Example: A records clerk for the Nassau County legislature was fired from his job less than four months after an election in which Republicans took control of the Legislature, and claimed that he had gone door to door for Democratic candidates, volunteered at phone banks, and distributing campaign literature. The Legislature argued that it had let him go due to budget cuts, the fired clerk argued that the need for budget cuts arose only because the Legislature had hired three new employees—all Republican. His claim was valid Fishman v. County of Nassau, 2013 U.S. Dist. LEXIS 47071, 2013 WL 1339466 (E.D.N.Y. Apr. 1, 2013),
Absolutely not. Remember also that there will be generally little or no protection for any political activities conducted during work hours, on the employer’s premises, or using the employer’s equipment or materials; It gives you protection for what you do on your own time. Whether a simple one time statement of political affiliation at work is protected is not really clear from the law, and can probably be argued either way, but the more extensive the speech is at work, the better chance the boss will win. If the employee is wearing a campaign button for a particular candidate and the employer says to take it off, they should do it and put it back on when they leave work.
Remember – The General Rule is That There is No Free Speech Right When You Work for a Private (non-government) Employer on His Time. The law we’re talking about here provides some protection, but that protection is limited; it is by no means absolute.
Are Government Employees (Federal, State, City, County, etc.) Political Speech Rights Protected?
But here are a few things to keep in mind:
The speech always has to be about a matter of public concern, and if it is, the employee’s right, as a citizen, to engage in the speech has to be weighed by the Court against the interests of the State, as an employer, in promoting the efficiency of the public services it performs, Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. 1968).
This can also cover rights of political association; and
In order to be protected, it must generally be on the employee’s own time, without using the employer’s premises or materials; and
Anything a public employee says in the course of his/her employment will not be protected. Example: If an employee of the Mayor’s Office makes any statement on the news in his/her official capacity, the Mayor can fire or discipline them for anything they say or don’t say, whether it’s true or not. Remember also that policy making and confidential employees probably can be dismissed just based on their political affiliation where the employer can show that party affiliation is an appropriate requirement for the effective performance of the public office involved, Vezzetti v. Pellegrini, 22 F.3d 483, 1994 (2d Cir. N.Y. 1994).
If you have strong political views which are very different from those of your employer, you should probably avoid any confrontation and get legal advice first as to how to best protect yourself. Call the Law Offices of William Cafaro at 212-583-7400 before you take any action like this.
It’s not uncommon, in New York and other jurisdictions, for dispossessed or unhappy heirs to allege that a will was executed under duress or undue influence. What if you videotape the execution of the will, so that there’s visual evidence to support the assertion that the decisions regarding disposition of property were entered into knowingly and voluntarily?
While a video recording of the actual event of executing a will can be introduced as evidence in proceedings to determine the validity of the will, it’s important to start with the understanding that visual evidence is not totally objective of infallible. Consider that ten people can witness the same accident and have ten different descriptions of what happened. Nonetheless, if you are considering videotaping the execution of a will, here are some factors to consider.
The Videotape May Not Be Allowed as Evidence
The decision to allow the videotape into evidence is solely at the discretion of the court. The court may not consider it relevant to the matters being litigated. The court may conclude that the videotape provides no credible evidence of capacity or intent.
The Court Must Have Reason to Believe that the Tape is Authentic
You will probably need to bring witnesses into to court to testify that they were present when the video was taken. In legal terms, this is known as establishing a proper foundation for the evidence. The court must have some basis for believing that the tape is what it is alleged to be.
The Court Must Have Confidence that the Tape Has Not Been Altered
In addition, the court may have concerns about the “chain of custody” of the videotape. The court will want reasonable assurances that the video presented was actually taken at the time represented and that the videotape has not been altered or tampered with between the recording and its presentation as evidence. Accordingly, it may be necessary to document when and where the recording took place, where the videotape was secured immediately after the recording, who had access to the tape while it was secured, any movement of the tape (along with who moved it) and how it got to court.
Of course, there are no assurances that the video recording will have any impact on the outcome of the dispute. A judge or jury may watch the video and come away with a completely different perception of the events than intended.
At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.
If your law firm is buried in paper, you are probably operating like you did in the 20th century.
Successful law firms today are paperless. If you take advantage of the latest technology, you not only meet the challenges of our digital world, but you will also grow your business.
Are You Meeting the Needs of 21st Century Clients?
Using outdated practice management methods, as so many small law firms still do is at odds with the needs of 21st century clients. Smartphones and other mobile devices such as tablets, iPads and digital tablets have a profound impact on how we work, just as the personal computer did a generation ago.
Small law firms particularly, need innovative technology to:
Integrate case documents seamlessly
Satisfy a client base that accesses information on smartphones and other mobile devices
Give attorneys access to all client information, including all case documents — wherever they are
Store and protect all case data safely and securely
If you are ready to move your firm’s practice to the 21st century, here are five practical tips:
Like every other state, New York has workers’ compensation laws designed to be the primary (and sometimes exclusive) remedy when a person is hurt on the job. But there are specific requirements for eligibility for workers’ compensation benefits—not every injury that keeps you from working will qualify you for workers’ compensation payments.
The basic criteria to qualify for workers’ compensation benefits are:
You must have been injured on the job or during the course of your employment. Injuries suffered in a motor vehicle accident will qualify if you were traveling for work at the time of the crash.
You must have been an employee of the person or company from whom you seek benefits. If you were self-employed, you typically cannot seek benefits from a third party with whom you contracted to do some work. For example, if you are a construction subcontractor, you may have no workers’ compensation claim against a general contractor or owner for injuries suffered on a construction site.
The business that employed you at the time of the injury must have had workers’ compensation insurance or have been required by law to carry such insurance. In New York, there are very limited exceptions to the requirement that companies carry workers’ compensation insurance—typically, a business will only be exempt there are no employees (other than owners).
At Pyrros & Serres LLP, we provide comprehensive counsel to people with workers’ compensation and Social Security disability claims in Brooklyn, Queens, the Bronx and across the greater New York City metropolitan area. Because of our reputation for effective advocacy, many of our new clients come to us as referrals from clients and other lawyers.
If I am an executor, administrator or trustee, do I need an attorney and who pays for it? Why spend the money?
The answer is that you should. Since the duties of a fiduciary involve actions that required legal counsel, any non-attorney executor (or fiduciary) who personally handle all estate matters (without retaining counsel) has engaged in the unlawful practice of law.
Matter of Van Patten—Representation by Counsel
One of the fundamental functions of a last will and testament is to name an executor, the person designated to oversee the orderly distribution of the assets of the estate. Though there are clearly situations where it’s essential for the executor to retain legal counsel to settle the estate in the probate court, there can also be situations where the executor might find it problematic or perhaps even unnecessary to hire a lawyer to probate a will. The estate may lack the resources to pay legal counsel. An important question, then, is whether an executor can handle all the duties required to probate an estate without hiring legal counsel.
The executor in Van Patten challenged the ruling, arguing that she was the only beneficiary of the estate, so she was essentially the acting in her own interests. The court disagreed, finding that she had a responsibility to creditors of the estate as well. The court then ordered the executor to hire legal counsel or risk have the estate’s objections to the trust accounting dismissed.
At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at (631)425-7299 or 24/7 at (855)479-4700 to set up a free initial consultation.
Under the estate laws in New York, a person named in a will as an executor has certain “fiduciary duties.” A fiduciary duty is essentially the requirement to act in the best interest of another party. The fiduciary duty owed by an executor is the duty to act in the best interests of the estate and all beneficiaries to the estate. The fiduciary duty imposed on an executor requires that the executor always put the interests of the estate above his or her own self interests.
In addition, though, an executor has a duty to find and manage the assets of the estate in the best interests of the estate and, ultimately, the beneficiaries. That typically includes taking “reasonable” steps to preserve or maximize the value of estate assets. A 2014 opinion in the Surrogate’s Court in Kings County addressed that specific issue.
In Matter of Mahler, 2009-1485/B, Richard Mahler was the named executor of the estate of Margaret Van Cortlandt Billmyer. Among the estate’s assets was real property, which Mahler contracted to sell to a personal acquaintance for the purchase price of $670,000. Three days after the closing on the sale of the property, the buyer, Basile, sold the property for $1.3 million.
Adelphi University, an heir to the estate, contested the accounting of the estate and the New York State Attorney General joined in the action, asking the court to find that Mahler had breached his duty to act in the best interests of the estate. The petitioners asked the court for $630,000 in damages—the difference between the sales price to Basile and Basile’s revenue three days later.
In response to the legal action filed against him, Mahler contended that the property was run-down and needed extensive repairs. Adelphi and the Attorney General’s office alleged, however, that Mahler had failed to obtain any comps (prices for comparable properties in the area) and that he had taken no action to determine the actual fair market value of the real estate.
When questioned by the court, Mahler could provide no explanation for the difference in value over the three day period. The court concluded that the petitioners had met their burden to show that Mahler had breached his fiduciary duty to exercise diligence and care when selling the property. In its opinion, in fact, the court found Mahler “utterly devoid” or the required care to be exercised by a fiduciary. The court concluded that a $630,000 surcharge assessed against Mahler was appropriate.
The opinion rendered by the Surrogate’s Court demonstrates the importance of seeking experienced legal counsel when you’ve been named executor or administrator of an estate. At the Law Office of Bonnie Lawston, we offer comprehensive counsel to executors, administrators and personal representatives, helping you avoid any potential fiduciary challenges.
Contact the Law Office of Bonnie Lawston
At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation. Our attorneys and staff can enforce the applicable laws of New York State and require the executor, administrator or trustee to maximize your inheritance and protect your rights. Call us for a free consultation and deferred legal fees.
Author: Chris Palermo The decision to divorce is life changing, and unanswered questions can linger in the back of your mind, making you uncertain or insecure about your decisions.Scientific American reported about research that could be helpful to know.
Should you stay in an unhappy marriage to protect your kids from the harmful effects of divorce?
Every year about 1.5 million children live in families where their parents divorce. According to one research study, only a small percentage of children suffer from serious problems related to divorce. On the short term, the divorce may seem traumatic. Your children may react with anger, anxiety, sadness or shock. However, kids overall recover quickly, and usually by the end of the second year after divorce, such negative emotions disappear. Studies showed that children from intact families and divorced families didn’t differ significantly.
What effects do high levels of parental conflict have on children?
Children subjected to high parental conflict had a more difficult time adjusting in life. This is true whether within a marriage or during or after divorce. Despite this fact, children in high conflict families experienced less shock when learning their parents were getting a divorce. Children were more prepared to hear about the divorce and were less surprised or terrified by the news. Some even experienced relief.
How can you reduce the factors that would adversely affect your children?
You can limit your conflict associated with the divorce process or avoid exposing your child to the conflict. The better you adjust to life changes after divorce, the more likely your child is to adjust well too. Open communication with your children and answering their questions helps them. Good parenting that provides warmth and support and economic stability are also positive influences. Socially supporting your kids and social support from other adults like teachers and the children’s peers can also help them bounce back from the divorce.
Work with a Divorce Lawyer You Can Trust
If you’re contemplating divorce and have questions Attorney Chris Palermo is glad to provide you with experienced legal guidance. He can help you make the right decisions.
New York City | Queens | Brooklyn | Bronx Workers’ Compensation Lawyers
The Workers’ Compensation Board Ruled Against You—Now What?
You got hurt on the job and it seemed like an open and shut case—then the workers’ compensation board ruled against you. Now what do you do? What are your options?
If you receive a decision that seems inconsistent with the facts, that you feel is unjustified, there are a number of different levels of appeal:
The first level of appeal—File a written appeal with the commissioners of the workers’ compensation board. Set forth the reasons, legally and factually, why you believe the workers’ compensation judge was wrong. You must file this appeal within 30 days of the date of the written notice of the denial of your initial claim. That date will be stamped at the bottom of your notice.
The next level of appeal—If you’ve submitted a written petition to the commissioners and disagree with their ruling, you can ask for a full board review of your claim, where all the commissioners will review your claim. At the same time, you can file an appeal with the appellate division of the State of New York for the 3rd Department, a court system that oversees the workers’ compensation board
At Pyrros & Serres LLP, we handle all matters related to workers’ compensation and Social Security disability claims for people in Queens, Brooklyn, the Bronx and across the greater New York City metropolitan area. Because of our reputation for effective advocacy, many of our new clients come to us as referrals from clients and other lawyers.
At the end of September 2016, the Department of Labor released the final rules for federal contractors. The rules required employers to provide workers with paid sick leave.
The final rule only applies to employees working on or in connection with federal contracts. Nevertheless, it establishes a guidepost that reflects the trend for sick leaves regarding workplaces in general.
Under the following situations, workers can use paid leave:
For their own personal illness (whether a physical or mental disorder, disease, condition or impairment)
To take of a sick family member
To see a doctor
To take a family member to a medical appointment
For handling issues related to domestic violence, sexual assault or stalking
Statistics indicate the rule will:
Provide up to 56 hours of sick leave per year for approximately 1.15 million federal contractors’ employees, which also includes 594,000 employees who currently do not receive paid sick leave.
Employers can allow sick leave to accrue over time or front load sick leaves to make administration easier.
Employers are given flexibility in integrating existing paid time-off policies with existing collective bargaining agreements.
Sick Leave Carry Over
Sick leave days from one particular year carry over to the next year. However, the employer does not have to pay the worker for accrued sick leave that the worker did not use by the end of the job. If the employer rehires the same employee within 12 months (even if for a different contract), and sick leave had been accrued but not used, the accrued sick leave is reinstated.
Overall, the purpose of the final rule is to help improve workers’ health and performance while protecting public health as well by keeping sick workers at home.
The final rule goes into effect in January 2017.
Do You Have Questions about Sick Leave?
If you have questions about sick leave for employees, consult with an experienced employment litigation attorney.
Is your firm spending too much time on administrative tasks?
Surveys of billable vs. non-billable hours show that attorneys in small firms work about 60-66 hours a week with up to 12 hours spent on non-billable tasks. In a Lexis-Nexis survey, more than half of respondents ranked administrative and practice management tasks as the number one or two activity that consumed the majority of non-billable hours.
The Root of the Problem
An ABA Legal Technology Survey Report showed that fewer than 35 percent of smaller law firms are using any sort of legal-specific practice management software to assist with administrative tasks.
Here are four simple steps to take control of your time, improve efficiency and bridge the gap between your firm’s billable and non-billable hours.
Step 1: Use One Database
Legal -specific practice management software is a must. However, not all software is equally efficient. You will need software that is an all-in-one solution for maximum efficiency.
Storing information in multiple databases, i.e. one for client data and case management, one for time tracking, one for billing, etc, is inefficient, inaccurate, costly and frustrating. With an all-in-one software solution, you import client and matter details only once and then use those details where and whenever you need them.
You will sabotage your firm’s efficiency if you try to make different systems work together – puzzles are great, just not in your firm.
All-in-one practice management software handles all administrative tasks:
Automated forms and precedents
Time recording and billing
Once you stop duplicating data, you will be amazed at how much more you will get done, You will save about five hours per person per week on admin tasks and you will enjoy practicing law more.
Step 2: Automate document production
For most lawyers, producing correspondence of all kinds is par for the course. Obviously, the faster the better for improved time utilization and efficiency.
The quickest, easiest and most accurate method to manage correspondence and paperwork is an integrated system that merges previously captured data directly into your document, email and contract templates.
A good system will enable you to complete correspondence in minutes. Ideally, you should also be able to add your own precedents and other legal documents, so there is a standard process for all staff.
This way your benefit is twofold – better service for your clients and efficiency for your firm. It’s a win-win!
Step 3: Record All Time – Billable and Non-Billable Work!
If you’re not recording every second, you’re throwing money away. You must know how much time you are spending on a particular matter so that your fees are accurate, regardless of your fee structure. Recording time manually is inefficient, inaccurate and makes extra non-billable work. What you want is a ‘touch it once’ system where your time is recorded accurately in every instance in which you work on a matter.
The ideal system will track, record and save your billable hours on electronic timesheets automatically and enable you to:
Find the correct matter quickly
Start and stop the timer easily if you are interrupted
Enable you to record time, even if the matter has not yet been opened
Allow you to record time wherever you are, without being tied to a desktop.
Accurate time recording —only half the battle
Recording your time correctly is crucial, but a ‘client friendly’ billing process is the cherry on top.
Let’s be honest, billing is boring. Too many lawyers have manual or poor systems to record time and the tedious nature of the task means billing gets put off until the conclusion of a matter. Putting off billing until the end might seem like a good way to limit time spend on producing invoices, but it also raises risk of creating bad blood with clients over billing disputes or delays in paying the invoiced amount. Many lawyers place themselves in such a position repeatedly.
Avoid the risk:
Provide your client with a simple and clear costs agreement
Record time and disbursements diligently
Generate bills using the original data recorded in your system. Don’t dictate and retype!
Prepare invoices regularly, at least monthly, so your clients can pay in small amounts
Make your payment terms clear
Stop work if your clients don’t pay
If your firm records billable time in this way, you should expect a revenue increase of about 30%!
Step 4: Make Sure Everyone in the Firm Uses the System
The last step is the most important. Unless everyone in the firm uses the same system and tools, you will never beat inefficiency frustrations and failures. Often it takes strong leadership to push new processes because change can be daunting. Just remember, firms that don’t evolve will not be able to compete successfully.
Small law firm success is not a mystery, The truth is, the better your firm runs, the more profitable it will be and the more you will be able to pay your staff and yourself.
Increase Your Firm’s Profitability with LEAP
LEAP is an elegant, cloud-based legal matter management and accounting software solution that includes everything you need to run a small law firm. The software allows you to work more effectively so your small firm runs more efficiently and profitably.
Because LEAP is used exclusively for small law firms, all the feedback we get is from people like you. Thus, LEAP is a remarkably practical and user friendly solution for anyone working in a small law firm. For more information visit the LEAP website.