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THE WEED TRUTH: Recreational Use of Marijuana, even if legalized in New York, Can Still Get You FIRED!

https://chrisvandewater.com/the-weed-truth-recreational-use-of-marijuana-even-if-legalized-in-new-york-can-still-get-you-fired/Let’s face it, the legalization of the recreational use of marijuana in New York State appears a foregone conclusion.  Both the state Legislature and Gov. Andrew Cuomo are negotiating whether to include the legalization of recreational marijuana in the state budget for the fiscal year that starts April 1st. However, keep in mind that license to fire up that joint would not go into effect, at the earliest, until the following year in April of 2020, when New York would officially join the 10 other states that have already legalized recreational marijuana use.

Governor Andres Cuomo’s proposal for the legalization of recreational marijuana use essentially condenses into the following agenda:

  • Ban marijuana sales to anyone under the age of 21
  • Establish separate licensing programs for marijuana growers, distributors and retailers, with a corresponding ban on growers also opening retail locations
  • Create a new state office, The Office of Cannabis Management, to regulate the drug and create a program to review and seal past marijuana convictions
  • Allow counties and large cities in New York to ban marijuana sales within their boundaries
  • Impose a 20 percent state tax and 2 percent local tax on the sale of marijuana from wholesalers and retailers, plus a per-gram tax to be imposed solely on growers
  • Provide preferences and incentives to minorities and women who intend to establish retail sales locations.

Nevertheless, the debate rages on about how far reaching the effects will be within the school environment, impaired driving and ultimately, the workplace.

Along that vein, it is important for all New Yorkers to be aware of the risks of showing up to work under the influence of marijuana.  As you know, if you show up to work under the influence of alcohol, and your employer has a substance abuse policy in their handbook, then you risk a disciplinary write-up at best, and termination at worst.  The same rules apply to employee’s use of recreational marijuana.  If you show up to work high, or light up outside your employer’s premises, employees run the same risks as with alcohol use.  Certainly, it is a fine line to tread as there are no uniformly established THC levels that your employer can test to determine an employee’s level of impairment.  Employers would therefore be given free license to make subjective judgments as to an employee’s level of impairment based upon smell, speech patterns, eye movement and dilation, delayed reactions, emotional state, short-term memory problems, among other physical symptomology.

It is a slippery slope at best, but an employer is within their rights to terminate employees with substance abuse violations.  This is especially so in occupations involving physical labor and the use of a motor vehicle including drivers, delivery companies, waiters, warehouse workers, trades and any employees in the service industry.

The Van De Water Law Firm stands ready to serve you with respect to any employment issue, and our initial consultation is always free.

The Van De Water Law Dirm-Christopher Van De Water

Are You Opening a New Restaurant

Legal Concerns for New York Restaurant Owners

Author: Stephen D. Hans

NY Restaurant LawsIf you’re opening a new restaurant in New York City or the surrounding area, there are certain legal requirements you must put in place. You will need to choose a business entity and get your licenses and permits. You must address health and safety issues (ventilation, garbage removal, sanitation, etc.) before opening your restaurant. You will also need to purchase insurance.

When all the above is said and done, you still have the matter of employees. An employment attorney is a vital resource who can help ensure you are up to speed with New York employment laws.

New York Employment Laws

You will have to know which employees must be paid for overtime, the rules about paying tipped employees and the laws for employing minors. You will have to verify the legal work status of every employee at your restaurant and fill out an I-9 form for each employee.

Before you begin the hiring process, it is wise to know what questions you should avoid. Our blog on job interviews will give you a basic idea but to ensure you have all the information, it is wise to consult with an attorney.

Our lawyer can assist you by reviewing your job application to ensure it does not contain illegal questions. You also need to understand how to check references without making illegal inquiries.

It is wise to devise an employee handbook and ensure it is legally sound.

You must set up sexual harassment training for all of your employees based on recent New York State law.

If you feel overwhelmed about the laws involved with opening a restaurant, you are not alone. You can avoid some employment nightmares at the outset by consulting with an experienced New York employment attorney.

At Stephen Hans & Associates, we work with restaurant owners to help them comply with labor laws and to deal with employment issues.

BANG FOR YOUR BUCK: GET THE RAISE YOU DESERVE

Author: Christopher L.Van De WaterChristopher L. Van De Water, Esq.

How to ask for and get the raise you deserve

The holidays are a time of financial giving, but that doesn’t mean all companies will be giving out  bonuses, or even raises for that matter.

According to recent surveys by several finance and staffing firms, while monetary holiday bonuses are expected to increase in value this year, bonuses, overall, are becoming more scarce. In a poll of 500 U.S. companies, 63 percent of hiring managers say their company plans to give employees a bonus, the survey notes. That’s down from 75 percent in 2017.

Whether or not you end up among the growing number of workers who won’t get a bonus this year, your holidays can still be happy. Here are five effective steps to take to ask for, and get, a raise:

Do your research and come prepared

First things first: If you want a raise, you’ll have to do your homework. Set realistic expectations about what your salary increase might look like and understand why you deserve it.

To gauge your market value, try using a salary calculator. These tools can offer insight by measuring your pay against your experience and position and comparing it to the wages of your peers across the country. Keep in mind, though, the estimates rely on self-reported numbers and can’t take into account your specific circumstances.

Document your achievements and noteworthy projects

Start by identifying any tasks you’ve taken charge of that were unanticipated when you began the job or any additional responsibilities you’ve taken on.

If you’ve received notable recognition or awards, note that too. This could help your manager better understand the value of your work and your importance to the team.

Find the right time to approach your manager

Be sure you ask for a raise at the right time, not just because you need the money or because “you just heard the guy in the next cubicle is making $5,000 more than you,” bestselling author and CNBC contributor Suzy Welch says.

According to a LinkedIn report, January is one of the top months when employers give out raises. Thus, preparing your pitch in December could be a smart move.

Initiate the dialogue

Once you’ve done your research, you can initiate a conversation with your manager. Instead of bringing up the issue in passing, schedule a formal meeting and come ready to break down exactly  why you deserve that raise!

Be sure to focus on why you deserve it, not just why you need it.
Keep in mind, dollars and cents aren’t the only possible form of compensation. Ask about perks and benefits such stock options, a more flexible schedule, including telecommuting.

Finally, show your appreciation

Clearly assert why you deserve a raise but don’t get pushy. If your boss doesn’t feel you deserve a raise yet, don’t get mad. Ask what steps you can take to earn one.

If there just isn’t room in the budget to pay you more at the moment, make clear that you understand and, again, could be willing to talk about other kinds of perks and compensation. This could make the conversation more collaborative and open the door for a follow-up soon.

Takeaway

Even if you don’t walk away with everything you want, odds are you’ll feel good about being assertive. Remember, lots of job seekers and employees are too anxious to try to negotiate, but those who ask for more are usually more successful.

Happy Holidays from the Van De Water Law Firm

EMPLOYMENT LAW ALERT: EMPLOYER COMPLIANCE WITH NEW SEXUAL HARASSMENT LAWS COMMENCES ON OCTOBER 9,2018

A BRIEF BY COMPREHENSIVE OVERVIEW OF WHAT YOU NEED TO KNOW TO COMPLY WITH THE NEWLY ENACTED NEW YORK STATE AND NEW YORK CITY SEXUAL HARASSMENT TRAINING LAWS

Author: CHRISTOPHER L. VAN DE WATER, ESQ. MANAGING PARTNER

Christopher-L-Van-de-Water
In 2018, both New York State and New York City have enacted the strictest harassment training laws in the Nation as a clear outgrowth of the #MeToo movement that swept the country following the Harvey Weinstein scandal. All Employers must begin compliance with the New York State Law commencing on October 1, 2019, and the New York City Law on April 1, 2019.

I. 2018 New York State Budget Sexual Harassment Training Provisions Contained within Part KK of S7507-C

On April 12, 2018 New York Governor Andrew Cuomo signed into law several bills that were included in the 2018-2019 New York State budget. The bills address workplace sexual harassment. Part KK of S7507-C 0g the new law requires New York employers to adopt and distribute a sexual harassment policy and training program. The new requirements take effect October 9, 2018.

A. Content Requirements of the New York State Sexual Harassment Policy:

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More specifically, the new law requires employers adopt a sexual harassment prevention policy which:

1)  prohibits sexual harassment and provides examples of prohibited conduct;

2)  includes information concerning federal and state sexual harassment lawsand mentions there may be applicable local laws;

3)  includes a standard complaint form;

4)  includes a procedure for the timely and confidential investigation ofcomplaints including due process for all parties;

5)  informs employees of their rights of redress and available forums foradjudicating claims administratively and judicially;

6)  clearly states sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory management who knowingly allow such behavior to continue; and

7)  clearly states retaliation against individuals who complain of sexual harassment or who testify or assist in any proceedings is unlawful.

 

This sexual harassment policy must then be provided to all of your employees in writing. It would be advisable to include this policy in your orientation package. You should should informally and formally routinely remind employees of this policy. Read More

The Stop Sexual Harassment Fact Sheet can be found here in English:

DIFFERENCES BETWEEN THE NYC AND NEW YORK STATE NEW SEXUAL HARASSMENT LAWS

The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:

  • Training Requirements (Table 1)
  • Training Content (Table 2) Read More

The Van De Water Law Dirm-Christopher Van De Water

(631) 923-1314

ALL CONTENT COPYRIGHTED © BY THE VAN DE WATER LAW FIRM, P.C. 2018

The Second Circuit Court of Appeals Delivers Big Win to Gay Workers in New York

Workplace Discrimination Based On Sexual Orientation Now Illegal Under Federal Law In New York

Gay-Heart-web

Published by Aaron Ferri

Yesterday, in a landmark 10-3 ruling, the Second Circuit became the second federal Court of Appeals to hold that Title VII of the federal Civil Rights Act of 1964 (“Title VII”) includes protections against sexual orientation discrimination in the workplace. Employers in Connecticut, New York, and Vermont can no longer discriminate against gay and lesbian workers with respect to compensation, terms, conditions, or privileges of employment, without running afoul of Title VII’s prohibition of discrimination on the basis of sex.

While the Second Circuit had previously held that sexual orientation discrimination claims were not cognizable under Title VII, yesterday’s majority opinion, written by Chief Judge Robert Katzmann, acknowledged that the legal framework for evaluating such claims had, “evolved substantially,” requiring the overturning of the Circuit’s prior precedents.

According to the majority, one’s sexual orientation is largely defined by an individual’s sex and the sex of the person he or she is attracted to. Therefore, the Court held, sexual orientation discrimination is motivated, at least in part, by sex, and is thus covered under Title VII’s prohibition against discrimination on the basis of sex.

Additionally, the Court found that discrimination against a gay or lesbian employee on the basis of sexual orientation constitutes unlawful “sex stereotyping”, under Title VII. The U.S. Supreme Court has long recognized that employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females. For instance, a company cannot fire a female employee because she is deemed insufficiently “feminine” in her demeanor, dress, or mannerisms. In yesterday’s Opinion, the Circuit Court acknowledged that stereotypes about homosexuality are inescapably related to people’s preconceived notions regarding the proper roles of men and women, and therefore, any adverse employment action taken on account of sexual orientation would necessarily involve impermissible gender-based stereotyping.

Finally, the Court held that sexual orientation discrimination is a prohibited form of associational discrimination on the basis of sex. Just as an employer may violate Title VII if it takes action against an employee because of that employee’s association with a person of another race, an employer cannot take action against an employee because of that employee’s mere association with a person of the same (or opposite) gender. Importantly, the Court held, with limited exception, that the prohibition on associational discrimination applies with equal force to all the classes protected by Title VII, including race, color, religion, and national origin.

A Huge Win For The LGBTQQ Community In New York, Connecticut & Vermont

Although this ruling does not apply nationwide, for the time being, it represents binding precedent in the Second Circuit, which is includes Connecticut, New York, and Vermont. Gay and lesbian workers in these states will now be able to challenge the discriminatory behavior of their employers in Federal Court, and may be eligible to recover attorney’s fees and punitive damages if they are successful. The decision also creates another avenue to bring the issue back to the U.S. Supreme Court, which could give the decision nationwide effect.

If you work in New York and feel you are being discriminated against by your employer based on your sex or sexual orientation, or if you have additional questions regarding the protections granted under Title VII, you should consider meeting with a New York Employment Attorney to learn more about your rights.

The case discussed in this blog post is Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2017)

leeds brown law

How Can Lawyers Get in Trouble Over Sex?

Author: Bill Cafaro

The most shameful case in recent history was Thomas Lowe, an Egan, MN attorney representing a divorce client, who had an affair with her that lasted seven months. After several arguments with the woman about the affair and his own marriage, Lowe said he was breaking things off. Two days later, he said he was withdrawing as her attorney. That day, the woman, who was vulnerable because of past abuse and mental health treatment, tried to kill herself. While hospitalized, she disclosed the affair.
In giving him an indefinite suspension, the Minnesota Supreme Court found that he had not only had sex with a vulnerable client; he had actually billed her for meetings during which they had sex.¹

sex at the office

Who’s Gotten in Trouble over Sex in New York Recently?

There were two cases in the past year which make for interesting reading. In one, a lawyer offered to represent a prostitute in a small town court upstate in exchange for her services – a good old fashioned barter arrangement. Unfortunately for the lawyer, his client was smarter that he was, and she contacted the police. The prostitute then recorded phone calls with the lawyer, agreeing that they would have sex in exchange for his legal services. As a result, the lawyer plead guilty to loitering for the purposes of prostitution and got community service. The disciplinary committee found that the lawyer had obviously violated the rule against requiring sexual relations as a condition of providing representation², but he was only given a censure, which is essentially a public reprimand. Although we don’t know it for a fact, it’s a safe bet she got the prostitution charge dismissed for turning the lawyer in, because he was certainly a bigger fish than she was.

office romance

In a much more serious case, Tara Lenich, a Deputy Bureau Chief in the Brooklyn District Attorney’s Office, was indicted in federal court and plead guilty to forging wiretap warrants. Because she had a romantic interest in a detective who she suspected of dating another female prosecutor in the same office, she forged judges’ signatures on fake orders authorizing her to eavesdrop on their cell phones and falsified warrants for their text messages. She told her colleagues in the office that she was working on an investigation so secret that no one else could know about. A staffer in the DA’s office became suspicious when she saw another prosecutor’s personal phone number on the eavesdropping warrant. She faces a maximum of 10 years on the guilty plea. Although her sentence will likely be far less than that, she will definitely lose her law license because anyone convicted of a felony³ is subject to automatic disbarment under New York law.

Is Sex Allowed Between a Lawyer and a Client?

So What’s the Rule: Is Sex Allowed4 Between a Lawyer and a Client?

There is a strict prohibition 5 in New York against having sex with a divorce client, because divorce clients are often emotionally vulnerable, and there is an increased risk that the client will be exploited. However, even this rule has an exception if the sexual relations started before the client-lawyer relationship , so a lawyer could legally represent his/her lover in the divorce that followed in the wake of their adulterous affair. Also, any sexual relationship6 that begins after the representation is over would not be breaking any rule, even in a divorce case.

What About Sex with Clients in Non-Divorce Cases?

While there is technically no rule against it, any lawyer that starts a sexual relationship with a current client is entering into a grey area. As one court said “because a sexual relationship between a lawyer and client creates the risk of impairing the professional judgment of the lawyer, and rendering the client unable to make rational decisions related to his or her case, the relationship may be detrimental to the client’s interests. As such, “sexual relations between lawyers and their clients are dangerous and inadvisable””7 If the lawyer is accused of doing anything else that’s against the rules, having sex with that particular client will add a “sleaze factor” to the disciplinary case that won’t lead to any good places.

 

Are Doctors Allowed to Have Sex with Their Patients?

Although the concern used to be confined to psychiatry, since 1991 the American Medical Association has taken a much tougher position and adopted a blanket rule. “Sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct.” 8That same opinion goes so far as to say that “Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship.” In fact, the AMA goes so far as to regulate sexual and romantic relationships between doctors and key third parties who accompany their patients.9 What will happen to a doctor who dates a patient seems to vary quite a bit, though, according to the particular state and the particular circumstances.

 

 

  • [1] In re Disciplinary Action against Lowe, 824 N.W.2d 634, 2013 Minn. LEXIS 3, 2013 WL 167954 (Minn. 2013)
  • [2] Rule 1.8[j][1][i], Matter of Shaw, 138 A.D.3d 133, (4th Dep’t 2016).
  • [3] NY Judiciary Law § 90(a), (e)
  • [4] This Post only talks about New York, and these are only general rules and do not constitute legal advice. Before getting the room, check with your lawyer if sex is allowed in your state and your particular circumstances.
  • [5] Rules of Professional Conduct , 12 NYCRR 1200.0, Rule 1.8[j][1][iii].
  • [6] 12 NYCRR 1200.0, Rule 1.8[j][2].
  • [7] Matter of Raab, 139 A.D.3d 116, 119, (1st Dep’t 2016).
  • [8] AMA Journal of Ethics, Opinion 8.14 – Sexual Misconduct in the Practice of Medicine, Issued December 1989; updated March 1992 based on the report “Sexual Misconduct in the Practice of Medicine,” adopted December 1990.
  • [9 ] AMA Journal of Ethics, Opinion 8.145 – Sexual or Romantic Relations between Physicians and Key Third Parties Issued December 1998 based on the report “Sexual or Romantic Relations between Physicians and Key Third Parties,” adopted June 1998.