 32-RC109684, which will be argued before the
Board as it considers seventeen amicus
briefs, the issue will be whether the
Board should adopt a different standard
for what constitutes a joint employer.
In this case, Petitioner, Local 350,
International Brotherhood of Teamsters
(“Local 350”) seeks to represent all fulltime and regular part-time employees
jointly employed by FRR-II, LLC d/b/a
Leadpoint Business Services (“Leadpoint”), a temporary staffing agency,
and Browning-Ferris Industries of
California, Inc. (“BFI”), the client to
whom Leadpoint supplies employees.
The Regional Director rejected Local
350’s claim that Leadpoint and BFI
were joint employers, and the sole issue
on appeal is whether BFI jointly
employs Leadpoint’s workers.
The Union’s Perspective: Time for
a Broader Standard
Local 350 argues that, while the facts
support a finding that the employers are
joint employers even under the present
standard, the Board should adopt a
broader standard to effectuate the purposes of the NLRA and to conform to
prior case law and “industrial realities.”
Local 350 maintains that “requires the
Board to consider not merely the indicia
of control exerted over the employees by
each employing entity, but also the relationship, and the extent of control as
between the two employing entities,”
which, it concludes, “requires consideration of indirect control.”6
Next, Local 350 contends that the
Board’s current analysis ignores the
“industrial realities” of today’s workplace.7 From Local 350’s standpoint, the
Board’s narrow view of employment
“makes even less sense in our current
economy” where “the modern worker is
awash in a sea of multi-layered and
dependent relationships, and the current joint employment standard leaves
him or her bereft of meaningful resort to
the protections and processes of the
Act.”8
Local 350 is not alone in its quest to
change the employment landscape for
millions of workers. In addition to multiple amicus briefs supporting its position, the General Counsel of the NLRB
has submitted a supporting amicus
brief. While stating that the General
Counsel “expresses no view of the merits of the case” because representation
proceedings are “non-adversarial in
nature,” it does assert that it maintains
an interest in the outcome. The General
Counsel states unequivocally that the
Board should not adhere to its existing
joint-employment standard and should
adopt a new standard, where under the
“totality of circumstances” a jointemployer relationship exists where “the
putative joint employer wields sufficient influence over the working conditions of the other entity’s employees
such that meaningful bargaining could
See BROWNING-FERRIS, Page 19
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6
n
January 2015
n
Nassau Lawyer
The 116th
SAV
TH E
DA E
TE!
Annual Dinner Dance
of the Association
Saturday, May 9, 2015
6:30 p.m.
Long Island Marriott
Uniondale, New York
Distinguished Service Medallion Recipient
The Honorable A. Gail Prudenti
Chief Administrative Judge
New York State
and Celebrating Our 50 & 60 Year Honorees
Details to Follow
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For The Entire Legal Profession
PROFITS ...
Continued From Page 1
◆ How up to date and effective are
your marketing materials (business
cards, website, blog, newsletter,
brochure, email campaigns, seminars/
presentations, etc.)? Do they accurately
reflect who you are and what you do for
your clients? Even more importantly,
do they accurately describe your clients
and their needs, wants and concerns?
◆ How large are your receivables
and what can you do to reduce them?
◆ How often did you convert
prospects into clients over the past
year?
◆ Are you using staff, outside
sources and vendors effectively, or
could you delegate better?
◆ What improvements have you
made in your practice over the past
year for the benefit of your clients?
What can you do to knock your clients’
socks off in the future?
If you already have good systems,
records and documentation in place,
you may be able to obtain reports containing this information from your computer system in a few clicks. If not, you
may want to consider a systems overhaul to make this information easier to
obtain in 2015, as it can be invaluable.
For example, if you know where your
business is coming from and you aren’t
getting the kind of business you’d like,
you may want to explore where the
“less desirable” business is coming
from. If all of your “bad” referrals are
coming from the same place, you may
need to re-educate those referral
sources; if your referral sources don’t
know what your “sweet spot” is, they
can’t refer you the best clients.
Similarly, if your marketing materials
are not effective, accurate and timely, if
they are attracting clients that you
don’t want, you’ll want to revisit your
marketing materials.
Last, rate how you’re doing overall
in the following areas on a scale of 1-5:
Client service
Administration and management
Cash flow and finances
Personnel and staffing
Professional development
Marketing
Business development
Productivity
Technology
Space and facilities
Once have a good picture of where
you are now, you can start making your
plan for 2015.
Limit yourself to three goals
NCBA CAREER CENTER
www.nassaubar.org
Attorneys
Associates
Paralegals
Legal Secretaries
Administrative
Interns
Expert Witnesses
Finance
Consultants
Marketing
Office services
Recruiters
Another community Service from the Nassau County Bar Association
One of the most common goal-setting
mistakes is trying to do too much at
once. Don’t set too many goals.
Although you may have a long list of
things you wish you could do in your
practice, a long list can quickly become
overwhelming. Instead, choose three
main areas you’d like to improve in
your practice over the next year.
Make sure you choose the three
goals that you think will have the most
impact, or that are the most urgent,
and focus all of your time on those three
goals. Even with a three-goal limit, you
will have numerous action steps
required to reach each one. Anything
that doesn’t work toward those three
goals should be sidelined or put on a list
for the future so that it doesn’t distract
from your focus.
When you set a goal, estimate how
long you actually think it’s going to
take to accomplish that goal. Then
build in some additional time for unexpected obstacles and inevitable delays.
Write down the list of your three
goals and keep it posted somewhere you
can see it and be reminded every day.
Develop a plan to achieve your goals
Write down the purpose of each goal,
the reasons you chose that goal, and your
vision of the outcome. Brainstorm ideas
for strategies to achieve the outcome.
For example, if one of your goals is to
increase your client base by 20% over
the next year, your strategy might
include targeting a new industry and/or
increasing your online marketing efforts.
List the steps required to pursue
each strategy. These might include
identifying industry needs, researching
potential clients, or developing online
content. Be as specific as possible. Don’t
forget to share your goals with the rest
of your firm.
Armed with all of this information,
you can create an action plan. The
action plan should identify specifically
what needs to be done, who will be
responsible for doing it, how will it be
done, how you will follow up, when each
item should be completed, who will
supervise each action, and what mechanisms will be put in place to determine
compliance.
Schedule the individual
action steps as appointments
just as you would schedule
client appointments.
Schedule time now
Intentions don’t create results – only
actions do. But some of the most important actions never make it to your
schedule because they don’t have built
in deadlines or aren’t directly tied to
client matters or revenue. Often these
are the most important actions
required to achieve your goals. To avoid
this problem, once you’ve outlined the
goals, strategies and action steps, take
out your calendar and schedule time
now to get moving on your plans.
Decide now when and how often
you’re going to work on each of your
goals and block the time on your calendar, keeping in mind the amount of
time you’ve estimated to complete the
goal. Schedule the individual action
steps as appointments just as you
would schedule client appointments.
Don’t leave another year to chance.
Make a plan now to take action on your
goals, but stay flexible. Regardless of
how well you plan, obstacles may arise,
the market may change or new opportunities may come to light. Keep your
plan flexible by building in time to periodically review your goals and the
progress of your action items and make
any adjustments necessary.
Allison C. Shields is the President of Legal
Ease Consulting, Inc., providing consulting
services to lawyers on practice management
and business development issues. She is
the co-author of LinkedIn in One Hour for
Lawyers and can be reached at Allison@
LegalEaseConsulting.com. She is also the
co-chair of the NCBA Membership Committee and the Associate Editor of the Nassau
Lawyer.
Nassau Lawyer
n
January 2015
n
7
Cursing, Courtesy, and Concerted Activity
in the Workplace: Recent NLRB Cases
By Steven S. Goodman and
Alyssa M. Smilowitz
Following a trio of decisions, handed
down by the National Labor Relations
Board this past summer, employers
may find their policies and practices
related to civility and courtesy in need
of a second-look. In three cases filled
with increasingly cringe-worthy language, employers found themselves on
the losing end of the battle for civil
workplaces, each based on a different
legal analysis.
Plaza Auto Center Inc. Decision
In May of this year, the NLRB decided a case involving a used car dealer in
Arizona. In Plaza Auto Center,1 following
his hire as a car salesman, an employee,
who worked only two months before his
termination, managed to create quite a
ruckus despite his brief tenure.
Throughout his employ, the employee posed many questions to various
members of the staff regarding the
employer’s practices and policies.
Following a report of the employee’s
various complaints, the employee was
called into a meeting with the owner
and the sales manager in the owner’s
office. The intent of this meeting was
not to fire the employee.
At one point the owner indicated
that if the employee did not like the
employer’s policies, the employee “need
not work there.” Immediately following
this comment, the employee pushed his
chair back in the small office and proceeded to loudly call the business’
owner a “f***ing mother f***er,” a
“f***ing crook” an “a**hole,” and other
insulting comments. The employee further stated that if the employer fired
the employee, the employer “would
regret it.” As a result of this, the
employee was terminated.
In its decision, which reversed the
initial decision by the Board’s
Administrative Law Judge (ALJ), the
Board found, under the “applicable
objective standard,” set forth in the
Board’s Atlantic Steel 2 decision that the
employee did not engage in menacing,
physically aggressive or belligerent conduct that would result in loss of protection under the National Labor
Relations Act.
The four factors considered in
Atlantic Steel in determining loss of protection are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) whether the outburst was,
in any way, provoked by an employer’s
unfair labor practice; and (4) the nature
of the employee’s outburst. Applying
the Atlantic Steel test, the Board found
the first three factors to be squarely in
the employee’s favor.
The Board found the “nature of the
IRC Section 125 Expands
Employee Options Under
the Affordable Care Act
The traditional model of health health plans regardless of their employinsurance involves employers offering ers’ decisions to sponsor group health
one or more very similar insurance plans. Subsidized premium assistance
plans to their entire full time workforce, is available for certain individuals
subsidizing a portion of the monthly enrolling in health plans through the
cost, and leaving the employee respon- Marketplace,6 but eligibility for such
sible for paying the balance. Under premium assistance involves several
Section 125 of the IRC1 the IRS allows factors including household income and
the availability of minimum
employees to pay this premivalue, affordable coverage
um with pre-tax dollars, subthrough their employer.7
ject to a myriad of rules.
One of the conditions of
Like employer-sponsored
this tax-free treatment is that
plans, Exchanges have an
employee health care elecannual open enrollment peritions can only be changed
od during which individuals
once a year during the
can shop for coverage options
employer’s annual open
that fit their needs and enroll
in a plan. In 2013-2014 this
enrollment period, or if the
period ran from October 1
employee experiences certain
through March 31, and for
qualifying events2 during the
2014-2015 it is scheduled to
year.
Christina N.
run from November 15
Section 125 qualifying
Villecco
through February 15. For
events include: (1) a “change
in status” (such as marriage, divorce, many employees, this Public Exchange
birth or adoption, a change in employ- period does not align with their employment status, and a dependent becoming er’s open enrollment. The differing
newly eligible, or losing eligibility for dates and respective options often leave
enrollment); (2) a significant change in employees confused, and employers trycoverage (in cost or coverage itself); (3) ing to help accommodate their workjudgment, decree or court order; and (4) forces without the necessary flexibility.
Given the strict rules surrounding
HIPAA Special Enrollment rights.3
This is not an exhaustive list, but those election changes for employees enrolled
employers most often encounter and in employer-sponsored coverage under
include in their plan documents.
IRC Section 125, allowing employees to
The
Patient
Protection
and drop coverage, make election changes,
Affordable Care Act (PPACA)4 created or add coverage only during the 30-day
Public Marketplaces5 or Exchanges in open enrollment period, it seemed that
each state, giving individuals access to
See IRC SECTION 125, Page 20
outburst” to weigh against protection of
the employee’s activity but ultimately
found that the protection was not lost,
making note of the fact that the employee’s outburst occurred during the discussion of the employee’s concerted
complaints regarding compensation
policies. The Board also afforded considerable weight to the fact that the outburst occurred in a private location (the
owner’s office) and therefore posed less
of a risk to the employer’s maintenance
of order and discipline within the workplace.
A lone member dissented from the
Board’s decision finding the employee’s
conduct so egregious that it resulted in
the employee’s forfeiture of the NLRA’s
protection.
On remand the Ninth Circuit asked
the Board to reapply the Atlantic Steel
factors in light of the fact that the
Board’s ALJ had found the Atlantic
Steel factors to weigh against the
employee. The Board reaffirmed its
decision that the employer violated
Section 8(a)(1) of the NLRA relying on
the fact that the employer, by telling
the employee he could quit or leave his
employment if he did not like the
employer’s policies or procedures, was
responsible for triggering the employee
outburst. The NLRB, once again found
that the employee did not automatically lose the protection of the NLRA based
on the verbal outburst directed toward
his employer.
Hooters Decision
In the same month as the Plaza Auto
Center decision, an NLRB ALJ, decided
a case involving two former waitresses
at a Hooters restaurant in California.3
In reaction to what the waitresses
believed to be a rigged mandatory bikini contest at the restaurant, the waitresses complained to managers and
other employees about the contest winner’s close relationship to two of the
competition’s judges. The waitresses
also complained about statements made
at a restaurant staff meeting related to
the appearance of waitresses. Based on
accounts that the two waitresses made
statements to the contest winner which
included: “You’re a f***ing b**tch” and
that argument continued into the
restaurant’s parking lot resulting in
police officers being called to the scene,
the waitresses were terminated by
Hooters for cursing in front of guests.
An unfair labor practice was filed
alleging that Hooters had violated the
NLRA by terminating employees for the
protected concerted activity of complaining about the “rigged” contest
along with other complaints. The
NLRB, applying the standard laid out
in NLRB v. Burnup & Sims,4 found
See WORKPLACE, Page 20
8
n
January 2015
Nassau Lawyer
n
IN BRIEF
Member Activities
Editor’s Note: Our December 2014 issue
marked the final In Brief column edited
by Hon. Stephen L. Ukeiley. We are
grateful for his efforts promoting our
members’ many accomplishments and
recognitions over the past seven years.
In February 2015 we welcome our new
In Brief editor, former NCBA President
Marian C. Rice.
John Belesi, Steven J. Eisman,
Samuel J. Ferrara, Ellen L.
Flowers, Patrick Formato, Neil M.
Kaufman, Michael E. Ratner, and
Carolyn Reinach Wolf of Abrams,
Fensterman, Fensterman, Eisman,
Formato, Ferrara & Wolf, LLP attorneys, were named 2014 Super Lawyers,
New York Metro Edition. Attorneys
Moriah Adamo, Andrea M. Brodie,
Jordan Fensterman, Christopher
A. Renke, Daniel H. Smith, and
Danielle M. Visvader were named
2014 Rising Stars. Attorney Betsy
Malik, also of Abrams Fensterman, was
featured in the Long Island Business
News’ 2014 Who's Who Book under
Professional Women.
James C. Ricca of Forchelli, Curto,
Deegan, Schwartz, Mineo & Terrana
LLP was honored by the Long Island
Business News with the Leadership of
Law award. The Leadership in Law
Award recognizes experience, dedication, hard work, skill, and excellence
and is dedicated to those individuals
whose leadership, both in the legal profession and in the community, has had
a positive impact on Long Island.
Kathryn (Katy) Carney Cole,
counsel in Farrell Fritz’s commercial litigation department, has been selected
by Long Island Business News as a “40
Under 40” award recipient for her leadership in business, support of Long
Island’s not-for-profit organizations and
commitment to the community. She will
be honored at a gala on Thursday,
January 29 at Crest Hollow Country
Club in Woodbury.
Former NCBA President A. Thomas
Levin of Meyer, Suozzi, English &
Klein, PC, chaired the committee at the
firm that awarded scholarships to four
Long Island veterans who served in
Iraq and Afghanistan and are now
enrolled at Nassau Community College.
The initiative, which began in 2011, recognizes local veterans who are continuing their education after returning from
service. Abraham B. Krieger, also of
Meyer, Suozzi, has been reappointed as
Chair of the Grievance Committee for
the Tenth District, Second Dept.
Appellate Division. His new term commenced December 1, 2014 and continue
until November 30, 2015.
Karen Tenenbaum of the Melville
firm Tenenbaum Law, PC, was selected
by her peers for inclusion in the 2014
edition of New York Super Lawyers as a
practitioner in Tax Law. With Yvonne
Cort of the firm, Ms. Tenenbaum
recently published an article “More
than Just Day Counts” in the Journal of
Multistate Taxation and Incentives,
about the importance of carefully planning changes of residency for state
income tax purposes. With Brad
Polizzano, also of the firm, Mses.
Tenenbaum and Cort recently spoke at
the Long Island Tax Professionals
SMART
T HE
TO GROW YOUR
·
·
·
PLACE
PRACTICE
Higher visibility with peers and public
Case referrals
Comprehensive information on courts, government,
community and members
· Find qualified employees
·
Better communication with non-English
speaking clients
· Valuable new contacts and relationships
· Rent or find office space
· Discounts on business
NCBA
Membership
Benefits
products and services
Symposium on “The Latest Residency
Audit Rules: What You Need To Know,”
and “Coping With Tax Levies, IRS
Liens & NYS Warrants.” The trio also
spoke at the Bud Rosner Memorial
Long Island Estate, Tax & Financial
Planning Conference on the topics of
domicile, statutory residency, the 183day rule, and more.
James M. Wicks, a partner in
Farrell Fritz’s commercial litigation
department, was recently appointed
Chair of the Civil Litigation Committee
for the United States District Court for
Eastern District of New York. He was
appointed to this position by Chief
Judge Carol Bagley Amon.
John Zervopoulos, managing
attorney at Salenger, Sack, Kimmel &
Bavaro (SSKB), was recently named a
partner of the firm. With offices in
Woodbury, Manhattan and Brooklyn,
SSKB concentrates its practice in personal injury and medical malpractice
law.
Jerome A. Wisselman and
Jacqueline Harounian of Wisselman,
Harounian & Associates, PC, were
again recognized by Super Lawyers as
being among the top Family Law attorneys in New York for 2014. For the sec-
ond time, Ms. Harounian was also
included in the prestigious “Top 50
Women” list for Super Lawyers. Mr.
Wisselman was also honored this year
as a “Leader in the Law” for the Partner
category of the “2014 Leadership in
Law Awards” for Long Island. Associate
Rebecca Szewczuk, also of the firm,
was selected to the 2014 Rising Stars
list. With Associate Lloyd C. Rosen,
Ms. Harounian has also been nominated as “Best Divorce Lawyer 2015” by
the Long Island Press Bethpage “Best
of Long Island.” Ms. Harounian was
also recently initiated as President of
Yashar, the NCBA Hadassah Chapter
for lawyers and judges.
Jennifer Bentley, formerly an
Associate in the Labor Practice Group,
has been named Of Counsel at
Certilman Balin Adler & Hyman, LLP.
She is based in the firm’s East Meadow
office.
The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing
news, events and recent accomplishments
of its members. Due to space limitations,
submissions may be edited for length and
content.
PLEASE E-MAIL YOUR SUBMISSIONS TO
nassaulawyer@nassaubar.org with subject
line: IN BRIEF
COMMITTEE REPORTS
including mediation, investigation, conciliation and litigation, and the EEOC’s
guidelines for arrest and conviction and
pregnancy discrimination guidelines.
The next meeting is scheduled for
January 13, 2015, at which time Jeffrey
Douglas, Esq., of Borrelli & Associates,
PLLC, will be presenting a lecture
regarding religious accommodations.
Environmental Law
Meeting Date 12/9/14
Chair: Kenneth Robinson
Guest speaker Chuck Merritt, principal of Merritt Environmental
Consulting Corp., gave a presentation
on recent American Society
for Testing and Materials
(ASTM) standards for Phase I
Environmental Assessments,
used for both purchases and
refinancing of mortgages, and
advised there is an ongoing
discussion among environmental professionals about
the standards to be used to
report the presence of vapors.
Vapors, as well as soil and
groundwater contaminants,
are now of particular conMichael J. Langer
cern.
The next meeting is scheduled for January 13, 2015 at 12:30 p.m. uled for
Labor and Employment Law
Chair: Jeffrey Schlossberg
The committee welcomed EEOC
New York District Office District
Director Kevin Berry, who delivered a
presentation addressing topics such as
how the EEOC works with NYS
Division of Human Rights, the agency’s
process for handling complaints,
Matrimonial Law
Chair: John DiMascio, Jr.
The committee held its
Annual Holiday Party at the
December meeting, which
featured the piano stylings of
our
own
Richard
N.
Tannenbaum, Esq. during
cocktail hour and live music
throughout the evening.
The next meeting is schedJanuary 14, 2015, at which
time Andrew M. Thaler, Esq., will present a lecture entitled “Protecting the
Rights of our Clients and Ourselves in
the Wake of a Bankruptcy Petition.”
Michael J. Langer, an associate in the Law
Offices of Kenneth J. Weinstein, is a former
law clerk in the United States Court of
Appeals for the Second Circuit, and a former
Deputy County Attorney in the Office of the
Nassau County Attorney. Mr. Langer's practice focuses on matrimonial and family law,
criminal defense and general civil litigation.
ADVERTISE IN THE
516-747-4070
info@nassaubar.org
Call 631-737-1700
l
advertising@libn.com
Nassau Lawyer
Federal Courts Clarify
“Good Fit” Defense to
Discrimination Claims
four other salespeople.3 The Court
noted that Buckman complained of discrimination, disparate treatment and,
specifically, one coworker’s comment
about another white employee that “he
does look the part right? ... Well, he’s
white. And a lot of our clients are white,
so at least he has that working for
him.”4
Above all of this, Buckman received
positive performance evaluations and received large
bonuses.5 Ultimately, following an economic downturn in
2007 and 2008, Calyon terminated Buckman’s employment.
Before reaching its decision, the Court reiterated
Buckman v. Calyon
the well-known McDonnell
In Buckman v. Calyon the
Douglas6 standard and statemployee, Jarvis Buckman,
ed that “… if the employer
brought a lawsuit against
articulates a non-discriminahis
employer,2
Calyon
tory reason for the chalCory Morris
Securities, alleging violations
lenged action, the burden
of Title VII and illegal termination shifts back to the plaintiff to demonbecause he was an African-American. strate that the defendant’s explanation
Calyon moved for summary judgment was pretextual.”7 While conceding
arguing that Buckman’s coworkers Buckman established a prima facie
viewed him as not being a “good fit” for case of discrimination under McDonnell
employment because he was black. The Douglas, “Calyon assert[ed] that
Court found that these remarks, such Buckman has not offered evidence peras not looking “the part,” did not raise a mitting a reasonable juror to conclude
material issue of fact for Buckman to that Calyon terminated Buckman
survive summary judgment.
under circumstances giving rise to an
Buckman started working in the inference of discrimination.”8 The Court
structured credit department of Calyon evaluated the statements at issue utiin January 2007, where he worked with
See DISCRIMINATION, Page 21
Generally speaking, in New York the
employer-employee relationship can
end for any (or no) reason. As with any
rule, however, there are exceptions.
Employees cannot be fired for an unjust
reason. But, is the employer’s belief
that the employee does not “fit in” an
unjust reason to terminate employment?
Courts, of course, are wary of an
employer using that explanation to conceal a ulterior
discriminatory
motive.
Recently, the Second Circuit
specifically addressed whether termination for not being a
“good fit” could be discrimination.1
Mach Mining : The Death
of an Affirmative Defense?
First, a former employee files a and “failure to conciliate” defenses.
charge of discrimination with the Equal However, in or after January 2015, the
Employment Opportunity Commission Supreme Court will hear EEOC v.
(EEOC) against one of your clients, Mach Mining.2 In deciding this case,
alleging unlawful employment discrimi- the Court may eliminate the “failure to
nation in violation of Title VII of the conciliate” defense.
Civil Rights Act of 1964.1 Then, after
EEOC’s Duty Under Title VII
investigating the former employee’s
Title VII requires that the EEOC try
allegations, the EEOC issues a determito negotiate an end to an
nation of “probable cause;”
employer’s unlawful employthat is, the agency believes
ment practices before suing
that the allegations have
for a judicial remedy. Most
merit. After a short and, in
federal appellate courts,
your opinion, inept attempt
including the Second Circuit
to resolve the matter pre-litiCourt of Appeals, allow
gation, the EEOC decides to
employers to raise an affirfile a lawsuit in federal court
mative defense in employagainst your client.
ment discrimination cases
You
have
defended
asserting that the EEOC
employment discrimination
failed to engage in good faith
matters in the past, but those
settlement negotiations prior
were all against private litigants, not a federal agency. David S. Feather to filing a lawsuit. This is
referred to as a “failure to
You are aware of the “usual”
affirmative defenses in a private law- conciliate” defense.
Congress requires that the EEOC
suit. However, you wonder, are there
other affirmative defenses that may be engage in specific pre-litigation activiasserted in an action brought by the ties, including investigating the claim
EEOC on behalf of an individual or indi- and attempting to “eliminate any such
alleged unlawful employment practice
viduals?
There are – including, perhaps most by informal methods of conference, conimportantly, the “failure to investigate”
See EEOC, Page 22
YOUNG LAWYER
OF THE
n
January 2015
n
9
MONTH
Anthony J. Fasano
The Young Lawyers Committee
(YLC) is proud to honor Anthony J.
Fasano, Esq., as the Young Lawyer
of the month.
Mr. Fasano works at the Law
Offices of Guercio & Guercio, LLP,
where he practices Education and
Personal Injury Law.
Mr. Fasano represents
clients in student disciplinary proceedings,
residency
meetings,
appeals to the Commissioner of Education,
guardianship proceedings, and personal
injury matters in New
York Supreme Court.
Mr. Fasano graduated cum laude from
Adelphi University in
2009.
In 2009, Mr. Fasano also
received his commission as a
Second Lieutenant in the New York
Army National Guard as a Field
Artillery Officer. He was activated
and served during Operation
Hurricane Irene and Operation
Superstorm Sandy, receiving the
Humane Service to New York State
Ribbon for both.
In 2013, Mr. Fasano graduated
cum laude from Touro Law School.
During law school, Mr. Fasano
served as a Research Editor on the
Touro Law Review. His case note,
The Decline of the Confrontation
Clause in New York, 28 Touro L.
Rev. 929 (2012), was published and
subsequently cited by the New York
State Supreme Court
in People v. Umpierre,
951 N.Y.S.2d 382 (Sup.
Ct. Bronx County
2012). Mr. Fasano was
a Dean’s List recipient
for multiple semesters
throughout law school.
Mr. Fasano is admitted to practice in
the State of New York
and the United States
District Court for the
Eastern District of
New York.
Mr. Fasano is an active member
of the Nassau County Bar
Association, including the Young
Lawyers Committee and the
Publications Committee, as well as
the New York State Bar Association’s Young Lawyers Section.
The YLC congratulates Mr.
Fasano on his accomplishments and
contributions to the community and
wishes him continued success in his
endeavors.
CALL FOR NOMINATIONS
The Nominating Committee welcomes applications
for nominations to the following
Nassau County Bar Association
offices for the 2015-2016 year:
q President-Elect
q Vice-President
q Treasurer
q Secretary
Applications are welcome for nominations to serve on the
Nassau County Bar Association Board of Directors. There
are eight available seats, each for a three year term.
The Nominating Committee invites applications for nominations to the
following offices of the Nassau Academy of Law for the year 2015-2016:
Dean
Associate Dean
Assistant Dean (3)
Treasurer
Secretary
Counsel
NCBA members interested in applying for any of the above
nominations, or in submitting suggestions for such nominations,
are invited to submit such information to:
Peter J. Mancuso, Chair, Nominating Committee, NCBA,
15th & West Streets, Mineola, NY 11501 or
email: spalley-engel@nassaubar.org.
Deadline for all nominations:
January 31, 2015
10
n
January 2015
n
Nassau Lawyer
EQUAL PAY ACT ...
“national origin.” His plan backfired. Five women members convinced the House to include “sex” as a fifth protected characteristic and Smith’s amendment was
passed.11
Without Congressional hearings on Smith’s
proving a violation of the Act, stating that, “[t]o amendment, it was unclear what Congress intended
prove a violation of the Act, a plaintiff must first regarding its scope. How adding “sex” to Title VII
establish a prima facie case of discrimination by might impact the Act, which also addressed sexshowing: i) the employer pays different wages to based employment discrimination, had not been conemployees of the opposite sex; ii) the employees per- sidered.
form equal work on jobs requiring equal skill, effort,
Within a few years, there was a need to pass a corand responsibility; and iii) the jobs are performed recting amendment to Title VII: the Bennett
5
under similar working conditions.”
Amendment, which was intended to reconcile the proof requirements of the two
If the plaintiff establishes a prima facie
statutes.12 The U.S. Supreme Court furcase, the burden of persuasion shifts to the
ther clarified the differences between the
defendant, who must prove the disparity in
Act and Title VII in County of Washington
pay is based on one of the four affirmative
v. Gunther.13 First, the Act does not
defenses. If the defendant cannot prove
require proof of intentional sex discrimithat the difference in pay is based upon one
nation, unlike disparate treatment sex
of the four defenses, whatever portion of
discrimination under Title VII. Second, a
the disparity the defendant cannot explain
sex discrimination claim under Title VII,
is attributed to discrimination and the
unlike a claim under the Act, does not
plaintiff is entitled to that difference.
require the plaintiff to prove he or she perIn general, the equal work elements of
formed work equal to or even “substanthe plaintiff’s prima facie case have been
Rhoda Andors
tially equal” to the work of the comparator
narrowly construed by the courts, requirof the opposite sex.
ing evidence that the jobs compared are
Practitioners should be aware of these differences
“substantially equal,”6 a demanding standard. The
factor other than sex defense has been applied broad- in deciding whether to file a claim under the Act,
ly for women in upper level jobs, providing defen- under Title VII or under both statutes.
dants in some circuits with an “any factor under the
The Act in the Second Circuit
sun defense.”7
One prominent equal pay researcher states that
A recent decision from the Second Circuit demonthe “steep litigation hurdles” imposed on plaintiffs by strates the difficulty of surviving a motion to dismiss
the equal work standard and the “catch-all” factor under the Act when the plaintiff is a professional. In
other than sex defense have made the Act an increas- EEOC v. Port Authority of New York and New Jersey,
ingly powerless statute, excluding many women from the EEOC alleged that a class of fourteen female
its protection by imposing a glass ceiling on wages.8
attorneys in the Port Authority’s in-house law
department was paid substantially less than compaThe Act’s Early Decades
rably situated male attorneys.14 The court held that
When the Act became law in 1963, it amended the despite the fact that all of the female attorneys in
Fair Labor Standard Act’s (FLSA) Minimum Wage question held the same job code and title as the male
section.9 The Wage and Hour Division of the attorneys and worked in the same department, withDepartment of Labor (DOL) was authorized to out actual evidence that the job content was “subenforce its provisions, requiring employees perform- stantially equal,” the complaint must be dismissed.15
ing equal work to be paid equal wages regardless of
Since the Port Authority did not have job descripsex.
tions for the attorneys, the only way to determine job
Since employers hold wage and salary information content would have been by interviewing both
confidential, having compliance officers of the DOL female and male attorneys to determine the actual
enforce the law made sense. No other branch of the work performed. However, a plaintiff would not norFederal government had more experience in review- mally have access to the comparators prior to discoving payroll records, and the FLSA permitted investi- ery. Requiring such content in the pleadings may
gations without the need for a complaint. Further, make it virtually impossible to challenge pay disparduring a DOL examination of payroll records for min- ity, since a plaintiff would not have that level of facimum wage and overtime compliance, a disparity in tual detail at the pleading stage.
wages based on sex might become evident.
As for the factor other than sex defense, the Second
At present, one of the greatest barriers to enforce- Circuit restricts the defense to factors that are “job
ment of the Act is employees’ lack of access to other related” or “adopted for a legitimate business reaemployees’ wage data. In 1963, DOL investigators son.”16 In some cases, the business-related factors
had access to those records.
have tended to be subjective, such as “inducement to
An agency reorganization undertaken in 1978 during hire the best person for the job,” “market forces,”17
the Carter Administration took the Act away from the and “salary matching” (paying a higher salary to
DOL and transferred its enforcement to the Equal match an incoming employee’s previous earnings).18
Employment Opportunity Commission (EEOC). This The Southern District of New York has cautioned that
reorganization had the unintended consequence of tak- such factors are not legitimate if they result from a
ing away the Act’s most effective tool for discovering woman’s inferior bargaining power as a woman, recwage disparities: the payroll audit. Since the EEOC ognizing that these factors may rely on pre-existing
does not collect wage data for employees in the private discrimination against women.19
sector, the agency “lack[s] sufficient information to adeWill The Act Be Amended?
quately enforce the equal pay laws.”10
The transfer of the Act’s enforcement authority
Over time, the demanding equal work standard
from the DOL to the EEOC was one action that has has become more restrictive for plaintiffs and more
hindered the Act in reaching its intended goal of end- women have become professionals and executives,
ing sex discrimination in wages. The other event subject to the catch-all factor other than sex defense.
that affected the Act originated with the legislative It is no surprise, then, that under the Act, “plaintiffs
battle to pass the Civil Rights Act of 1964.
of all types are substantially more likely to lose their
cases on appeal in the current decade than at any
Legislative Actions: The Act and
other time,”20 and thus likely to fall into the gender
Title VII, the Back Story
gap.
Title VII of the Civil Rights Act of 1964 was origiThe Paycheck Fairness Act (PFA) would amend
nally intended to protect employees from discrimina- the Act and Title VII, providing more effective remetion based upon four protected characteristics: race, dies for sex discrimination, by:
color, religion and national origin.
1. striking the Act’s factor other than sex defense
During the struggle to pass the Civil Rights Act in the and inserting “a bona fide factor other than sex, such
House of Representatives, the House Rules Committee as education, training, or experience;”
Chairman, Howard Smith, in an effort to defeat the Act,
2. adding compensatory and punitive damages to
moved to add the word “sex” between “religion” and the Act, and
3. amending Title VII, allowing the EEOC to collect payroll data.21
The PFA has been before Congress four times, the
last time on September 15, 2014.22 It has not been
passed to date.
Meanwhile, in April 2014, President Obama
signed an executive order encouraging pay transparency by prohibiting federal contractors from discharging or discriminating against job applicants and
employees for discussing, disclosing or inquiring
about compensation.23 The Department of Labor’s
Office of Federal Contract Compliance Programs has
proposed a new regulation to this effect.24
Does the recent groundswell of popular support
for equal pay for women indicate that Congress will
act soon to strengthen the Act? Will it take another
50 years to close the gender gap?
Lou Graziano, Adjunct Professor at St. John’s University, was
a Trial Attorney at the EEOC before retiring in 2013. Rhoda
Andors is an Associate at the Law Offices of Ira S. Newman,
an NCBA Publications Committee member and a Princeton
University alumna. Mr. Graziano was one of the attorneys
assigned to the 2012 EEOC v. Port Authority case, in the
Southern District of New York. Since retiring he has not participated in the Second Circuit appeal, decided September 29,
2014.
1. 29 USCS § 206(d); U.S.Census Bureau, Current Population
Reports, Income and Poverty in the United States: 2013, 10, fig.
2: Female-To-Male Earnings Ratio and Median Earnings of
Full-Time, Year-Round Workers…By Sex: 1960-2014
(September 2014).
2. Stephanie Francis Ward, How Much Less Do Women Lawyers
and Judges Earn Than Men? ABA Journal (Apr. 23, 2014).
3. Nat’l Women’s Law Ctr. (NWLC), Fact Sheet, The Wage Gap
Over Time (Oct. 2014).
4. 29 USC § 206 (d)(1)(emphasis supplied.).
5. Belfi v. Prendergast, 191 F.3d 129, 135-136 (2d Cir. 1999).
6. Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir. 2001).
7. Deborah Thompson Eisenberg, Shattering the Equal Pay Act’s
Glass Ceiling, 63 SMU L. Rev. *17, *57 (Winter 2010).
8. Lorraine Mirabella, Five Questions for Equal Pay Advocate
Deborah Eisenberg, University of Maryland, Apr. 12, 2014;
Deborah Thompson Eisenberg, Shattering the Equal Pay Glass
Ceiling, 63 SMU L. Rev. 17, 19, 23 (Winter 2010).
9. 29 USC § 206(d).
10. Nat’l Women’s Law Ctr., 50 Years and Counting: The
Unfinished Business of Achieving Women’s Fair Pay, 11 (2013).
11. Charles and Barbara Whalen, The Longest Debate: A
Legislative History of the Civil Rights Movement, 115-117, passim (1985).
12. 42 USC 2000e-2(h).
13. County of Washington v. Gunther, 452 U.S. 161 (1981).
14. EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 250 (2d Cir.
2014).
15. Id., at 258-259.
16. Eisenberg, supra note 7, at *59.
17. Ottaviani v. State University of New York, 679 F. Supp. 288,
338 (S.D.N.Y.1988).
18. Engelmann v. National Broadcasting Co., No. 94 Civ. 5616,
1996 U.S. Dist. LEXIS 1865 at *27 (S.D.N.Y. Feb. 21, 1996).
19. Ottaviani, 679 F. Supp. at 338 (S.D.N.Y.1988).
20. Eisenberg, supra note 7, at *33.
21. Paycheck Fairness Act, S.R. 2199, 113th Cong. (2d Sess. 2014).
22. https://www.govtrack.us/search?q=Paycheck+ Fairness+Act.
23. Exec. Order No. 13,665, 79 Fed. Reg. 20749 (Fri., Apr.11, 2014).
24. Government Contractors, Prohibitions Against Pay Secrecy
Policies and Actions, 79 Fed. Reg. 55,712 (Sept. 17, 2014).
Nassau Lawyer
n
January 2015
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Nassau Lawyer
2014 Holiday Staff Fund
A special thank you to the following individuals and firms for
generously donating to the NCBA’s Annual Holiday Staff Fund this year.
Steven J. Eisman
Jerold E. Levine
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Gassman Baiamonte Betts, PC
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NY Family Law American Inn of Court
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George M. Kaplan
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NCBA Committee Meeting Calendar • January 15 - February 14, 2015
Questions? Contact Stephanie Pagano (516) 747-4070 spagano@nassaubar.org
Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.
Municipal Law Committee
12:30 p.m.
Liora Ben-Sorek, Lisa Cairo
Attorney/Accountants
12:30 p.m.
Neil Katz
Labor & Employment
12:30 p.m.
Jeffrey Schlossberg
Surrogatges Court Estates & Trust
5:30 p.m.
Lori Sullivan, Sally Donahue
Real Property Law
5:30 p.m.
Kevin McDonough, Mary Mongioi
Women In The Law
12:30 p.m.
Barbara Gervase, Amy Hsu
January 22, 2015
February 3, 2015
Publications
12:45 p.m.
Christopher DelliCarpini
Senior Attorney
12:30 p.m.
Charles E. Lapp, III
Ethics
5:30 p.m.
Omid Zareh
Publications
12:45 p.m.
Christopher DelliCarpini
January 16, 2015
Elder Law, Social Services &
Health Advocacy
12:30 p.m.
Moriah Adamo, Paul Hyl
February 4, 2015
January 15, 2015
Education Law
12:30 p.m.
Douglas Libby
Civil Rights
12:30 p.m.
Jason Starr
Worker’s Compensation
8:00 a.m.
Mark Polsky
January 20, 2015
Veterans & Military Law
12:30 p.m.
Edward Cunningham
Federal Courts
12:30 p.m.
Gregory Zucker
January 27, 2015
February 11, 2015
Criminal Court Law & Procedure
12:30 p.m.
Brian Griffin
Family Court Law & Procedure
5:30 p.m.
Mark Green
General/Solo/Small Firm
12:30 p.m.
Gary Port
February 5, 2015
Hospital & Health Law
8:30 a.m.
Geoffrey Kaiser, Kevin Mulry
Associaton Membership
12:45 p.m.
Marc Gann, Geoffrey Prime
Commercial Litigation
12:30 p.m.
Kevin Schlosser
District Court
12:30 p.m.
Mitchell Hirsch
Community Relations & Public Education
12:45 p.m.
Adam D’Antonio
January 21, 2015
January 28, 2015
February 10, 2015
Tax Law
12:30 p.m.
Noelle Gieger
Appellate Practice
12:30 p.m.
Richard Langone
Technology & Practice Management
8:00 a.m.
John Whiteman, III
Alternative Dispute Resolution
5:30 p.m.
Elizabeth Donlon
Matrimonial Law
5:30 p.m.
John DiMascio, Jr.
* Committee Chairs and Co-Chairs denoted in Italic.
Nassau Lawyer
n
January 2015
n
15
Asset Protection Planning with Domestic
and Foreign Asset Protection Trusts
In an increasingly litigious society, asset protection
planning has taken on great significance. Effective
asset protection is placing one’s assets beyond the
reach of future potential creditors while maintaining
a beneficial interest in the assets.
Most attorneys are familiar with basic asset protection techniques such as trusts, business entity
planning, IRAs and life insurance. This article discusses two of the more exotic flavors of asset protection: Domestic Asset Protection Trusts (DAPT) and
Foreign Asset Protection Trusts (FAPT).
Exception Creditors
Nevada is the sole DAPT jurisdiction that has no
exception creditors. Alaska allows divorcing spouses
as exception creditors.4 South Dakota allows divorcing
spouses, alimony, and child support creditors as
exception creditors.5 Delaware allows divorcing spouses, alimony, child support, and preexisting tort exception creditors as exception creditors.6
DAPT Limitation
While it is generally agreed that a DAPT protects
assets of a grantor who is a resident of the DAPT
As a general rule, for the assets of a trust to be pro- state, it is still uncertain whether a DAPT will protect
the assets of a grantor who is not a resident
tected from an individual’s creditors, the
of the DAPT state.
person who gratuitously transfers assets to
For example, assume that a New York
a trust (referred to as the grantor or settlor)
resident sets up a DAPT in Delaware and
cannot also be a discretionary beneficiary of
transfers cash and marketable securities to
the trust. Otherwise, the assets in the trust
it. Further assume that the New York resiare subject to the grantor’s creditors.
dent has a creditor who obtains a judgment
However, several jurisdictions in the
from
a New York court against the New
United States have enacted laws that allow
York resident. It remains to be seen whether
a grantor to also be a discretionary benefia Delaware court will grant full-faith and
ciary of a trust while protecting from the
credit to the New York court judgment.
grantor’s creditors, any assets gifted by the
Some practitioners contend that a DAPT
grantor to the trust.
should not be used by a non-resident due to
A DAPT is an irrevocable trust estabthe uncertainties involved. However, a key
K. Eli Akhavan
lished under the special laws of one of the
component of asset protection planning is to
jurisdictions that allow the settlor of the
impose
layers
between the creditor and the debtor in
trust to be a discretionary beneficiary and yet still protect the trust assets from the settlor’s creditors. There order to compel the creditor to either retreat or at
are currently 15 such jurisdictions. If a trust with the least settle the litigation. Accordingly, a DAPT should
settlor as beneficiary were to be set up under the laws be part of an asset protection planner’s toolbox.
of a non-DAPT jurisdiction such as New York, the genForeign Asset Protection Trusts
eral rule is that the settlor’s creditors can access as
A FAPT is a trust that is set up in an offshore jurismuch of the trust as can be distributed to the grantor
diction which has trust legislation providing for subby the trust.
DAPT jurisdictions generally have a statute of lim- stantial protection against creditors of the grantor.
itations period marking the duration of time neces- One of the greatest advantages of the FAPT is the fact
sary between the date of transfer to the DAPT and the that potential creditors must avail themselves of a fordate upon which the transferred asset will be protect- eign legal system rather than US laws.
FAPTs offer three advantages that a DAPT may not.
ed from the settlor’s creditors. The number of years
First,
a FAPT is generally set up in a foreign jurisdicrequired from the time of transfer until the assets are
protected varies from state to state. Furthermore, tion that does not recognize US judgments. More often
jurisdictions can differentiate between preexisting than not, a creditor confronts prohibitively expensive
creditors versus non-preexisting creditors. There is legal fees associated with commencing litigation in an
generally a tolling of the statute of limitations period offshore jurisdiction. Creditors will hesitate about havwith respect to preexisting creditors in order to protect ing to deal with a foreign legal system. This unfamiliarity, plus the additional expenses and costs, and the
those creditors.
All of the DAPT jurisdictions, except for Nevada, entire uncertainty with respect to the process, adds a
also have certain “exception creditor” statutes. These substantial element of protection to the FAPT.
Second, most offshore jurisdictions impose the burstatutes allow certain classes of creditors to place
claims on the trust assets even if barred by a statute den of proof in challenging asset transfers on the credof limitations from accessing the DAPT assets. itor and not on the debtor. Many of these foreign jurisException creditor classes include divorcing spouses, dictions also impose a higher standard of proof upon
alimony claimants, child support claimants and tort plaintiffs such as the “beyond the reasonable doubt”
standard in contrast to the US standard of “preponclaimants.
derance of the evidence.”
Leading DAPT Jurisdictions
Third, many jurisdictions establish a statute of limThe most popular DAPT jurisdictions are Nevada, itations for challenging asset transfers to a FAPT that
South Dakota, Alaska, and Delaware.1 There are sig- begins to run on the date of transfer. This is in connificant differences among these states with respect to trast to US law where the statute may begin to run
the date the transfer is “discovered” by the grantor’s
their DAPT laws.
creditor. Additionally, the statute of limitations of
Statute of Limitations
most FAPT jurisdictions is much shorter than the typAlaska and Delaware both protect DAPT assets
after four years from the date of transfer with respect
to non-preexisting creditors.2 With respect to preexisting creditors, Alaska and Delaware both have
statutes protecting DAPT assets after the greater of
four years from the date of transfer to the trust or one
year from the date the creditor discovered or should
have discovered the transfer to the trust.
Compared to Alaska and Delaware, Nevada and
South Dakota provide for a shorter time period to
obtain protection from creditors. Nevada and South
Dakota both have statutes protecting DAPT assets
after only two years from the date of transfer to the
trust with respect to non-preexisting creditors.3 With
respect to preexisting creditors, Nevada and South
Dakota protect DAPT assets after the greater of two
years from the date of transfer to the trust or six
months from the date the preexisting creditor discovered, or should have discovered, the transfer to the
trust.
Trusts as Asset Protection Vehicles
ical four year statute found under US law.
FAPT Jurisdictions
Leading FAPT jurisdictions include the Bahamas,
Cook Islands and Belize. Belize offers a nonexistent
fraudulent transfer limitations period.7 Cook Islands
provides benefits such as allowing a grantor to be a beneficiary of a trust8 and to retain certain elements of control over a trust. Other advantages of a Cook Islands
trust is that it allows a fraudulent transfer claim by a
creditor of only 1 year from the date of the transfer.9
Bahamian trusts are also attractive because they
only have a 2 year statutory limitation on transfers.10
US Tax Consequences of a FAPT
Generally speaking, the establishment of the offshore asset protection plan will not result in adverse
tax consequences. However, the grantor and/or the
beneficiaries may have to file various informational
forms with the IRS. Additionally, depending on the
type of trust, certain estate and gift tax benefits may
be obtained.
Offshore Planning Structure
For clients with heightened asset protection needs,
a possible offshore strategy would be for the client to
establish a FAPT with a foreign trustee. The FAPT
would then establish an offshore limited liability company (a Nevis LLC serves as an attraction option)
which would be entirely owned by the FAPT.
Depending on the circumstances, the client can be
the LLC’s manager with direct control over bank and
brokerage accounts. In the event of a crisis, the client
would resign as a manager and appoint an independent management company as successor manager.
There are many permutations to this strategy that can
be worked out with a client’s professional advisors.
What Asset Protection Cannot Do
Domestic and foreign asset protection planning is
not a panacea for all debtor ills. Asset protection does
not do the following:
1. Assist a client in escaping from current or reasonably foreseeable future creditors. These creditors
can generally reach assets in trusts under a fraudulent conveyance theory.
2. Reduce or eliminate U.S. income tax liability.
U.S. citizens must report and pay any applicable taxes
on their worldwide income.
3. Protect real estate that is not “situated in a protected jurisdiction.
4. Absolve a client from his or her obligation to
report assets if mandated by a court in the United
States. Domestic and foreign asset protection planning may provide some layer of privacy, but do not
offer complete secrecy.
As always, it is important to consult with a professional in this area to avoid issues such as fraudulent
conveyance, US criminal tax liabilities and contempt
of court.
Conclusion
The litigation proliferation behooves high risk professionals such as attorneys and physicians, as well as successful entrepreneurs, corporate executives, real estate
developers and investors to seriously consider asset protection planning. Despite advances in the U.S. legal system, we all know too well that justice is not always
served. For individuals and families seeking to reduce
their liability exposure, domestic and foreign asset protection planning may be very effective alternatives.
K. Eli Akhavan, a Special Counsel with Cooperman Lester
Miller LLP, specializing in asset protection and estate and tax
planning for domestic and international clients, is an honors
graduate of Columbia University and obtained his J.D. and
Masters in Tax Law degrees from the NYU School of Law.
1. See generally Steven J. Oshins, Wealth Counsel Quarterly (Jan. 2013).
2. See 12 Del. C. §§ 3570--3576; Alaska Stat. § 34.40.0110.
3. Nev. Rev. Stat. §§ 166.010--166.170; S.D. Codified Laws §§ 5516-1, 55-16-17.
4. Nev. Rev. Stat. §166.0401(1)(b).
5. S.D. Codified Laws §§ 55-16-1--55-16-17.
6. 12 Del. C. § 3573 (2).
7. Trusts Act § 7(6) (1992) (Belize).
8. International Trusts Act 1984, § 13F (Cook Is.).
9. International Trusts Act 1984 §13B(Cook Is.)
10. Fraudulent Dispositions Act of 1991, § 4 (Bah.)
n
January 2015
INTERNS ...
16
n
Nassau Lawyer
tion, from using their power to demand
sex from subordinates in exchange for a
favorable work benefit.20 Interns, likely
younger and less mature than paid
employees, and eager to impress to gain
a recommendation or a job, are unprotected from supervisors or paid employees who may take advantage of such
vulnerabilities.
Reacting to the decision, in March
2014, New York City amended its
Human Rights Law to include protection for unpaid interns. The amendment defines interns as:
an individual who performs work for
an employer on a temporary basis
whose work: (a) provides training or
supplements training given in an
educational environment such that
the employability of the individual
performing the work may be
enhanced; (b) provides experience for
the benefit of the individual performing the work; and (c) is performed
under the close supervision of existing staff. The term shall include such
individuals without regard to
whether the employer pays them a
salary or wage.22
Following the publicity generated by
Wang and the NYCHRL amendments,
New York State soon followed. On July
22, 2014, the State amended its Human
Rights Laws to extend to interns, the
same protections afforded to paid
employees. The State defines interns
as:
a person who performs work for an
employer for the purpose of training
under the following circumstances:
(A) the employer is not committed to
hire the person performing the work
at the conclusion of the training period; (B) the employer and the person
performing the work agree that the
person performing the work is not
entitled to wages for the work performed; and (C) the work performed:
(1) provides or supplements training
NLRA ...
Examples of Improper Social
Media Policy Language
The following language has been
found to be violative of the NLRA:
If you identify yourself as an associate of the Company and publish
any work-related information
online, you must use this disclaimer: “The postings on this site
are my own and do not necessary
represent the postings, strategies
or opinions of The Kroger Co. family of stores.”19
The problem here, the Board
found, is that the policy language
implicates Section 7 protected activity.20 Additionally, the Board found
that the language unduly burdens
online statements by obligating the
employee to state the disclaimer in
conjunction with the posting of any
matters covered by the policy.21
Similar language in Three D, LLC
d/b/a Triple Play Sports Bar and
Grille was also found objectionable.22
When online, do not engage in
behavior that would be inappro-
that may enhance the employability
of the intern; (2) provides experience
for the benefit of the person performing the work; (3) does not displace
regular employees; and (4) is performed under the close supervision of
existing staff.22
More Work to Be Done?
Although the law is a well-intentioned
effort to expand workplace rights to
everyone in the workplace – paid and
unpaid – it is likely to leave both employer and employee advocates unhappy.
On the employer side, the expansion
creates a greater risk of employment
related litigation. Employers should be
sure to provide interns with their antidiscrimination policy and to include
interns in anti-discrimination training.23 Such trainings and policies
should be revised to ensure employees
and supervisors understand that the
anti-discrimination policy applies
equally to interns. Further, employers
should instruct their supervisors and
managers, particularly those with hiring, firing, and disciplinary authority,
that employment decisions for interns
should be treated no differently than
paid employees; meaning such decisions cannot be made for unlawful reasons. With anti-discrimination mechanisms already in place for most employers (or which should be in place for the
rest), the new amendments should not
create panic.
On the employee side, the amendments may cause concern that a portion
of the workplace likely remains unprotected. The essence of both the State
and City amendments is that they
require the purported intern to be in
training and that the internship provide a benefit to the intern and little or
no benefit to the employer. Indeed, the
Fox Searchlight court held that the
plaintiffs in that case displaced paid
employees, received benefits which
were only incidental to working in an
office, and did not acquire any new
skills.24 In other words, the “interns”
received little or no benefit. On the
other hand, the employer gained the
benefit of the plaintiffs’ unpaid work on
essential functions.
The Wang court concluded that
based on such factors, the interns were
not really in a training program, but
were instead acting more like employees and should have been paid.25
Accordingly, if the Fox Searchlight
plaintiffs faced sexual harassment,
they would likely not be covered by the
amendments and would remain vulnerable to discrimination. Thus, the misclassification of employees as unpaid
interns perpetuates the existence of an
unprotected segment of the workplace.
New York State and New York City
lawmakers acted swiftly to expand
workplace rights after unpaid intern
Lihuan Wang exposed a gaping hole.
The hole may not be closed entirely, but
there can be little question that the law
is now more encompassing than before
the Wang decision.
Matthew Weinick, partner with Famighetti &
Weinick, PLLC in Melville, represents employees in employment disputes, and is a
member of the NCBA Labor and Employment
Law Committee.
priate at work – including, but not
limited to, disparagement of the
Company’s (or competitors’) products, services, executive leadership, employees, strategy and
business prospects.23
The Board found this language to
be an “unlawfully overbroad restriction.”24 The Board further found
that this provision would chill protected Section 7 activities:
Initiating or participating in distribution of chain letters, sending
communications or positing information, on or off duty, or using
personal computers in any manner that may adversely affect company business interests or reputation [is prohibited].25
Discipline for Violations of Policy
It is important to note that
employers may not discipline
employees for engaging in protected
activity. In the event that “the very
conduct for which employees are disciplined is itself protected concerted
activity,” then the discipline violates
Section 8(a)(1) regardless of the
employer’s motive or a showing of
animus.26 Additionally, where an
employee violates an employment
policy and is thereafter disciplined,
the discipline is unlawful if the
employee “violated the rule by (1)
engaging in protected conduct or (2)
engaging in conduct that otherwise
implicates the concerns underlying
Section 7 of the Act.”27
Takeaways for Employers
It appears as though the NLRB
will continue to focus on improper
employment policies regarding social
media. It also appears that the
NLRB will continue to expand protections under the Act as they have
been. It has also become increasingly
obvious that while an employer has a
legitimate interest in preventing the
disparagement of its products or
services as well as protecting its reputation from defamation, the Board
will balance Section 7 rights against
these interests and employers now
have a higher burden.28 Moreover,
employers should not take disciplinary action against an employee for
use of social media before careful consideration and consultation with
legal counsel.
Cynthia A. Augello is a Partner in the
Commercial Litigation Department of
Cullen and Dykman LLP.
1. Three D, LLC d/b/a Triple Play Sports
Bar and Grille, 361 N.L.R.B. No. 31,
1. Wang v. Phoenix Satellite Television US, Inc.,
976 F.Supp.2d at 529 (S.D.N.Y. 2013). The law
was already well settled that Title VII, the
federal anti-workplace discrimination statute,
and the NYSHRL, do not protect unpaid
interns. Id. (citing O’Connor v. Davis, 126
F.3d 112, 115-16) (2d Cir. 1997); Sweeney v.
Bd. of Educ. of Rocky Point Union Free Sch.
Dist., 112 A.D.2d 240 (2d Dept. 1985)).
2. Id.
3. Id. Wang also appeared on camera, on occasion. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Wang asserted diversity jurisdiction. She also
asserted failure to hire claims. The disposition
of such claims is unrelated to the issue presented in this article and is not addressed herein.
10. Id. (quoting N.Y.C. Admin. Code § 8107(1)(a)).
11. Id.
12. Id. at 533 (citations omitted).
13. Id.
14. Id. (citing State Division of Human Rights on
Complaint of Emrich v. GTE Corp., 109
A.D.2d 1082, 1083 (4th Dept. 1985)).
15. Id.
16. 126 F.3d at 115.
17. Notably, the Court did not address the finding
by Judge Pauley made just four months earlier in which he determined that an unpaid
intern should have been paid by the employer.
Glatt v. Fox Searchlight Pictures, Inc., No. 11
Civ. 6784, 2013 WL 5405696 (S.D.N.Y. Sept.
17, 2013); Contra Wang v. Hearst Corp., 293
F.R.D. 489 (S.D.N.Y. 2013). Assuming Judge
Pauley’s decision is correct, the threshold
question of remuneration should not end the
inquiry. Rather, if the remuneration question
is answered in the negative, the next inquiry
should be whether the intern should have
been paid in the first place, because the intern
was really an employee.
18. Id.
19. Crush-Crawford v. Adchem Corp., 271 F.3d
352 (2d Cir. 2001); Davis v. Phoenix Ancient
Art, SA, 2013 N.Y. Slip Op. 50613 (N.Y. Sup.
Ct. 2013) (kissing and touching in hotel room
and sex based comments).
20. Jin v. Metropolitan Life Ins. Co., 310 F.3d 84,
91 (2d Cir. 2002).
21. N.Y.C. Law Number 2014/2009.
22. Chapter 97 of the laws of 2014.
23. New York City employers should remain
mindful that the Faragher-Ellerth defense
does not apply to New York City Human
Rights Law claims. Zakrzewska v. The New
School, 620 F.3d 168, 169 (2d Cir. 2010) (citing Zakrzewska v. The New School, 14 N.Y.3d
469 (2010)).
24. Glatt, 2013 WL 5405696.
25. Id.
2014-15 NLRB Dec. ¶ 15855 (Aug. 22,
2014).
2. Id.
3. See id.
4. Id.
5. Id.
6. See Three D, LLC d/b/a Triple Play Sports
Bar and Grille, 361 N.L.R.B.No. 31.
7. 29 U.S.C. § 157.
8. The Kroger Co. of Michigan, Case No., 07CA-098566, 2014 WL 1620730, at *1 (Apr.
22, 2014).
9. Central Hardware Co. v. N.L.R.B., 407 U.S.
539, 542 (1972).
10. Kroger, 2014 WL 1620730 at *1.
11. 29 U.S.C. § 157.
12. 29 U.S.C. § 158.
13. Lafayette Park Hotel, 326 N.L.R.B. 824,
825 (1998), enforced, 203 F.3d 52 (D.C.
Cir. 1999).
14. Lutheran Heritage Village-Livonia, 343
N.L.R.B. 646, 647 (2004).
15. Id.
16. Kroger, 2014 WL 1620730 at *1.
17. See id.
18. Lafayette Park Hotel, 326 NLRB at 825.
19. The Kroger Co. of Michigan, 2014 WL
1620730, at *1.
20. Id.
21. Id.
22. Three D, 361 N.L.R.B. No. 31.
23. Kroger, 2014 WL 1620730 at *1.
24. Id.
25. Professional Elec. Contractors of
Connecticut, Inc., Case No. 34-CA-071532,
2014 WL 2547548, at *1 (June 4, 2014).
26. Burnup& Sims, Inc., 256 N.L.R.B. 965,
976 (1981).
27. Continental Group, Inc., 357 N.L.R.B. No.
39, 2010-11 NLRB Dec. ¶ 15454 (Aug. 11,
2011).
28. Three D, 361 N.L.R.B. No. 31.
Nassau Lawyer
n
January 2015
n
17
NCBA New Members
PRO BONO ATTORNEY OF THE MONTH
We welcome the following
new members
Attorneys
By GREG T. FISHKIN
Nathan Mendenhall
This month, the Nassau County Bar Association is
proud to acknowledge Nathan Mendenhall, Esq. as the
Pro Bono Attorney of the Month for his dedication to the
Mortgage Foreclosure Project. Mr. Mendenhall volunteers
for Clinics at the Nassau County Bar Association as well
as at Settlement Conferences in Nassau Supreme Court.
For the past year and a half, Mr. Mendenhall has been
employed by Cabanillas & Associates, PC, where he holds
the title of Associate Attorney in their Litigation
Department. He earned his J.D. from the University of
Tulsa College of Law, and was admitted to practice in the
State of New York in 2012.
Mr. Mendenhall specializes in residential foreclosure
defense. His expertise in the area rivals that of the most
prominent attorneys in the region. He generously contributes his time and expertise on a regular basis, while
also having the patience and compassion to explain the
process to homeowners so they do not feel overwhelmed
by what they’re going through.
Mr. Mendenhall found himself gravitating to the free
help table in the Foreclosure Part of Nassau Supreme
Court before he even knew about the Mortgage Foreclosure
Project. “It means the world to me to be able to take the
knowledge I’ve accumulated and share it with folks,” he
said. “Many times just giving them a sense of the foreclosure process and what to expect, as well as providing them
with options, gives them the peace of mind they deserve.”
The majority of Mr. Mendenhall’s volunteer work is
done through the Mortgage Foreclosure Project. “I appear
often on cases in the five boroughs and in Counties
throughout the region, and the Nassau County Bar
Association is second to none in the assistance it offers
folks facing foreclosure of their homes,” he said. He has
been available on short notice despite a demanding schedule and consistently goes above and beyond to provide
excellent assistance to those with whom he consults.
When asked to describe his pro bono experience, he
stated “I, as well as many other attorneys, have benefitted from the experience of volunteering through the
Mortgage Foreclosure Project. Furthermore, I know that
the people of Nassau County have greatly benefited by
the free legal services provided to them.”
It is harder than ever for young attorneys to donate their
time for pro bono services. Those fortunate enough to be
employed are facing strict schedules, many to pay off hefty
student loans, and those without the experience need to be
trained. Mr. Mendenhall has capitalized on the opportunity
presented by the Mortgage Foreclosure Project, learning
from the experience of his elders while also imparting
knowledge onto those who are first getting involved in the
area. He is one of a select few who is able to balance his
many obligations, and it is for his charitable spirit that we
salute him as our Pro Bono Attorney of the Month.
Zeena Abdi Collins McDonald & Gann
Martha Dalia Adames The Safe Center LI
Susan J. Cameron Levy Ratner, P.C.
Michael David Chechanover Rosado,
Chechanover, Apat & Dudley, LLP-LI
David Ian Gise Westerman Ball Ederer
Miller Zucker & Sharfstein
Jeremy Brett Honig Rivkin Radler LLP
Rakshita Koirala Mulholland Minion
Davey McNiff & Beyrer
Dorothy R. Renz Duffy & Duffy, PLLC
Kenneth Roldan
Barbara C. Schwartzbaum
Jason Smith Meltzer Lippe Goldstein &
Breitstone LLP
Kellie Stabile
Students
Thomas A. Barraco
Tesla Carrasquillo
Jennifer E. Flores
Marc Gottlieb
Greg T. Fishkin, Esq. is the NCBA Sandy Relief/Settlement
Conference Coordinator. Attorneys interested in volunteering for
the Mortgage Foreclosure Project or have any questions can call
Greg T. Fishkin at the Nassau County Bar Association (516) 747-4070
or e-mail him at gfishkin@nassaubar.org.
We Make
Bonding Simple
Experience,
Competence,
Results.
Call us at
1-877-266-3798
or visit us at www.jaspersurety.com
In Memoriam
Norman H. Dachs, Esq.
NCBA Sustaining Members
2014 - 2015
Martin P. Abruzzo
Mark E. Alter
Mark A. Annunziata
Ernest T. Bartol
Jack A. Bennardo
David A. Bythewood
Neil R. Cahn
Ralph A. Catalano
Alan W. Clark
Richard D. Collins
James C. Daly
Willard H. DaSilva
John P. DiMascio
Thomas P. Dougherty
Steven J. Eisman
Charo Ezdrin
Edmond D. Farrell
Russell C. Friedman
Domingo R. Gallardo
Marc C. Gann
Eugene S. Ginsberg
Frank Giorgio, Jr.
John J. Giuffre
Robert E. Grey
Hon. Frank A. Gulotta, Jr.
Andrew J. Hirschhorn
Alan B. Hodish
Carol M. Hoffman
Elena Karabatos
Hon. Susan T. Kluewer
Martha Krisel
Lawrence M. Lally
Donald F. Leistman
Jonathan C. Lerner
Steven G. Leventhal
Hon. Roy S. Mahon
Shalom S. Maidenbaum
Peter J. Mancuso
Michael R. Martone
Robert A. McDonald
John P. McEntee
Christopher T. McGrath
Anthony J. Montiglio
Neil J. Moritt
Linda G. Nanos
Hon. Michael L. Orenstein
Gary Petropoulos
Susan Katz Richman
Leonard L. Rivkin
Stephen W. Schlissel
Marc H. Schneider
Jane P. Shrenkel
Hon. Peter B. Skelos
Ira S. Slavit
Hon. Arthur D. Spatt
Sanford Strenger
M. David Tell
Kathleen Wright
18
n
January 2015
n
Nassau Lawyer
WE CARE
We Acknowledge, with Thanks, Contributions to the WE CARE Fund
Donors
In Honor Of
Steven J. Eisman
Meryl & Stephen Gassman
Hon. Robin M. Kent
Barbara H. Kopman
Donors
the engagement of Kristin McGrath, daughter of
Christopher T. McGrath
the engagement of Alexandra Eisman, daughter of
Steven J. Eisman
Matthew Kent
Kenneth Koopersmith’s Retirement
Kelli McGrath, daughter of Christopher T. McGrath, on passing
the NYS Bar Exam
the engagement of Kristin McGrath, daughter of Christopher
T. McGrath
the wedding of Leah Palley-Engel, daughter of Hon. Andrew
Engel & Sheryl Palley-Engel to Matthew Green
Hon. Leonard B. Austin
Hon. Pauline Balkin
Hon. Ruth C. Balkin
Hon. Angelo Delligatti
Hon. Frank & Joanne Gulotta Jr.
For Speedy Recovery
Karen Bodner
Steven J. Eisman & Samuel J. Ferrara
Barry J. Fisher
Mel Harris
Donors
In Memory Of
Gale D. Berg
Marilyn & Howard Brill
Franchina & Giordano
Hon. John G. Marks
Hon. Andrea Phoenix
Fran Stuckelman & Alan M. Snowe
In Memory of Albert Feuerstein, Husband of Hon. Sandra Feuerstein
Ida Haus, Mother-In-Law of Jeffrey Seigel
Phyllis Weisel, mother of Hon. Robert Weisel
Joseph Ezratty, father of Jaime & Ira Ezratty
Veronica Bartels
George Nager
Leonard Florescue
Elizabeth Leventhal, mother of Hon. John Leventhal,
Barbara Friedman, & Vivian Landau
Dennis Baydar
Mr. & Mrs. Michael Baydar
Grace D. Moran
Hon. Michael Solomon
Hon. Elaine J. Stack
In Memory of Margaret Piazza, mother of Robert Piazza
Hon. Kenneth S. Diamond
Hon. John G. Marks
In Memory of Vincent Stempel Sr., father of Vincent F. Stempel, Jr.
Hon. Elaine J. Stack
In Memory of Norman H. Dachs, father of Jonathan A. Dachs
Stephen J. Gassman
Hon. Denise Sher
Hon. Michael Solomon
Checks made payable to Nassau Bar Foundation-WE CARE
Contributions may be made by mail:
It’s Heartfelt to support WE C
CA
ARE !
WE CARE
Through its charitable work
WE CARE distributed grants to
numerous organizations
throughout Nassau County helping
children, the elderly and
others in need. Here is a small
sample of the many organizations
that received assistance this fall.
27 Annual Children’s Fest
stival
th
Hosstted by the WE CARE Fund of the
Nassau County Bar Association
Friday, February 20th, 2015
at Domus •12 pm - 2 pm
WE CARE Co-Chairs Peter Levy and
Kathleen Wright present a check to
Susan Samaroo (center) from the
Maurer Foundation.
vent, m
ade ppossible
ossible by
by your
your contributions,
contributions,
spectacular eevent,
This
T
his spectacular
made
eserving cchildren
hildren ttoo a ffun-filled
un-fiilled afternoon
afternoon
treats ddeserving
treats
including hhot
clowns, games,
games, gifts
gifts
ot ddogs,
ogs, iice-cream,
ce-cream, D
J, clowns,
including
DJ,
aand
nd oother
ther eentertainment!
ntertainment!
WE CARE Board member and
NCBA Past President Marc Gann
presents a check to Leila Noor from
the Port Washington Parent
Resource Center.
P
Please
lease oopen
pen yyour
our hhearts
earts aand
nd wwallets
allets ffor
or W
WEE C
CARE:
ARE:
Platinum
Platinum H
Heart
eart $$350
350
Gold Heart
Heart $200
$200
Gold
S
Silver
ilver Heart
Heart $100
$100
Caring Heart
Heart $50
$50
Caring
(suggested
(suggggested minimum
minimum donation)
donation)
W
WE
EC
CARE
ARE H
Hearts
earts
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ax d
eductible.
Contributions
are
deductible.
Make check
check p
ayable tto
oW
E CARE
CARE Fund
Fund
Make
payable
WE
Amt
Amt of
of Donation
Donation $__________
$__________
M
ail tto:
o:
Mail
Nassau County
County Bar
Bar Association
Association
Nassau
Attn: Perri
Perri Boodram
Boodram
Attn:
15th & West
West Streets,
Streets, Mineola,
Mineola, NY
NY 11501
11501
15th
Address
Address
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NCBA Attn: WE CARE
15th & West Streets
Mineola, NY 11501
WE CARE Board member and NCBA
Past President Susan Katz Richman
presents a check to Katie McGowan
and Annie Follansbee from Camp
Horse Ability with WE CARE CoChairs Peter Levy and Kathleen
Wright.
WE CARE Co-Chairs Peter Levy and
Kathleen Wright present a check to
Nicole Vaughn (center) from the Eden
II School for Autistic Children.
WE CARE Co-Chairs Peter Levy
and
Kathleen Wright present a check to Jamison
Skala (center) from Big Brothers Big Sisters.
BROWNING-FERRIS ...
WE CARE
We Acknowledge, with Thanks,
Contributions to the WE CARE Fund
The Matrimonial Law Committee made a generous donation to the WE CARE Fund in the
name of each of the following committee members who attended the holiday party.
Jill Altarac
Irene Angelakis
Charlotte Betts
Karen L. Bodner
Andrea M. Brodie
Jacqueline Caputo
Kim M. Ciesinski
Natalie Anne Corriss
Michael C. Daab
Harold F. Damm
Joseph Anthony DeMarco
Michael DiFalco
John P. DiMascio, Jr.
Bryon A. Divins, Jr.
Steven J. Eisman
Alyssa Eisner
Jeanine M. Elbaz
Florence M. Fass
Samuel J. Ferrara
James E. Flood, Jr.
Glenn S. Forstner
Michael L. Fried
Lloyd M. Friedland
Stephen J. Gassman
Alisa Jill Geffner
Barbara Ann Gervase
Michael R. Gionesi
Lisa Golden
James J. Graham, Jr.
Mark A Green
Elena L. Greenberg
Barry J. Gross
Joshua B. Gruner
Cheryl M. Helfer
Joy Jankunas
Elena Karabatos
Deborah A. Kelly
Gail Kenowitz
Carolyn D. Kersch
Arnold S. Klein
Jeffrey Klein
Glenn S. Koopersmith
Joseph C. Lobosco
Michael F. LoFrumento
Joseph H. Lorintz
Cheryl Y. Mallis
Robert C. Mangi
Tomasina Cuda Mastroianni
Donna McCabe
Susan Gail Mintz
Teresa Ombres
Gregory Pandolfo
Christian Aaron Pickney
Michael E. Ratner
Hillary S. Reinharz
Barton R. Resincoff
Joshua L. Reiger
Kieth I. Rieger
Lee Rosenberg
Jennifer Rosenkrantz
Nicole M. Savacchio
Hon. Lawrence M. Schaffer
Jerome A. Scharoff
Andrea Seychett Schear
Lisa R. Schoenfeld
Lisa J. Silverman
Christina L. Sittner
Allison Margaret Small
Daniel H. Smith
Theresa A. Spinillo
Kellie Stabile
Richard N. Tannenbaum
Callan W. Tauster
A. James Temsammani
Adam J. Titterton
Jerry Winter
Anthony Yovino
John M. Zenir
The Matrimonial Law Committee also thanks the Judges and Law Secretaries for their
continuous support.
This would not be made possible without the continued support of the Matrimonial Law
Committee Sponsors and the NCBA Corporate Partners.
Matrimonial Law Sponsors
Brisbane Consulting Group
Cohen Greve & Company CPA, P.C.
Anthony Basile CPA, P.C.
HFM Valuation
Independent Pension Services, Inc.
Klein Liebman & Gresen, LLC
Baker Tilly Virchow Krause, LLP
CBS Coverage Group
Champion Office Suites
North Park Consultants
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Meyers, Harrison & Pia, LLC
NawrockiSmith
RCJ Valuations, Inc.
Reinvention Life Coaching
Rosalia Labate CPA
NCBA Corporate Sponsors
Realtime Reporting Inc.
Serenity Limousine
Wayne Steinberg Real Estate Strategies
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WE CARE
“Dressed to a Tea”
Thursday
March 19th, 2015
not occur in its absence.”9
According to the General Counsel,
this approach would ensure that the
Board would return to its traditional
standard where “industrial realities”
make an entity essential for meaningful
bargaining. In making its case, the
Board analogizes to the way “employer”
is defined by the Federal courts in Title
VII matters, which often utilize a
“hybrid” right to control/economic realities or the traditional joint-employer
standard.10
The General Counsel makes it plainly clear what is at stake. In an economy
where (i) the contingent workforce has
increased steadily, and (ii) franchising is
ever expanding, it is the General
Counsel’s position that these commercial
forms undermine meaningful collective
bargaining and thus negatively impact
union participation.11
Management: A Broader Standard
is No Standard
BFI’s opposition is based on the
argument that the joint-employer standard is, in reality, no standard at all
and thus fails to satisfy due process.
BFI posits that the “standard” proposed
by the Union and the General Counsel
provides no guidance for businesses
about how they can structure their
business operations to provide certainty
that they are, or are not, joint employers under the NLRA.
Using its own version of the “industrial realities” standard, BFI and
Leadpoint point out that business relationships typically involve agreements
that indirectly, but necessarily, impact
the terms and conditions of employment, providing as an example that
service contracts “often involve significant control by the customer over the
service provider and, when services are
performed on the customer’s property,
the amount of control is even greater.”12
Likewise, the same argument can be
applied to franchises, since franchises
succeed not only because the public
wants the products they provide, but
also because of the consistency with
which they provide them. Successful
franchises generally dictate many
things that could impact the employeremployer relationship, such as how to
perform certain tasks, how franchisees
can budget for a successful operation,
and how many work hours are needed to
perform certain tasks.
Moreover, BFI argues that the standard proposed by Local 350 would violate the NLRA by failing to give ordinary
meaning to the term “employee,” which
it contends, citing to Supreme Court
precedent, would lead to the conclusion
that “an employment relationship does
not exist unless the worker is directly
supervised by the putative employer.”13
Finally, BFI argues that adoption of
the new standard would violate the Taft
Hartly Act of 1947, which directed the
Board to apply common law agency principles when interpreting the NLRA provisions.14 Those principles are that jointemployer status requires “a showing
that the employer meaningfully affects
matters relating to the employment relationship such as hiring, firing, discipline,
supervision and direction.”15
Conclusion
While the principle of stare decisis
plays a role in Board decision making,
the Board has demonstrated on several
recent occasions its willingness to chart
a different course.16 Thus, whatever the
Nassau Lawyer
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19
precedent may be, it is unlikely to be a
persuasive factor in the Board’s decision
in Browning-Ferris. The fact is that private union membership has declined
significantly over the past fifty years.
Some argue that unions have
become unnecessary, while others fervently believe that the structure of
today’s business operations has thwarted a worker’s ability to organize and
form collective bargaining units to their
economic detriment. If it is the latter,
then the decision in Browning-Ferris
will send shockwaves through the temporary staffing and franchise industries. One can expect that workers at
establishments such as McDonald’s,
given the opportunity to better their
economic lives by having McDonald’s
USA, LLC on the other side of the bargaining table, as opposed to their relatively small franchise owner, will fervently seek to organize and secure the
right to collectively bargain.
Paul F. Millus, Of Counsel to the firm of
Meyer, Suozzi, English & Klein, P.C., concentrates his practice in employment and commercial litigation. He can be reached at 516592-5933.
1. Nat’l Labor Relations Bd., NLRB Office of the
General Counsel Authorizes Complaints
Against McDonald’s Franchisees and
Determines McDonald’s, USA, LLC is a Joint
Employer, available at http://www.nlrb.gov.
2. Laerco Transportation, 269 NLRB 324 (1984);
TLI, Inc. 271 NLRB 798 (1984).
3. Airborne Freight Co., 338 NLRB 597 (2002).
4. The Entrepreneur’s Source, Franchise Industry
Expected to Grow Faster than Rest of the
Economy in 2014, http://www.entrepreneurssource.com/blog (“Franchises are expected
to add nearly 200,000 new jobs in 2014 ... [and]
will continue to outpace total private sector
employment growth by 0.3 percent. The number
of franchise businesses in 2014 is expected to
increase by 12,915 in 2014, bringing total establishments to 770,368”).
5. Steven Greenhouse, N.Y. Times, The Changing
Face of Temporary Employment, available at
http://www.nytimes.com (“The number of workers
employed through temp agencies has climbed to a
new high – 2.87 million, according to the Bureau
of Labor Statistics, and they represent a record
share of the nation’s work force, 2 percent”).
6. Brief for Petitioner Local 350, Browning-Ferris
Indus. of California, Inc., & Fpr-II, LLC &
Sanitary Truck Drivers & Helpers Local 350,
Int'l Bhd. of Teamsters, available at
http://www.nlrb.gov/case/32-RC-109684.
7. Jewell Smokeless Coal Corp., 170 NLRB 392 (1968).
8. Brief for Petitioner Local 350 at 33, BrowningFerris Indus. of California, Inc., & Fpr-II, LLC
& Sanitary Truck Drivers & Helpers Local 350,
Int’l Bhd. of Teamsters, available at
9. Amicus Brief of the General Counsel at 16–17,
Browning-Ferris Indus. of California, Inc., &
Fpr-II, LLC & Sanitary Truck Drivers &
Helpers Local 350, Int’l Bd. of Teamsters, available at http://www.nlrb.gov/case/32-RC-109684.
10. Lopez v. Johnson, 333 F.3d 959 (9th Cir. 2003);
Bristol v. Bd. of Co. Comm’rs, 312 F.3d 1213
(10th Cir. 2002).
11. The General Counsel noted in its brief that
“some scholars have posited that franchisors
consider an avoidance of unionization ... to be
the ‘prime advantage of franchising.’” Amicus
Brief of the General Counsel at 15, BrowningFerris Indus. of California, Inc., & Fpr-II, LLC
& Sanitary Truck Drivers & Helpers Local
350, Int’l Bhd. of Teamsters, available at
12. Brief for Employer BFI at 16, Browning-Ferris
Indus. of California, Inc., & Fpr-II, LLC &
Sanitary Truck Drivers & Helpers Local 350,
Int’l Bhd. of Teamsters, available at
13. Id. at 18 (citing Allied Chem. & Alkali Workers
of Am., Local Union No. 1 v. Pittsburg Plate
Glass Co., 404 U.S. 157 (1971)).
14. Id. at 21; Taft- Hartley Act, Pub. L. Noo. 80101, 61 Stat. 137 (1947), amending 29 U.S.C.
157 (rejecting the Supreme Court’s decision in
NLRB v. Hearst Publications, 322 U.S. 111
(1944), to the extent that it held that the Court
held that the Board could ignore common law
agency principles in distinguishing employees
form independent contractors).
15. Lacero Trans. & Warehouse, 269 NLRB 324,
325 (1984); TLI, Inc. 271 NLRB 798 (1984).
16. See, e.g., WKYC TV, Inc. and Nat’l Ass’n of
Broadcast Employees and Technicians, Local
42 a/w/ Communications Workers of America,
AFL-CIO, 359 NLRB 30 (2012); American
Baptist Homes of the West, 359 NLRB 46
(2012); Pressroom Cleaners, Inc. and SEIU
Local 32BJ, 361 NLRB 57 (2014).
20
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n
Nassau Lawyer
WORKPLACE ...
that the employer had discharged the
employee for conduct during the course
of protected activity.
Under Burnup, the burden of proof
initially falls on the Board to prove the
employee was engaged in protected
activity and that the employer was
aware of this activity. If the Board
meets this burden, the burden shifts to
the employer to prove that the employer held an honest belief that the
employee had engaged in misconduct
warranting discharge. If the employer
can prove this, the NLRB then must
prove that the employee in fact was not
guilty of the misconduct alleged.
The NLRB found the employee had
engaged in protected activity and that
Hooters was aware of this. As a result,
the burden shifted to Hooters to prove
that it acted with a good-faith belief that
the employee engaged in misconduct.
The Board found Hooters did not act in
good faith due to conflicting statements
from the witnesses which indicated the
employee did not commit the misconduct she was accused of. As a result, the
ALJ found the termination violated the
NLRA and recommended reinstatement
of the employee with backpay.
In the same decision, the ALJ also
invalidated several rules contained in
the employer’s handbook as overly
broad, including rules prohibiting
“insubordination to a manager or lack
of respect and cooperation with fellow
employees or guests” and “disrespect to
our guests including discussing tips,
profanity or negative comments or
actions.” According to the ALJ, the
rules could potentially have a chilling
effect on the exercise of Section 7 rights
by employees.
Starbucks Corporation Decision
Most recently, in June of this year,
the NLRB reaffirmed that Starbucks
violated the NLRA when it terminated
an employee following the employee’s
expletive-filled tirade in a Manhattan
coffee shop.5 The Second Circuit
remanded the case to the Board, finding
the NLRB’s application of the Atlantic
Steel test to be inapplicable in cases
involving the use of obscenities by an
employee in front of customers.
The Starbucks case concerned a
LAW YOU SHOULD KNOW
LAW YOU SHOULD KNOW
LAW YOU SHOULD KNOW
barista at a Manhattan store who was
engaged in various union support activities. Prior to the employee’s discharge,
he had been engaged in a previous incident in which he told an Assistant Store
Manager that “this is bullsh**” and to
“do everything your damn self.”
Six months later, following the
store’s prohibition of the wearing of
union pins by employees while working,
the employee returned to the shop during his off-duty hours. The employee
visited the shop with other off-duty
employees, all wearing union pins to
protest the prohibition. While in the coffee shop, the employee encountered an
off-duty manager from another
Starbucks store.
After being asked a question by the
off-duty manager regarding the union
pin, the employee proceeded to engage
in a heated argument, making such profanity-laden statements as “You can go
f*** yourself, if you want to f*** me up,
go ahead, I’m here.” In response to this
altercation, which occurred on the floor
of the coffee shop with customers present, Starbucks discharged the employee
for the disruption of business.
On remand, the NLRB found that
Starbucks violated Section 8(a)(3) and (1)
of the NLRA by discharging the employee. The Board did not apply Atlantic
Steel, but instead applied the Wright
Line analysis as the case involved mixed
motives for discharge. Under Wright
Line,6 the General Counsel is required to
show by a preponderance of the evidence
that an employee’s protected activities
were a motivating factor in the decision
of the employer to take adverse action
against the employee.
The Board found this element to be
met, resulting in the burden shifting to
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Starbucks to demonstrate that the
same action would have been taken
toward the employee even absent his
protected conduct. The Board found
that Starbucks failed to meet this burden. The fact that other employees who
engaged in comparable misconduct had
not been terminated was the substantial factor relied on by the Board in finding that Starbucks did not prove that it
would have fired the employee absent
his protected activity.
Concluding Thoughts
Decisions like Plaza Auto Center,
Hooters and Starbucks, suggest that
policies and actions by employers that
attempt to promote a culture of civili-
IRC SECTION 125 ...
individuals would either have to maintain multiple health plans at the same
time, or risk a period without any coverage between open enrollments. On
September 18, 2014 the IRS released
Notice 2014-55 addressing this very
issue8 which comes as a welcomed
relief to employees and employers
alike.
Under the new Notice, Section 125
“qualifying events” are now expanded
to include two new situations. The first,
called “Revocation Due to Enrollment
in a Qualified Health Plan,” contemplates an employee currently enrolled
in their Employer’s health plan who
experiences a change in status event,
and decides to drop that plan and enroll
in a Marketplace plan, outside of the
employer’s annual open enrollment
period. Additionally this new qualifying
event applies during the Marketplace’s
annual open enrollment period. Now
this employee would be permitted to
drop the employer plan mid year if they
will be enrolling in a qualified health
plan offered through the Marketplaces.
A second new qualifying event called
‘Revocation Due to Reduction in Hours
of Service’ will now allow an employee
who is enrolled in the employer plan
during a stability period who remains
eligible, but experiences a reduction in
hours, to drop the employer coverage if
they wish to enroll in a different minimum essential coverage plan (this
includes a lower cost plan offered by the
same employer). Previously, a reduction in hours event would require loss
of eligibility in order for the employee to
make a mid year revocation. In both
cases employers may rely on employees’
statements that they intend to enroll in
another qualified health plan, and
employees are not required to offer
proof of such other enrollment. It is
important to note that while these
events allow a medical plan election
change, they do not allow a change for
flexible spending accounts (FSAs).
ty among employees and guests may
face tough scrutiny by the NLRB.
Employers should be aware that conduct that would normally be the basis
for discharge may need to be
rethought in light of the recent NLRB
decisions.
The three decisions indicate the
NLRB’s propensity for protection of
increasingly profane statements and
alarming behavior. Employers who
discipline or terminate employees for
such conduct should do so knowing the
issues may not be as cut and dry as
they may seem at first blush. In fact,
the NLRB might just protect language
that would make the employer blush.
Steven S. Goodman is a General Shareholder
of Jackson Lewis P.C., Melville, and has been
representing companies for thirty-five years in
matters relating to traditional labor, equal
employment opportunity, employment litigation and related matters. Alyssa M. Smilowitz
is an associate at Jackson Lewis P.C., Melville,
and a graduate of Princeton University and
Emory University School of Law.
1. Plaza Auto Center, Inc., 360 NLRB No. 117
(2014).
2. Atlantic Steel, 245 NLRB No. 814 (1979).
3. Hoot Wing LLC & Ontario Wings LLC dba
Hooters of Ontario Mills, Case Nos. 31-CA107256, 31-CA-107259, 31-CA-104877, 31-CA104892, 31-CA-104874 (May 19, 2014), currently before the NLRB on exceptions (appeal).
4. NLRB v. Burnup & Sims, 379 U.S. 21 (1964).
5. Starbucks Corporation, 360 NLRB No. 134
(2014).
6. Wright Line, 251 NLRB No. 1083 (1980).
This new flexibility will give employees more freedom in choosing weather
to maintain employer-sponsored group
coverage, or opt for a Marketplace plan
option instead. It is worth noting that
unlike premiums for employer-sponsored health plans, premiums for
Marketplace plans cannot be paid on a
pre-tax basis which may affect employees’ decisions.
Employers will need to be aware of
these new qualifying events in order to
accommodate and communicate with
employees. Like all Section 125 qualifying events, it is optional for employers
to adopt these newly recognized events.
Employers have the choice to limit
employees’ election changes to open
enrollment only; however choosing to
adopt all permissible qualifying event
standards would allow employees much
greater flexibility.
In practice, it is rare for an employer
to restrict employees’ ability to make
medical plan election changes to open
enrollment alone. While it may provide
ease in administration to process elections only once per year for all employees, this would not address the needs of
employees. If employers opt to include
these new allowances as would seem
the popular choice, they should have
their plan documents amended accordingly before the end of their 2015 plan
years.
Christina Villecco is the Vice President of
Legislation and Compliance for Heffernan
Insurance Brokers, where she advises
employers of their obligations under the
Affordable Care Act and assists employers
of all sizes with ERISA and ACA compliance.
1. 26 CFR 1.125.
2. 26 CFR 1.125-4.
3. 26 CFR 1.125-4.
4. The Patient Protection and Affordable Care
Act, Public Law 111-148, was enacted on
March 23, 2010.
5. Public Law 111-148, Sections 1311-1313.
6. Public Law 111-148, Section 1402.
7. ‘Minimum Value’ is an actuarial value meaning the health plan covers at least 605 of the
anticipated costs for a given population;
‘Affordable’ under ACA means the single tier
on the lowest plan does not exceed 9.5% of the
employees’ household income.
8. IRB 2014-41, to be published Oct 6, 2014.
DISCRIMINATION ...
lizing the “stray remark” framework.9
Buckman alleged that (i) only Caucasian personnel
were retained after the 2008 layoffs, (ii) others viewed
acts toward Buckman as discrimination, and (iii) that
this stray remark was anything but. Judge Sheindlin
evaluated the stray remark10 and concluded that
“Delaunay’s isolated alleged comment that Perry was
a good fit for sales because he is white, although inappropriate, is not probative of whether Buckman was
discharged because of his race.”11 The Court reasoned
that,12 “[a]lthough a reasonable juror could find that
the remark itself was discriminatory, it was too
remote in time and context to support a reasonable
inference that Buckman’s discharge was a result of
race discrimination.”13
Judge Scheindlin further found that “Buckman …
failed to satisfy his burden on summary judgment – to
offer evidence crossing the line beyond ‘mere speculation and conjecture.’ Buckman can only point to a
stray remark, hearsay, and a distorted view of the
impact of the April 2008 reduction in force on protected groups.”14
that Plaintiff “did not fit in” with the other Van
Members; and (2) Statements from Department of
Public Safety supervisors that, Payette, a white male,
would “fit in better” than plaintiff, an African
American.
Citing the Fifth Circuit, the Second Circuit evaluated whether the “fit in” phrasing offered by the
employer was pretext: “the underlying reasoning
holds: the phrasing ‘better fit’ or ‘fitting in’ just might
have been about race; and when construing the facts
in a light most favorable to the non-moving party,
those phrases, even when isolated, could be enough to
create a reasonable question of fact for a jury. It is
enough of an ambiguity to create a reasonable question of fact.”21
n
January 2015
n
21
with other employees. Keep notes and records of what
has transpired in meetings with an employee when
addressing their job performance or making termination decisions.
Employees should be provided documentation and
employers should provide a meaningful way for the
employee to voice his or her concerns. This applies to
a promotion/demotion, firing/hiring or other meaningful discourse between the employee and employer.
When it comes to firing, the key word is finality; both
parties should understand when and where the
employee-employer relationship ended and why. This
may help reduce any perceived misunderstanding and
will help foster communication between the employee
and the employer.
“Not being a good fit” cannot function as a gentle
guise of discrimination, like it was for Abrams, an
African-American who consistently worked hard and
tried to move up the ranks as he saw less senior
Caucasian employees pass over him in rank.
Cory Morris is an active civil rights litigator and an adjunct
professor at Adelphi University. He is a Nassau Suffolk Law
Services Advisory Board member and volunteer attorney
with the New York Civil Liberties Union, and both the Nassau
County and Suffolk County Bar Associations.
Abrams v. Dept. of Public Safety
In Abrams v. Dept. of Public Safety,15 the Second
Circuit found that not being a ‘good fit’ could be considered pretext of discrimination. The Court held that
“[t]he Fit In Statements raise a genuine dispute as to
whether the proffered reasons for Abrams’s nonassignment to the Van were pretextual.”16
In that case, the plaintiff, an African-American
police officer, tried, for nearly a decade, to get into the
department’s specialized unit but was unsuccessful,
often being passed over by less senior Caucasian individuals17 There was no formal application for the specialized unit and detectives were chosen by a few
select supervisors. “After transferring into[the unit,
plaintiff’s] report writing met with differing reviews;
he received occasional criticism from some supervisors,” but began to steadily improve, a “trend [which]
continued in his evaluations through 2008, when his
supervisor was replaced.18
The Court noted that plaintiff spoke with an
Affirmative Action Officer for a five-year period but
did not formally file a complaint until 2007. Abrams
eventual complaint alleged, amongst other things,
that he felt he was subjected to a hostile working environment and that he was given the feeling that he
“did not belong” when he accompanied other unit
members.19
The District Court of Connecticut granted defendants’ motions for summary judgment.20 The only
issue before the jury was plaintiff’s Title VII retaliation claim against the Department of Public Safety for
a denial of assignment to the specialized unit after
plaintiff’s complaints. After trial, the jury found for
the Defendants and, on appeal, the verdict was
upheld, however, the Second Circuit vacated the
District Court’s grant of summary judgment as to the
race discrimination claims.
The Second Circuit assumed that denial to the unit
was an adverse employment action and evaluated two
statements of which the District Court disregarded:
(1) Department of Public Safety employees’ comments
Nassau Lawyer
Although “[t]he comments themselves may not
prove discrimination, but they were enough to preclude summary judgment and subject the employer to
a trial on the question.”22 The Plaintiff in Abrams
endured nearly ten years of what he alleged was discrimination; he never quit and he spoke to human
resources for nearly five years before he filed several
complaints. What message does this send to employers who think certain workers are not a “good fit” or
do not “look the part?”
Communicate and Corroborate
One response from employers is to personality
test23 – a topic of scrutiny24 and also the subject of at
least one lawsuit.25 The Wall Street Journal recently
noted that “60 to 70% of Americans will take a personality test as part of a job application.”26
“Employers and the firms that create these personality tests say they help companies predict who will perform well on the job, and streamline the hiring
process.”27 While opinions vary, compliance with state
and federal law coupled with honest and open communication may be the best solution.
If your client, the employer, takes an “adverse”
employment action based upon an individual’s inability to “fit in,” be sure that the employer documents
these problems. Identify how not “fitting in” translates into an issue,28 operations and/or performance
difficulty. One should avoid using ambiguous language or the phraseology, “fitting in,” altogether.
Consider actions taken with other employees and try
to act consistently when taking employment action
1. Abrams v. Dept. of Public Safety, 13-111-cv (2d Cir. Aug. 26,
2014).
2. Buckman v. Calyon Sec. (USA) Inc., 817 F. Supp. 2d 322, 327
(S.D.N.Y. 2011).
3. Buckman, 817 F. Supp. at 327.
4. Id. (citing Buckman Tr. at 306:16–307:3).
5. Id.
6. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973)
7. Buckman, 817 F. Supp. at 330 (internal citations omitted).
8. Id. at 336.
9. The Court evaluated the standard in Henry v. Wyeth Pharm.,
616 F.3d 134, 149 (2d Cir.2010).
10. Id. at 334-36.
11. Id.
12. Id. at 335-36.
13. Id. at 336 (emphasis added).
14. Id. at 336 (internal citations omitted).
15. See Abrams v. Dept. of Pub. Safety, 856 F. Supp. 2d 402, 411
(D. Conn. 2012) aff’d in part, vacated in part, remanded, 764
F.3d 244 (2d Cir. 2014).
16. Id.
17. 30 No. 9 Term. of Employment Bulletin NL 5, 30 No. 9 Term. of
Employment Bulletin NL 5 (external quotation marks omitted).
18. Supra, note 19.
19. Id.; Abrams, 856 F. Supp. 2d at 406-410.
20. Abrams, 856 F. Supp. 2d at 411.
21. Abrams v. Dept. of Public Safety, 13-111-cv, at * 20 (2d Cir.
Aug. 26, 2014)(emphasis in original).
22. Supra, note 19.
23. Lauren Weber and Elizabeth Dwoskin, Are workplace personality tests fair?, The Wall Street Journal (September 30, 2014
12:37PM), http://online.wsj.com/articles/are-workplace-personality-tests-fair-1412044257http://online.wsj.com/articles/are-workplace-personality-tests-fair-1412044257.
24. See id.; see also Beau Baez, Personality Tests in Employment
Selection: Use With Caution, Cornell University (January 26,
2013) http://cornellhrreview.org/personality-tests-in-employment-selection-use-with-caution/http://cornellhrreview.org/personality-tests-in-employment-selection-use-with-caution/.
25. See Abby Ellin, Woman Sues Over Personality Test Job
Rejection, ABC News (October 1, 2012),
http://abcnews.go.com/Business/personality-tests-workplacebogus/story?id=17349051http://abcnews.go.com/Business/personality-tests-workplace-bogus/story?id=17349051.
26. Lauren Weber, Better to Be Artistic or Responsible? Decoding
Workplace Personality Tests, Wall Street Journal (September
29, 2014 11:40 PM), http:// blogs.wsj.com.
27. Id.
28. See supra, note 19 (the Abrams “decision should highlight for
employers the importance of clearly articulating and documenting the reasons for employment decisions.”).
ASSOCIATION NEWS
(l-r)Terrence Tarver, Daniel J. Baker, Andrea Brody and John Christopher with
Marines representing the Toys-for-Tots Campaign at the New York State Bar
Association holiday party for the Young Lawyers Section and Real Property
Section.
Members of the NCBA Executive Committee attended the final presentation of Molloy’s
Graduate Business Capstone class, which partnered with the NCBA to address the
following business concerns identified by the NCBA, (1) finance the restoration and preserve the integrity of the physical structure of Domus; and, (2) assess the marketing
Photo by Hector Herrera
strategy to increase membership.
22
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EEOC ...
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Nassau Lawyer
ciliation, and persuasion.”3 Congress
was very mindful when enacting Title
VII that it encourage voluntary proceedings and informal conciliation as
opposed to litigation.4
Specifically, prior to filing suit, the
EEOC must do the following:
1. receive a formal charge of discrimination against the employer;
2. provide notice of the charge to the
employer;
3. investigate the charge;
4. make and give notice of its determination that there was reasonable
cause to believe that a violation of Title
VII occurred; and
5. make a good faith effort to conciliate the charges.5
The EEOC may sue only after
exhausting such investigatory and conciliation efforts.6 It has been held that
“the conciliation period allows the
employer and the EEOC to negotiate
how the employer might alter its practices to comply with the law, as well as
how much, if any, the employer will pay
in damages.”7
Federal Courts Recognize the
“Failure to Conciliate” Defense
Until the Seventh Circuit’s decision
in EEOC v. Mach Mining, LLC in
December 2013, all federal appellate
courts that had dealt with this issue,
including the Second Circuit Court of
Appeals, held that the failure to fulfill
the mandate to attempt to conciliate
such charges may be a bar to the EEOC
bringing a federal lawsuit against an
employer for alleged workplace discrimination.
Thus, while the federal circuits
have been split on what level of judicial scrutiny applies when such efforts
are reviewed if raised as an affirmative defense or as the basis for a dispositive motion, every circuit that has
reviewed this question has concluded
that a court may make a determination as to whether the EEOC’s efforts
in attempting to resolve such matters
was adequate.
For example, the Fourth, Sixth and
Tenth Circuits have concluded that the
EEOC need only show that it made a
“genuine effort” in “good faith” to conciliate.8 In general, this approach gives
great deference to the EEOC’s efforts at
conciliation. The Eighth Circuit has
reviewed the EEOC’s conciliation
efforts without identifying a specific
test. Rather, the Eight Circuit looks to
whether the EEOC’s investigation and
conciliation efforts were “reasonable.”
Finally, the Second, Fifth and
Eleventh Circuits have held that the
EEOC must satisfy a specific test in
showing that it made a good faith effort
to conciliate the matter pre-litigation.
In addition to giving the employer
notice of the charges it seeks to conciliate,9 the EEOC fulfills this mandate if
it:
1. outlines to the employer the reasonable cause for its belief that the
employer is in violation;
2. offers an opportunity for voluntary
compliance; and
3. responds in a reasonable and flexible manner to the reasonable attitude
of the employer.10
Ultimately, the fundamental question is the reasonableness and responsiveness of the EEOC’s conduct looking
at the totality of the circumstances.11
The contours, nature and extent of
the EEOC’s conciliation process and
whether those efforts are adequate will
vary from case to case, but the process
is designed to “allow the employer and
the EEOC to negotiate how the employer
might alter its practices to comply with
the law, as well as how much, if any, the
employer will pay in damages.”12
The Court’s role in reviewing efforts
to conciliate is modest; the EEOC, as
the enforcement agency, has discretion
to formulate conciliation efforts in each
situation, but it must do so in good
faith.13 The Second Circuit has cautioned that the EEOC should be given
wide latitude in shaping both the general framework of conciliation and the
specific offers made.14 In addition, if the
employer refuses the invitation to conciliate or responds by denying the
EEOC’s allegations, the EEOC need not
pursue conciliation and may proceed to
litigation.15 Although the EEOC need
not prove its charges “to the employer’s
satisfaction,”16 or disclose all of its
underlying evidence,17 it should do
something in response to the employer’s
reasonable entreaties.
Ordinarily, when the EEOC has
failed to meet its duty to conciliate, “the
preferred remedy is not dismissal but
instead a stay of the action to permit
such conciliation.”18 However, when the
EEOC fails to conciliate in good faith,
courts have dismissed cases on that
basis alone.19 The Seventh Circuit’s
decision in EEOC v. Mach Mining is
potentially a game changer.
Mach Mining: The Seventh Circuit
Rejects the Defense
In this case, Mach Mining sought
dismissal of the EEOC’s discrimination
lawsuit on the ground that the agency
failed to engage in good-faith conciliation before filing suit. The EEOC moved
for summary judgment on this “failure
to conciliate” defense, arguing that
courts should look no further than the
face of the complaint to review the sufficiency of the conciliation process itself.
The district court denied that motion
but certified for interlocutory appeal
the question of whether an alleged failure to conciliate is even subject to judicial review in the form of an implied
affirmative defense to a lawsuit instituted by the EEOC.
The Seventh Circuit reversed the
district court’s denial of summary judgment and held, contrary to the other circuit courts cited above, that the statutory directive to the EEOC to negotiate
first and sue later does not implicitly
create a defense for employers who
have allegedly violated Title VII.
In so holding, the Seventh Circuit
relied on several arguments. First, it
concluded that in instructing the EEOC
to try to secure an agreement prior to
instituting formal legal action,
Congress delegated to the EEOC the
means of doing so. Second, the Court
noted that Congress directed that the
details of the EEOC’s conciliation
efforts be held strictly confidential, and
that an implied affirmative defense for
failure to conciliate conflicted directly
with that confidentiality provision.
Third, the Court felt that the lack of a
meaningful standard to apply to the
EEOC’s conciliation efforts was fatal to
such an implied defense.
In other words, the Court believed
that it would be extremely difficult for a
court to determine whether such efforts
were adequate, especially when the
statute give the agency complete discretion to accept or reject an employer’s
offer for any reason. Finally, the Court
felt that allowing an implied affirmative defense for failure to conciliate
could undermine the conciliation
process itself, by giving employers motivation for undermining such efforts.
David S. Feather is a member of The Law
Offices of David S. Feather. The law firm’s
practice is limited to representing clients in
employment and labor law matters.
1. 42 USC §2000e, et. seq.
2. 738 F.3d 171 (7th Cir. 2013).
3. 42 USC §2000e-5(b).
4. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355
(1977).
5. Id.
6. Id.; See also EEOC v. Johnson & Higgins, 91
F.3d 1529 (2d Cir. 1996).
7. Johnson & Higgins, Inc., supra n.7.
8. See, e.g., EEOC v. Keco Indus., Inc. 748 F.2d
1097, 1102 (6th Cir. 1984); EEOC v. Zia Co.,
582 F.2d 527, 533 (10th Cir. 1978).
9. EEOC v. Thomas Dodge Corp. of N.Y., 524 F.
Supp. 2d 227, 236 (E.D.N.Y. 2007)
10. EEOC v. Johnson & Higgins, 91 F.3d 1529
(2d Cir. 1996); EEOC v. New Cherokee Corp.,
829 F. Supp. 73 (S.D.N.Y. 1993).
11. EEOC v. New Cherokee, supra n.10.
12. EEOC v. Johnson & Higgins, Inc., supra n.10.
13. EEOC v. Sears, Roebuck & Co., 650 F.2d 14
(2d Cir. 1981).
14. Id.
15. EEOC v. Johnson & Higgins, supra; EEOC v.
New Cherokee Corp., supra n.10.
16. EEOC v. Prudential Fed. S&L, 763 F. 2d
1166 (10th Cir. 1985).
17. EEOC v. Hibbing Taconite Co., 266 F.R.D.
260 (D. Minn. 2009).
18. EEOC v. Golden Lender Fin. Group, 2000
U.S. Dist. LEXIS 4750 (S.D.N.Y. 2000).
19. See EEOC v. Sears, Roebuck & Co., 650 F.2d
at 19.
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