Nassau Lawyer Current Issue

The Journal of the Nassau County Bar Association January 2021 www.nassaubar.org Vol. 70, No. 5

NCBA COMMITTEE for NCBA Board of Directors MEETING CALENDAR Page 17 The Nominating Committee is for at least three consecutive years, “We need leaders who can confront the seeking active NCBA Members who and an active member of a committee challenges faced by our Bar Association want to serve on the Nassau County for at least two consecutive years. The during this unprecedented time and help SAVE THE DATE Bar Association Board of Directors. Nominating Committee also considers create opportunities for Members to LAW DAY The deadline to apply is Monday, each applicant’s areas of practice, recover from the pandemic.” Advancing the Rule of Law Now January 25, 2021. leadership positions in the Nassau Interviews with candidates will Thursday, April 29, 2021 The NCBA Board of Directors County Bar Association and other begin in February; the Committee will consists of the President, President-Elect, organizations, and the diversity of nominate one person for each Offi cer— See pg. 6 for details Vice-President, Treasurer, Secretary, 24 experience and background a candidate other than President—and Director elected Directors, as well as the Dean of would bring to the Bar’s governing body. position and issue its report at least NCBA DINNER GALA the Nassau Academy of Law, Chair of The Nominating Committee consists one month prior to the 2021 Annual the Young Lawyers Committee, NCBA of nine Members of the Association Meeting and Election to be held on Saturday, May 8, 2021 delegates to the NYSBA House of who previously served on the Board Tuesday, May 11. 6:00 PM Delegates, and all past presidents on the of Directors. Elena Karabatos, NCBA NCBA members interested in applying See pg. 6 for details Bar Association. Immediate Past President “once to become a Director or Offi cer should NCBA Offi cers and a class of eight removed,” is Chair of the Committee forward a letter of intent, application, Directors are elected at the Annual and Immediate Past President Richard resume or curriculum vitae no later WHAT’S INSIDE Meeting in May and take offi ce June 1. D. Collins serves as Vice-Chair. than January 24 to Nominating Offi cers serve for one-year terms and “The Nominating Committee Committee Chair Elena Karabatos at Paying for Convenience: Pitfalls for Directors hold offi ce for 3-year terms. is seeking candidates with diverse [email protected] or NCBA, 15th & Employers in On-Call Scheduling pg. 3 NCBA Members who wish to be experiences and skills who are committed West Streets, Mineola, NY 11501. The Cultural Competence in nominated must be a Life, Regular, or to serving our Long Island community application can be downloaded on the Sustaining Member of the Association and legal profession,” says Karabatos. Bar’s homepage at www.nassaubar.org. Family Court pg. 5 It’s Not Just a Form: Importance of Properly Completing Form I-9 pg. 6 2020 Virtual Second Circuit Provides Practitioners Holiday with Clarity When Settling Unpaid Wage Cases pg. 7 Celebration End of Tip Credit in Miscellaneous Industries pg. 8 The COVID-19 Pandemic did not deter the NCBA from holding one of Recruiting Diverse Public Sector its most long-standing traditions, the Employees pg. 9 Annual Holiday Celebration. While A Few Thoughts on Making Technology Members could not be together at Domus in person to celebrate the a Lawyer’s Best Friend pg. 12 holidays, they were able to enjoy the Primer on Affirmative Action for Holiday Celebration from the comfort Construction Contractors pg. 13 and safety of their homes via Zoom on Thursday, December 3, 2020. Curt Flood: Vindication in Defeat pg. 14 As is tradition, NCBA Past Presidents Book Review: Murphy’s Will by Edward joined in the virtual mixing of the A. McCoyd, Esq. pg. 15 Wassail Bowl, President-Elect Gregory S. Lisi told his rendition of the “True OF NOTE Tail of Wassail” with a creative and humorous video presentation, and NCBA Member Benefit—I.D. Card Photo NCBA Past Presidents Andy Simons Obtain your photo for Secure Pass and Joe Ryan lead the group with a Court ID cards pre-recorded, festive holiday sing-along. The recording of the Virtual Holiday Only For New Applicants Celebration can be found online at Photo by Jennifer Groh Cost $10 www.nassaubar.org for you to enjoy.

UPCOMING PUBLICATIONS CONFIDENTIAL HELP IS AVAILABLE TO LAWYERS AND JUDGES COMMITTEE MEETINGS alcohol or drug use, depression or other mental health problems Thursday, February 4, 2021 at 12:45 PM Call Lawyer Assistance Program Thursday, March 4, 2021 at 12:45 PM (888)408-6222 NCBA CORPORATE PARTNERS 2020-2021

Nassau County Bar Association Corporate Partners are committed to providing Members with the professional products and services they need to succeed.

NCBA Corporate Partner Spotlight

vdiscovery PHP PrintingHouse Press Michael Wright John Farrell (212) 220-6111 (212) 624-9985 [email protected] [email protected] www.vdiscovery.com www.phpny.com

NCBA’s newest Corporate Partner, vdiscovery, is a Manhattan-based Since 1970, PHP has worked diligently to be the industry’s leading appellate provider of proprietary and in-breed solutions in computer forensics, services provider delivering innovative solutions that address the needs of document review, and electronic discovery, bringing deep expertise, effi cient clients as well as the appellate industry at large. solutions, and an exceptional client experience to corporations and law fi rms PHP is a proud corporate partner of WE CARE, the nationally recognized for over 40 years. fund of the Nassau Bar Foundation, the charitable arm of the Nassau County Bar Association. Nassau Lawyer January 2021 3 FOCUS: Paying for Convenience: Pitfalls for LABOR LAW Employers in On-Call Scheduling

employer can open itself up to liability the waiting time, and all of the employers need to maintain their under the New York Labor Law1 and surrounding circumstances. Facts bottom-line, but knowing they have staff the Fair Labor Standards Act,2 not only may show that the employee was available if necessary. for on-call pay, but also for overtime pay, engaged to wait, or they may show attorney’s fees, and liquidated damages. that he waited to be engaged. 1. 12 N.Y.C.R.R. § 142-2.1. 2. 29 C.F.R. §§ 785.15, 785.16. Under both statutes, employers must His compensation may cover 3. 29 CFR § 785.15; O’Neil v. Mermaid Touring, Inc., pay employees who are on-call and both waiting and task, or only 968 F. Supp. 2d 572, 581 (S.D.N.Y. 2013). called into work for the scheduled shift. performance of the task itself. 8 4. O’Neil, 968 F. Supp. 2d at 581. However, when an on-call employee is 5. Id. Simply put, if an employee is waiting 6. Armour & Co. v. Wantock 323 U.S. 126, 133 (1944) Debra L. Wabnik and Amanda B. Slutsky not asked to actually work, or is only to receive work or be told what to do, 7. Calderon v. Mullarkey Realty, LLC, 2018 U.S. Dist. asked to work for a portion of the LEXIS 97224 *54-55 (E.D.N.Y. June 10, 2018). fter months in quarantine, and can go where the employee pleases, on-call time, caution must be exercised. 8. Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944). businesses in New York State the employee is likely waiting to be Generally, if the employee is not able 9. See id.; Moon v. Kwon, 248 F. Supp. 2d 201, 229-30 began opening and bringing engaged, and need not be compensated. (S.D.N.Y. 2002). to use on-call time as the employee Aemployees back to their worksites. 10. O’Neil, 968 F. Supp. 2d at 581. On the other hand, if the employee is pleases, the employee is considered However, with restrictions on the limited in location and/or activity, the Debra L. Wabnik is a “engaged to wait,” and on-call time is number of occupants in a location and employee likely must be paid. Other partner at Stagg Wab- considered compensable time.3 If the nik Law Group LLP with fl uctuating operations, employers are considerations include the terms of any employee is engaged to wait and works extensive experience in often faced with diffi culties in scheduling company policy or employment contract, general litigation, labor more than forty hours that week, it is staffi ng. In these uncertain times, a and employment law, critical the employer pay the overtime the frequency with which the employee is and banking litigation. business might not know its needs in rate to avoid liability. contacted, the time the employee is given advance, but must be prepared for an A defi nitive rule to determine whether to respond, and discipline imposed for infl ux of customers at any time. For 9 an employee is engaged to wait has not the failure to respond. example, a restaurant owner could been established.4 Courts urge against Because each case is diff erent, expect a Monday dinner service to Amanda B. Slutsky is an it, and often let a jury decide whether an employer must be careful when be relatively light, so a small staff is associate at Stagg Wab- an on-call shift was compensable, or scheduling an employee as on-call. The nik Law Group LLP and scheduled. Unexpectedly, there is a employer should establish an explicit practices labor and whether the employee had too much employment law. rush of customers and the owner does freedom to be considered working and and consistent policy that outlines not have enough staff onsite or non- was therefore merely “waiting to be an employee’s rights while on-call, scheduled employees available on their engaged,” which is not compensable. the employer’s expectations, and the 10 day off . One method employers use This involves engaging in a heavily fact- location of the on-call shift. With in these situations to keep business dependent analysis to determine if this in mind, scheduling employees as expenses low but still meet customer the employee was “engaged to wait.”5 on-call could be the solution struggling needs is to schedule employees as For example, in determining that an “on-call.” employee who used on-call time to play There are various ways an employer cards and partake in other activities LAW YOU SHOULD KNOW can schedule an employee as on-call. was engaged to wait, the United States On 90.3 FM WHPC An employer may maintain an on-call Supreme Court noted that “[r]efraining Hosted by Kenneth J. Landau, Esq. policy, whereby the employee is required from other activity often is a factor of Celebrating 30 Years! to remain at the worksite and work when instant readiness to serve, and idleness For Voicestream or PODCAST go to www.NCCradio.org requested, but can otherwise use the time plays a part in all employments in a Wednesday, January 13, 2021 in any manner (i.e., sleeping, watching 6 stand-by capacity.” In another case, the Do's and Don'ts for Zoom movies). Alternatively, an employer could court found the plaintiff was waiting to at 3:00 PM require the employee to stay at home be engaged for hours when the plaintiff during the on-call shift and only come to was free to leave the worksite, use the Wednesday, January 20, 2021 work if called. Additionally, an employer time for “personal activities,” and did Why Diversity is Important for Law Firms at 3:00 PM can allow the employee to do whatever not have to work until told to do so.7 the employee wants at any location The United States Supreme Court Wednesday, January 27, 2021 during the on-call shift. As another explained the impossibility of a rigid Escaping from the Law to a More Enjoyable Career option, an employer can schedule an rule, stating that the required inquiry: at 3:00 PM employee and request the employee …involves scrutiny and Wednesday, February 3, 2021 contact the employer prior to the shift construction of the agreements How to Declutter and Organize Your Home/Office with starting to see if he or she is needed. between the particular parties, Kelly McMenamin, Author of "Organize Your Way" At fi rst glance, scheduling an appraisal of their practical at 3:00 PM employee as on-call seems to be a construction of the working simple method to give the employer agreement by conduct, Wednesday, February 10, 2021 the fl exibility it needs in these consideration of the nature of How to Declutter and Organize Your Office After COVID with Kelly McMenamin, Author of "Organize Your Way" unprecedented times. But in doing so, an the service, and its relation to at 3:00 PM RECENT PODCASTS INCLUDE Podcasts for Lawyers Religious Guidance for Coping with the Pandemic in the Months Ahead Subscribe today New Programs for Alternate Dispute Resolution in Nassau County Courts GUESTS WANTED Contact us at [email protected] if you would like to discuss an interesting/important aspect of the law. CLE OFFERED *You can earn CLE by listening to broadcast, podcast (or purchasing CDs) of these shows. Check with the Nassau Academy of Law for details. Visit www.nassaubar.org or call (516) 747-4464. 4 January 2021 Nassau Lawyer Nassau Lawyer President’s Column The Official Publication of the Nassau County Bar Association 15th & West Streets, Mineola, N.Y. 11501 Let us open 2021 with a fresh start. This New handle 50 cases per month in conjunction with Phone (516)747-4070 • Fax (516)747-4147 Year is unlike any other, where our Bar has other ADR/mediation providers. As soon as the www.nassaubar.org E-mail: [email protected] the opportunity to fl ourish! Chief Judge Janet Bar receives the green light, we will be ready! NCBA Officers DiFiore said, “At this unprecedented moment in Our mission remains unchanged: to President our state and nation’s history, we all need to do deliver competent legal services to all without Dorian R. Glover, Esq. what we can to support one another and ensure regard to their ability to pay; and to protect and President-Elect that we will not only meet this challenge but improve our system of justice. Throughout this Gregory S. Lisi, Esq. emerge from it stronger and more united than year, you can enjoy a fresh start with our free Vice President ever before.” CLE programs; showcase your expertise by Rosalia Baiamonte, Esq. One challenge that we will soon face is the writing an article for the Nassau Lawyer; and Treasurer surge in legal matters. Remember when we were FROM THe grow your business and referrals through our Sanford Strenger, Esq. faced with the question of how to address the PReSideNT Lawyer Referral Service Program. Secretary challenges of a legal profession which generally Allow me to give special mention to the Daniel W. Russo, Esq. requires in-person contact with all involved Dorian R. Glover Chairs of our 50+ committees who provide Executive Director parties; congregating in TAP parts with other learning opportunities as well as keep members Elizabeth Post Editor-in-Chief attorneys awaiting courtroom assignments; real engaged; WE CARE Advisory Board, Chaired Christopher J. DelliCarpini, Esq. estate closings in conference rooms; conducting depositions by Mike Masri and Hon. Jeff rey A. Goodstein, who are to observe body language to test the veracity of one’s Copy Editor excelling in the tradition of making charitable fi nancial statements; or trials? The answer is we not only faced the Allison C. Shields, Esq. contributions to community organizations in need; our challenges, but we also mastered technology so that our Editor/Production Manager Lawyer Assistance Program (LAP), directed by Beth function would have a seamless transition. Ann Burkowsky Eckhardt, PhD, and the Lawyer Assistance Committee Photographer When Hon. Norman St. George, Nassau County chaired by Jacqueline A. Cara, who off er a 24-hour Hector Herrera Administrative Judge, invited our COVID-19 Task Force to confi dential helpline that is available to lawyers, judges, the Supreme Court on October 15, 2020, we witnessed the and law students in need of supportive counseling services January 2021 court’s preparation in compliance with Phase 4.1 of Return for mental health and addiction, free of charge and always Rhoda Y. Andors, Esq. to In-Person Operations, which consisted of protective confi dential; Nassau Academy of Law Dean Anthony Rudy Carmenaty, Esq. safety measures and protocols with courtroom layout Christopher J. DelliCarpini, Esq. Michael Sabino, elevating the Bar with informative and changes; clear partitions (erected on two sides of the judge’s Focus Editors instructive continuing legal education programs; and bench); and the relocation of juror seating to courtroom Cynthia A. Augello, Esq. rows where spectators previously sat. our staff , led by Executive Director Elizabeth Post, who Ellin Cowie, Esq. In addition, we learned the witnesses will testify from continue to demonstrate their commitment to Members Andrea DiGregorio, Esq. the jury box and the tables (where attorneys sit with their and the overall success of the Bar Association. Nancy E. Gianakos, Esq. clients) have been rotated in the courtroom to provide for Please note that our January Board of Directors Meeting Thomas McKevitt, Esq. more distancing. Attorneys will only deliver remarks from will be special as we will continue the tradition of meeting Jeff Morgenstern, Esq. a podium. Spectators will be seated in another courtroom jointly with the Suff olk County Bar Association. Invited and will be able to view the proceedings with state-of-the- guests include Hon. Norman St. George, Administrative Committee Members art technology. At our year-end call last month, Justice St. Judge, Nassau County; Hon. Andrew A. Crecca, Christopher J. DelliCarpini, Esq., Co-Chair Andrea M. DiGregorio, Esq., Co-Chair George shared that as soon as we receive the “green light, Administrative Judge Suff olk County; and Scott Karson, Rudy Carmenaty, Esq., Vice-Chair (to return to Phase 4.1), we are ready!” New York State Bar Association President. Rhoda Y. Andors, Esq. As we host the meeting remotely, I also look forward to We will also succeed with the challenge of the upcoming Cynthia A. Augello, Esq. surge in legal matters. In my capacity as NCBA President, welcoming Hon. Derrick J. Robinson, Suff olk County Bar Deborah S. Barcham, Esq. I have received the call to support the courts with a new Association President, and his Board of Directors. Hon. Robert G. Bogle alternative dispute resolution program. The goal is to Looking forward to our fresh start in 2021! Deanne Marie Caputo, Esq. Ellin Cowie, Esq. Nancy E. Gianakos, Esq. Adrienne Flipse Hausch, Esq. NCBA 2020-21 Jordan K. Hoffman, Esq. Janine Luckie, Esq. Michael J. Langer, Esq. MEMBERSHIP DIRECTORY Michael H. Masri, Esq. Thomas McKevitt, Esq. NOW AVAILABLE FOR PURCHASE Daniel McLane, Esq. Jeff H. Morgenstern, Esq. Marian C. Rice, Esq. NCBA Members can contact our Daniel W. Russo, Esq. Allison C. Shields, Esq. Tammy Smiley, Esq. Membership Department at Ellen B. Tobin, Esq. Published by Long Island Business News (516) 747-4070 to purchase a (631)737-1700; Fax: (631)737-1890 Publisher Graphic Artist Joe Dowd Wendy Martin

hardcopy of the directory for just $15. Nassau Lawyer (USPS No. 007-505) is published month- ly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association that are of substantive and procedural legal interest copyright ©2021. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to Nassau Lawyer, Mineola, NY 11501. its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations, and quotations. Nassau Lawyer January 2021 5 FOCUS: Cultural Competence in the Family Court FAMILY LAW

humility which inform our perception best interests of children. I will give you law school, as members of the judiciary of access to justice and the fair and just a small example. we must be able to identify instances application of the law. A few years back, in a custody when cultural differences may bear on The first step to becoming culturally proceeding before me, a mother (non- the cases at before us. Taking time to competent is understanding what culture English spelling, and born and raised understand and make inquiry of the is and its impact on the individual’s daily in a Latin American country), and a parties will give us the complete picture life. Culture is the “set of distinctive father (a white man born in the United so that we can make decisions based spiritual, material, intellectual and States) were embroiled in a difficult upon the totality of circumstances. emotional features of society or a social custody dispute over an infant born out I have found that the best application group and…encompasses, in addition of a weekend affair. Both parties were of the law and the best outcomes to art and literature, lifestyles, ways of represented by counsel (both white come when we take the time to take a Hon. Linda K. Mejias living together, value systems, traditions American counsel), and the subject child step back and take the litigant as they 2 f knowledge is the better and beliefs.” was also represented by counsel (also are—taking into consideration where part of judgment, then gaps Culture vastly impacts how a person white American). they come from and what their life in knowledge, whether legal defines justice, conflict, and disorder. It The infant child was living with experience has been. Ior social, can lead to gaps in plays a large role in defining how the the mother and the father sought sole judgment. And those gaps in person determines when it is appropriate custody of the child based upon several Cultural competence means judgment, however small, can to involve third parties, including the reasons including, but not limited to, his [we have] been educated have profound effects on the one state and/or court, in resolving problems perceived deficiencies in the mother’s who is being judged.1 and conflicts. Culture also impacts how child-rearing practices, e.g., that the about other cultures.” a person describes events or incidents, mother gives the child chamomile tea We have all heard that justice is blind, To be clear, being culturally and how they fashion responses or and administers other herbal remedies and certainly we are familiar with Lady competent should not be confused solutions to problems and conflicts. to the child. It was not disputed that the Justice—the personification of the virtue with being culturally biased, which can It is, however, when differing cultures child had been seen by a pediatrician of justice. Lady Justice originated as either unfairly disfavor or favor a group, intersect within the justice system, regularly for well visits and did not Justicia; a Roman goddess introduced which would clearly not produce a just that misunderstandings and missed present with any medical or health by Emperor Augustus around 13 BC. outcome. Being culturally competent opportunities for creative problem- issues other than normal issues such as She stands tall in her draping robes— and putting cultural humility into solving can present themselves, unless gas. The Attorney for the Child was in one hand she holds the scales by practice does not mean that a judge will of course judges are able to identify, deeply concerned and even went so far which she measures the weight of the favor or disfavor a group, but rather that understand, and consider the litigants as to characterize the mother’s actions evidence, and in the other she wields a it means that the judge ought to take a culture. Simply put, we, as judges, as abuse. sword demonstrating the authority of holistic approach to the administration cannot continue to be blind to culture This is where the opportunity to of justice in family court. the court. and to continue to be so deepens the practice cultural competence comes But Lady Justice was not always blind. A culturally competent bench already notable and apparent inequities in. After making a searching inquiry can be achieved with education and It is only since the mid-16th century surrounding the Father’s allegations in our current legal system. training, however, the best and most that she has, in many though not all Certainly, most of us have heard and AFC’s concerns, I took a deep effective step towards creating a more depictions, worn a blindfold signifying the terms cultural competence and breath, and proceeded to explain that culturally competent bench is to actively her impartiality. She was to be blind cultural humility, as well as implicit there appeared to be possible cultural pursue diversity on the bench so that it to wealth, power, or other status. It is bias, but perhaps you are not clear differences present here. I shared with reflects the community it serves. Until noteworthy that race, gender, religion, what that all means. counsel and the parties that I was appropriate and sufficient diversity is and disability were not included as “Cultural competence means [we raised in a Latino household where it achieved on the bench, bias training characteristics to be included in the have] been educated about other was a common practice to give infants must be mandatory for all judges, court application of impartiality. The addition cultures, humility is how we should and children herbal remedies before staff, and administration. Indeed, among of the blindfold to Lady Justice makes be practicing that competence in the resorting to medications. I went on to the recommendations presented by evident that the application of fair and field.” Sarah Elizabeth, social worker share with counsel and the parties that Secretary Jeh Johnson in the Report impartial justice is not static. but rather and Blogger. Cultural competency is I myself gave such herbal remedies to from the Special Advisor on Equal ever evolving, striving for true justice. the ability to operate effectively across my own child. Immediately the looks of The term “blind justice” must now, different cultures. It is a process that concern washed away from everyone’s Justice in the New York State Courts, more than ever, be carefully qualified. requires an individual to question faces, and I could see that the mother is that the court system develop and To what degree should it be blind fundamental personal and professional felt understood and seen. mandate comprehensive bias training for and to what specifically and how so. assumptions before he or she can I felt a sense of hope to see that the judges and non-judicial employees that Justice must be blind to characteristics father and the attorneys seemed open focuses on implicit bias, racial bias, and acquire the skills to assess the differences 5 which would give one party an unfair in terms of practical consequences. “For to learning about and understanding cultural sensitivity. advantage over the other, but it cannot legal professionals, cultural competency the mother’s culture. What I have In order to achieve a fair and just legal be blind to all characteristics. has been defined more specifically as just described is a perfect example of system we must take off our blindfolds, put in our contact lenses of cultural Cultural Competence in a ‘the ability to adapt, work and manage cultural humility in practice. Taking the humility, and take the time to really see, Multicultural Community successfully in new and unfamiliar time to explain this cultural difference cultural settings.’”3 gave the parties and counsel the ability listen and understand. Today, the idea that judges ought Cultural humility, on the other hand, to get past non-issues and work towards 1. Monica Driggers, J.D., The Courtroom in a Diverse not consider nor favor individuals is a multidimensional practice, which a more just outcome for the parties and Society: Understanding the Need for Cultural Competence, based upon race, socioeconomic status, requires a willingness to put aside what certainly for the child. Wellesley Centers for Women (Research & Action gender, sexual identity, or disability is Fall/Winter 2009), available at https://bit. you know, or what you think you know, Cultural Competence as a Prerequisite ly/37YpvuP. considered the foundation for the fair 2. Aastha Madaan, Cultural Competency and the Practice about a person or a group, based upon for Justice administration of justice for all, but known or personally held generalizations of Law in the 21st Century, ABA (March 1, 2017), as a sitting Family Court Judge, I am Later that day when I thought about about their culture, and further requires See CULTURAL COMPETENCE, Page 20 challenged with the idea that I must an openness to understanding and this interaction, I concluded that before be totally blind to characteristics and accepting what the person or group a judge can identify and explain a Hon. Linda K. Mejias has been a Judge in circumstances of the litigants I see every itself has determined to be their cultural difference, she must have the Nassau County Fam- day, especially when recognizing and “personal culture.”4 capacity and training to be able identify ily Court since 2017. She acknowledging such characteristics and potential cultural issues. The just should also served on the NCBA Board of Directors. circumstances inform me in useful ways Cultural Competence in Practice be trained to make the proper inquiry to which would indeed result in the most So, how can the judiciary put cultural flesh out the cultural differences which just outcome for all parties and subject competence into practice in the family may affect the outcome of a matter or children. What I am describing is the court to ensure that the law is justly the application of the law. Just as we practice of cultural competence and applied to all litigants while ensuring the are trained to identify legal issues in 6 January 2021 Nassau Lawyer FOCUS: It’s Not Just a Form: The Importance of LABOR LAW Properly Completing Form I-9

Employers have the option to complete has provided guidance for employers proof of employment authorization. the paper Form I-9 and retain records reviewing original documents to confi rm Requiring that an employee present accordingly, or to use the e-Verify tool their authenticity. specifi c documents can result in a claim created by United States Citizenship Specifi cally, USCIS advises when for employment discrimination where an and Immigration Services (USCIS).2 reviewing documents, “if they employee presents acceptable documents If relying on the paper form, the most reasonably appear to be genuine and to show employment authorization, but updated form can be found on the to relate to the person presenting them, it is rejected because it is not what the USCIS’s website.3 USCIS frequently you must accept them. To do otherwise employer requested. changes forms with little to no notice, so could be an unfair immigration-related Specifi cally, the Department of Rachel Baskin it is incumbent upon employers who are employment practice. If the document(s) Justice, Immigrant and Employee do not reasonably appear to be genuine ince the Immigration Reform and paper documenting to ensure they are Rights (IER) Section reviews potential or to relate to the person presenting Control Act (IRCA) was passed using the latest Form I-9. claims based on discrimination related them, you must not accept them.”6 in 1986,1 all US Employers are Similarly, it is the employer’s to citizenship status discrimination, obligation to ensure that the Form That said, if an employer has Sobligated to confi rm the employment national origin discrimination, unfair I-9 is properly executed. While it may knowledge that the documents presented authorization of all employees. Not documentary practices; and retaliation/ seem as though it is simply providing do not demonstrate an employee’s 8 only must employers confi rm the intimidation. Notably, IER is available routine information and checking boxes, work authorization, the employer employment authorization of employees, to answer questions for both employers there are various pitfalls about which cannot hire such an individual. Federal but in some circumstances, they are and employees about employment employers need to be aware to avoid regulations defi ne knowledge not just as required to maintain such records even practices, and their hotlines are available employment discrimination claims4 from actual knowledge but also constructive 9 after the employee has left the company. on their homepage. Similarly, IER an employee and government penalties knowledge, but warn that knowledge provides technical guidance on the anti- In light of the economic downturn in the event of an audit. cannot be inferred from a person’s 7 due to the COVID-19 pandemic, an appearance or accent. See FORM I-9, Page 20 uptick in worksite inspections makes Pitfalls to Avoid While at fi rst blush, it may seem Rachel Baskin is a found- compliance with Form I-9 requirements First, in order to avoid employment prudent to “over document” in order ing member of Liv- a priority for employers and legal discrimination claims, employers must to shield an employer from an audit its Ayass Baskin PLLC, located in Rockville Cen- practitioners alike. become familiar with the “List of and fi nancial penalties, it is important tre. Rachel is the for- Employer’s Obligation Acceptable Documents” on the I-9 to understand that the Form I-9 mer NY Chapter Chair Form.5 Employers can provide this list requirements are designed to protect of the American Immi- gration Lawyers Associ- Specifi cally, the law requires to employees to ensure that employees both the employer and the employee. ation (AILA) and prac- employers to provide the most updated present acceptable documents, all of In fact, under no circumstances can tices immigration law exclusively, with a focus Form I-9 for new employees to complete which must be original documents; an an employer require an employee to on business and family within three days of the employee’s hire. employer cannot accept copies. USCIS present any specifi c documents to show immigration matters.

Save the Date 121ST ANNUAL DINNER GALA SAVE THE DATE! OF THE ASSOCIATION LAW DAY 2021 MAY 8, 2021 AT 6:00 PM Honoring

77th Distinguished Service Medallion Recipient Christopher T. McGrath, Esq. NCBA Past President, Past Co-Chair of WE CARE, and Partner Thursday, April 29, 2021 at Sullivan, Papain, Block, McGrath, Coffinas & Cannavo Additional details to follow. President's Award Recipient Hector Herrera

50-, 60-, and 70-year Honorees Nassau Lawyer January 2021 7 FOCUS: Second Circuit Provides Practitioners with LABOR LAW Clarity When Settling Unpaid Wage Cases

damages because no genuine dispute the need for such heightened employee District Court’s Role in Reviewing existed as to whether the employee protections remains even when the Attorneys’ Fees Is Limited was entitled to liquidated damages. employees are represented by counsel. Two months after Mei, the Second The question of whether parties could Litigants Can Avoid Cheeks by Circuit decided another FLSA-related privately settle FLSA claims when such Using Offer of Judgment issue in Fisher v. SD Protection Inc.,11 settlements resolved the genuine dispute concerning the limits on district courts’ Less than five years afterCheeks , the between the parties, however, remained powers when reviewing attorneys’ fees Second Circuit decided Mei Xing Yu unaddressed. for Cheeks fairness hearings. In Fisher, (“Mei”) v. Hasaki Restaurant, Inc..8 In The next year, the Supreme Court plaintiff and his former employer Mei, the Second Circuit answered one Matthew Weinick addressed that question, in part, and settled an FLSA action with a stipulated of the questions debated since Cheeks— again injected uncertainty into FLSA dismissal with prejudice, pursuant to n 2015, the Washington Post settlements when it ruled that private whether litigants can avoid Cheeks by Fed. R. Civ. P. 41, for $25,000. Under observed that unpaid wage and using some other rule of procedure settlements cannot be enforced when the the settlement agreement, $23,000 hours cases brought in federal dispute relates to whether the employer (i.e., a procedure other than a stipulated Icourts under the Fair Labor Standards 4 would be paid to Fisher’s attorneys for dismissal). The Second Circuit is covered by the FLSA. The support fees and costs, and $2,000 would be paid Act (“FLSA”) were growing faster than for this rule stems from the proposition answered that question affirmatively. 1 to Fisher himself. In other words, the any other category of cases. So, it was Mei filed an FLSA claim against that public policy prohibits employees attorneys’ fees would consume the bulk not surprising that on August 7, 2015, his employer. Early in the litigation, from bargaining away rights provided to of the settlement proceeds. New York’s employment law bar felt the employer made a Rule 68 offer them by Congress. The Court therefore Per Cheeks, the district court reviewed shockwaves after the Second Circuit of judgment, which Mei accepted. determined “neither wages nor the the settlement agreement for fairness, decided Cheeks v. Freeport Pancake House, damages for withholding them are The district court, however, ordered 2 including the reasonableness of Inc. Cheeks set the requirement that the parties to submit their settlement capable of reduction by compromise of attorneys’ fees and costs.12 Finding FLSA settlements be approved by a 5 agreement to the court for a fairness controversies over coverage.” the allotted attorneys’ fees to be court or the Department of Labor, review and approval per Cheeks. Both Fast forward to 2015, the Cheeks Court objectionable, the district court sua mandating a determination of the parties filed an interlocutory appeal, was presented with a question about sponte modified the distribution of the fairness of the settlement, including the disputing the propriety of the district FLSA settlements not before answered settlement funds as between plaintiff reasonableness of attorneys’ fees. court’s request. by the Supreme Court or a Circuit and his attorneys, awarding Fisher Whether it was simply human Court. The issue in Cheeks was whether The Second Circuit reversed, holding nature to react negatively to change, $15,055 (i.e., 60.22% of the settlement parties to an FLSA lawsuit can, pursuant that judicial approval is not required or whether Cheeks actually imposed amount) and his attorneys only $8,250 to Fed. R. Civ. P. 41(a)(1)(A)(ii), privately for Rule 68(a) offers of judgment which unfair requirements or undue hardships in fees and $1,695 in costs (i.e., 33% settle the case without approval by a settle FLSA claims.9 The Court of on litigants, it cannot be debated of the settlement amount). The district district court or the Department of Appeals explained that “[t]he plain that Cheeks left unanswered questions, court held, among other things, that as Labor (“DOL”). 6 purpose of Rule 68 is to encourage and employment attorneys uncertain a matter of policy, the maximum fee In Cheeks, after engaging in discovery, settlement and avoid litigation,” the about whether their FLSA settlements percentage that plaintiffs’ attorneys can the parties agreed on a private plain language of the Rule “leaves no would pass judicial scrutiny. Among earn from an FLSA case settlement is settlement and, pursuant to Rule 41(a) discretion in the district court to do other things, plaintiffs’ lawyers were 33% of the total settlement amount. (1)(A)(ii), filed a joint stipulation and anything but enter judgment once an particularly concerned about the court’s On appeal, the Second Circuit order of dismissal with prejudice. The offer has been accepted” because of role in reviewing attorneys’ fees, and rejected the district court’s imposition district court, finding FLSA actions to the Rule’s mandatory and absolute defense counsel were concerned that of a proportionality limit on recoverable be an exception to Rule 41, declined command that the clerk must enter agreements could not be confidential attorneys’ fees and held that “the district to accept the stipulation as submitted judgment, and the Act itself contains and had to be filed on a public docket. court abused its discretion in rewriting and directed the parties to “file a no language requiring judicial approval But, two debated questions were the settlement agreement by modifying copy of the settlement agreement on before an FLSA claim can be settled or 13 recently decided by the Second the allotment of the settlement funds.” otherwise dismissed. Circuit: (1) can litigants avoid Cheeks by the public docket,” “show cause why The Court agreed that whenever an The Second Circuit distinguished using rules of procedure other than a the proposed settlement reflects a FLSA settlement agreement includes an between private settlements and Rule stipulated dismissal, such as an offer of reasonable compromise of disputed allocation of attorneys’ fees and costs, 68(a) judgments, noting the latter are judgment, and (2) what is the court’s issues rather than a mere waiver of a district court is required to review the “publicly-filed, stipulated judgments role in determining the fairness of statutory rights brought about by an reasonableness of the allocation, but when attorneys’ fees in FLSA settlements. employer’s overreaching,” and “show between parties to an action brought a district court finds a proposed terms The answers and their implications are cause . . . explaining why the proposed in a court of competent jurisdiction unreasonable, “it cannot simply rewrite discussed below. settlement is fair and reasonable.” after litigation has been commenced the agreement.”14 The only two options The parties instead asked the court to pursuant to § 216(b) of the FLSA.” available for the district court are to either History of FLSA certify the question of whether FLSA The Court further emphasized that no Settlements and Cheeks reject the settlement agreement or allow actions are in fact an exception to Rule precedents support requiring judicial the parties to revise the agreement. In its Generally, the FLSA establishes rules 41’s general rule that allows parties to review of stipulated judgments. Absent discretion, the district court may suggest for minimum wage and overtime pay dismiss an action by filing a stipulation such support, the Second Circuit was to the parties an amount the court would for workers. The FLSA allows workers of dismissal. The district court ordered not ready to agree with the district court find reasonable under the circumstances, to sue employers for FLSA violations. a stay and certified the question for and “make th[e] interpretive leap in the But, unlike most lawsuits where parties interlocutory appeal. context of Rule 68(a) offers of judgment. See UNPAID WAGE, Page 19 The Court of Appeals agreed with the The Court of Appeals acknowledged can freely and privately settle the case, Matthew Weinick, part- seeds of uncertainty concerning whether district court that absent judicial or DOL the similarities between Cheeks and Mei, ner with Famighetti & parties could privately settle FLSA approval, employees cannot settle FLSA but declined to extend Cheeks’ holding Weinick, PLLC in Mel- ville, represents individ- claims were sown in 1945. claims via a private stipulated dismissal to offers of judgment, affirming that uals in employment lit- In Brooklyn Savings Bank v. O’Neil, an with prejudice.7 The court reasoned the decision in Cheeks is limited to only igation matters and employee was not paid overtime wages, that because of the FLSA’s unique Rule 41(a)(1)(A)(ii) dismissals with constitutional torts. He is 10 Chair of the NCBA Labor but the employer later paid the owed policy considerations such as ensuring prejudice. The Court further noted and Employment Law wages in exchange for a release of FLSA that workers receive fair pay and are that the Supreme Court has recently Committee and can be 3 reached at mbw@fwlaw- claims. The employee nonetheless sued adequately compensated for working underscored the importance of giving pllc.com or at http://liny- the employer for liquidated damages long hours, the FLSA is a uniquely the FLSA nothing more than a “fair cemploymentlaw.com. available under the FLSA. The Supreme protective statute and thus within reading.” In sum, Cheeks does not bar Ashkhen Oganesyan is a Hofstra Law student Court ruled that the employee could not Rule 41’s “applicable federal statute” parties from settling an FLSA case via a and law clerk with Famighetti & Weinick, PLLC and waive his entitlement to the liquidated exception. The court explained that Rule 68 offer of judgment. assisted in drafting this article. 8 January 2021 Nassau Lawyer FOCUS: End of the Tip Credit in the Miscellaneous LABOR LAW Industries

apply to restaurants, bars, hotels, or any (iii) “the allowance claimed by the miscellaneous industries were no longer businesses covered by the Hospitality employer is recorded on a weekly permitted to take a tip credit of $3.20, Industry Wage Order (“Hospitality basis as a separate item in the but rather 50% of that value, $1.60.15 Wage Order”).2 wage record.”4 As of December 31, 2020, the tip Tip Credit for Miscellaneous Industries If an employer satisfied each of the credit was completely eliminated and all above-referenced conditions and the employers subject to the Miscellaneous New York is often considered one of employee’s weekly average tips brought Wage Order were no longer permitted the most progressive jurisdictions in the his total pay above minimum wage, to consider tips and gratuities as part country when it comes to protections the employer was permitted to take of their employee’s minimum wage. Michael A. Berger for workers. While the fight for a $15 an allowance for tips.5 The amount Instead, employers are required to pay federal minimum wage rages across uring the height of the COVID- of the allowance varied based on the their employees a cash wage of the 19 pandemic, Governor Andrew the country, New York has already employer’s number of employees and full New York State minimum wage, Cuomo seemingly issued implemented annual wage increases geographic location.6 For example, until regardless of how much their employees 16 Dnew Executive Orders weekly placing that will bring workers in every region June 29, 2020, an employer in New receive in tips. restrictions on businesses. Between all of New York State to a $15 per hour York City with ten or fewer employees In reaching the decision to of the Executive Orders, mandating minimum wage. was permitted to take a tip credit of recommend the elimination of the tip which businesses were permitted to While all employers must pay their $2.25 “for an employee whose weekly credit, the New York State Department open and the maximum capacity at workers at least the New York State average of tips received is between such of Labor cited various concerns which they could operate, one of the minimum wage, until recently, employers Low tip amount [$2.25] and the High including “widespread confusion about significant changes affecting New York governed by the Miscellaneous Wage tip amount [$3.65]” and a tip credit of whether or not [workers] are entitled State businesses that has been overlooked Order were subject to complicated and $3.65 “for an employee whose weekly to earn minimum wage,” “rampant is the phasing out of the tip credit for confusing regulations that permitted average of tips received equals or wage theft in particular industries,” employers covered by the Minimum them to take a tip credit against exceeds such High tip amount [$3.65].”7 and a concern that tip credits are 17 Wage Order for Miscellaneous Industries the required State minimum wage, In contrast, if the employer was located inappropriate in certain industries. and Occupations (the “Miscellaneous provided eligible employers met certain in Nassau County or Suffolk County, the The Department of Labor’s 3 Wage Order”). requirements. Pursuant to section 142- tip credits available ranged from $1.95 recommendation will likely resolve some As of December 31, 2020, in addition 2.5(b) of the New York Codes, Rules on the low end to $3.20 on the high of these concerns. The elimination of a to the ever-changing conditions and Regulations (“N.Y.C.R.R.”), tips or end.8 In upstate counties, the tip credits sliding scale for allowances depending under which businesses must operate, gratuities “may be considered a part of ranged from $1.75 to $2.90.9 on the amount of tips received and the businesses subject to the Miscellaneous the minimum wage” so long as: employer’s number of employees will Elimination of Tip Credit in Wage Order are no longer permitted (i) the occupation was one in which alleviate confusion among workers as to to take a tip credit against their tips “have customarily and Miscellaneous Industries their wages and may reduce inadvertent employees’ wages. This change will usually constituted a part of the At the end of 2017, Governor wage theft resulting from the complex have implications for many employers, employee’s remuneration”; Cuomo directed the New York State calculation of allowances. including but not limited to, those in (ii) there is substantial evidence that Labor Commission to determine the Hospitality Industry the nail salon, hairdresser, car wash, the employee’s tips at least equal or impact of tip credits on employers and valet parking industries.1 As exceed the allowance claimed by and workers across the State and It is important to note the discussed below, this change will not the employer; and recommend a solution.10 After holding Miscellaneous Wage Order and hearings and receiving testimony from its elimination of the tip credit in In Brief business owners, business groups, miscellaneous industries will not and workers, the Labor Commission affect employees and employers in the recommended the elimination of the hospitality industry. Restaurants and In December, Ronald their outstanding efforts to tip credit in the industries covered by hotels can still take the tip credit from Fatoullah of Ronald encourage live and deceased the Miscellaneous Wage Order.11 In their employees’ wages, provided they Fatoullah & Associates organ donations and tissue response to this recommendation, on meet the requirements set forth in the presented “Strategic Use donations. 18 December 31, 2019, the Commissioner Hospitality Wage Order. of Medicaid Trusts” for the Jennifer B. Cona of Labor, Roberta Reardon, adopted the While amendments to the tip credit National Business Institute. In announced a re-branding recommendation and ordered, pursuant in the Hospitality Wage Order may collaboration with Concierge and reorganization of the to New York Labor Law § 659(2), that be forthcoming, restaurants and Health and 305 West End law firm she founded in section 142-2.21 of the N.Y.C.R.R. be hotels need not eliminate tip credits in Assisted Living in New York 1998. Effective immediately, amended as follows: calculating employees’ cash wage for the City, Ron also presented the firm formerly known as Notwithstanding any other time being. However, with the start of “Managing Family Dynamics Marian C. Rice Genser Dubow Genser Cona the new year, employers must nevertheless in The Estate Planning LLP, will now be known as provision contained in this part, tips be aware of the new minimum wage on Process.” Cona Elder Law PLLC, making it easier or gratuities, shall not be considered Long Island and the new cash wage, Desiree M. Gargano, an Associate to identify the practice area. a part of the minimum wage on or tip credit and tip threshold beginning in the Employment Law and Litigation after December 31, 2020, provided, however, that no employer shall December 31, 2020.19 Practice Groups at Certilman Balin, was The In Brief column is compiled by Marian C. Rice, a named to the 2021 Best Lawyers, “Ones partner at the Garden City law firm L’Abbate Balkan claim a tip allowance in excess 1. See Governor Cuomo Announces End of Subminimum Colavita & Contini, LLP, where she chairs the Attor- to Watch.” of fifty percent of the applicable Wage Across Miscellaneous Industries Statewide, ney Professional Liability Practice Group. In addition allowances listed in this part and Governor.NY.gov (Dec. 31, 2019), https://on.ny. Russell I. Marnell of the Marnell to representing attorneys for 35 years, Ms. Rice is a gov/3qH6423. The miscellaneous industries include Law Group has been named to the New Past President of NCBA. rounded to the nearest five cents on all industries other than hospitality, farmworkers, or after June 30, 2020.12 York Metro Super Lawyers list for the Please email your submissions to nassaulawyer@ sixth year in a row in the practice area nassaubar.org with subject line: IN BRIEF In doing so, the Department of See TIP CREDIT, Page 17 of Family Law. Marnell is also AV-rated Labor phased in the elimination of Michael A. Berger is an by Martindale Hubbell and listed in its The Nassau Lawyer welcomes submissions the tip credit over the span of one associate in the Employ- to the IN BRIEF column announcing news, ment and Labor Practice Bar Register of Pre-Eminent Lawyers. In events, and recent accomplishments of year, purportedly to provide businesses Group at Forchelli Dee- addition, he has earned an Avvo rating its current members. Due to space lim- adequate time to adjust.13 Employers gan Terrana LLP. itations, submissions may be edited for of 10 (out of 10). length and content. were permitted to take the full tip NCBA Member, Bill Corbett and credit from January 1, 2020 to June Ann, his wife, were among four honorees PLEASE NOTE: All submissions to the IN 29, 2020 and 50% tip credit from June BRIEF column must be made as WORD 14 recognized at the 7th Annual Hearts DOCUMENTS. 30, 2020 to December 30, 2020. As for Russ Awards Virtual Program for a result, Long Island employers in the Nassau Lawyer January 2021 9 FOCUS: Recruiting Diverse Public Sector Employees LABOR LAW

Prohibited Deviation Troopers solely on the basis of their to apply for the examinations that from Established Lists ranking on the existing eligible list, ultimately form the basis of established With the exception of the use the Appellate Division held that the lists. New York State Superintendent can In 2020, Governor Cuomo issued of properly announced bi-lingual 18 competitive exams, the Appellate exercise the power of appointment Executive Order 203, which Division cited Civil Service Law when “only through the process of established the “Committed to a 15 it disallowed an appointing authority competitive examination.” Further, New York State Police Reform and to give preference to candidates on even though “examination scores need Reinvention Collaboration.” To the basis of fl uency. The Second not always constitute the sole basis for implement Executive Order 203, New Department prohibited Suff olk County determining fi tness and…some leeway York State issued Resources and Guides for Public Offi cials and Citizens.19 Martha Krisel from adding a new qualifi cation of must be accorded to the appointing fl uency/profi ciency in Spanish after authority in making fi nal selection” Focusing specifi cally on law enforcement 10 the answer to the “narrow question recruitment, in its section entitled General Rule and certifi cation of a list of eligibles. as to whether the Superintendent “Recruiting a Diverse Workforce,” the Limited Exceptions Specifi cally, the Second Department reviewed a challenge to the Police may constitutionally depart from the lack of awareness of opportunities is nder New York State Civil Department’s “determination to appoint apparent results of an examination to identifi ed as an impediment. Service Law, public sector out of turn three Spanish-speaking the extent of making appointments Education and outreach in advance employees are hired through eligibles…on the basis of their linguistic that allow a preference to ethnic of the closing date of the application Ucompetitive testing. After applying 11 16 period increases the pool of eligibles ability.” In this case, Suff olk County minorities and females…is no.” for, qualifying for, and passing a used oral examination, subsequent to The Third Department relied upon legally and consistent with Civil Service Civil Service exam, the applicant is the list establishment, to identify fl uent the fact that “both males and females Law. Toward that end, the Commission included on an established list from candidates. The Second Department took part in the examination on an works directly with Nassau County’s which public sector employers recruit. rejected this methodology, even though equal footing. Thus, respondents use of Offi ces of Asian-American, Hispanic That established list is based upon it recognized the need for diversity: a sexually mixed eligible list can only See RECRUITING, Page 17 the universe of applicants who passed The record adequately signify that the position of Trooper is the exam and meet requirements that demonstrates the need for bilingual not one for which the work demands Martha Krisel is the Exec- include residency. The list has a fi xed 17 utive Director of the Nas- offi cers to adequately service individuals of one sex.” sau County Civil Service date, expiring no less than one year Suff olk’s substantial Spanish- Importance of Commission, NCBA Past but no more than four years after its speaking community, as well as President, and COVID-19 1 Pre-Application Recruitment Task Force Chair. establishment. the fact that normal recruitment In Nassau County, when an programs have so far failed to With the constraints of Civil Service 2 appointing authority has a vacant satisfy this need. Be that as it may, Law identifi ed in this article, diversity position, it submits a formal request an attempt to impose other and strategies must focus upon recruitment to the Nassau County Civil Service further qualifi cations, not listed in designed to attract a diverse population Commission (Civil Service) for the the examination notice, after the current established list. That appointing certifi cation of the list of eligibles is authority uses that list to “canvass,” palpably improper and is not to be which simply means that it notifi es condoned.12 applicants, starting with those that CALL FOR scored the highest, of the opportunity. Similarly, the Third Department An applicant that has been canvassed rejected appointment procedures NOMINATIONS subsequent to the New York State can decline the position under certain The Nominating Committee welcomes applications for 3 Troopers’ announcement of a two- circumstances. nominations to the following Nassau County Bar Association When the appointing authority part competitive examination that offices for the 2021-2022 year: interviews or evaluates applicants, it assessed a 65% weight to written performance and a 35% weight to is entitled to non-select (reject) two 13 President-Elect Vice President Treasurer applicants for any reason at all,4 other physical performance. When New York State funding allowed the hiring than an illegal reason. The appointing Secretary Director authority must, however, select one of of two sets of new troopers (50 new Troopers, and 50 new Troopers to the fi rst three applicants; this is referred Applications are welcome for nominations to serve on the to as the “Rule of Three.”5 Should police interstate highways), the trial court held that the established list Nassau County Bar Association Board of Directors. There are one, two, or all three applicants decline eight (8) available director seats, each is for a three-year term. the position, the appointing authority controlled. The Third Department summarized the Troopers’ strategy: continues to canvass, moving through The Nominating Committee invites applications for the list from highest to lowest grade However, instead of off ering nominations to the following offices of the Nassau Academy order. And, of course, available funding appointment to as many of those of Law for the 2021-2022 year: impacts the ability of the appointing ranked highest on the eligible list as would fi ll this complement of authority to work its way—in grade Dean Associate Dean Assistant Dean (2) order—through the established list. Troopers, respondents proposed Commitments to diversifying the to appoint only 75 candidates in Secretary Treasurer Counsel public sector work force do not play a that fashion. In order to further an role in the canvass process, with limited avowed goal of procuring greater NCBA members interested in applying for any of the above nominations, and specifi c exceptions. For example, representation of certain minorities or in submitting suggestions for such nominations, a position that includes bathing female and women in the State police, it are invited to submit such information to: children can be limited to the selection was decided that the remaining Elena Karabatos of a female applicant.6 In addition, 25 candidates would be obtained by separately appointing the 15 Nassau County Bar Association veteran status entitles applicants to extra 15th & West Streets 7 highest ranked ‘ethnic minority’ points. And, religious accommodations Mineola, NY 11501 for test rescheduling must be granted eligibles and the 10 highest ranked upon request.8 Also, applicants can female eligibles without regard to their individual placement among JANUARY 25, 2021 DEADLINE FOR be hired without competitive testing 14 when an arm of the New York State all others so listed. ALL NOMINATIONS. Department of Education (ACCES-VR) Rejecting that strategy and affi rming certifi es a disability.9 the trial court’s direction to appoint 10 January 2021 Nassau Lawyer PPRROOGGRRAAMM CALENDAR

Pre-registration is REQUIRED for all Academy programs. Go to nassaubar.org and click on CALENDAR OF EVENTS to register. CLE material, forms, and zoom link will be sent to pre-registered attendees 24 hours before program. All programs will be offered via ZOOM unless otherwise noted. January 11, 2021 January 28, 2021 Dean’s Hour: U.S. Supreme Court 2019-20 Review Dean’s Hour: Signed and Sworn—A Notary Primer During the Program sponsored by NCBA Corporate Partner Champion Pandemic Age Office Suites Program sponsored by NCBA Corporate Partner Champion 12:30-1:30PM Office Suites 1 credit in professional practice 12:30-1:30PM 1 credit in ethics January 13, 2021 Program open to non-attorneys; $20 fee applies Dean’s Hour: Understanding the New Child Parent Security Act and Second Parent Adoptions February 3, 2021 Program sponsored by NCBA Corporate Partner Champion Dean’s Hour: Office Suites Spirit Which Prizes Liberty: Abraham Lincoln 1:00-2:00PM Program sponsored by NCBA Corporate Partner Champion 1 credit in professional practice Office Suites Skills credit available for newly admitted attorneys 12:30-1:30PM 1 credit in professional practice January 20, 2021 Dean’s Hour: PPP Loan Is a Fake! How to Determine if a February 4, 2021 Paycheck Protection Program Loan Is Fraudulent and How to Recent Rules in Real Estate: An Update on Real Estate Law Handle a Related Criminal Investigation Trends since the Pandemic Program sponsored by NCBA Corporate Partner Champion Program sponsored by NCBA Corporate Partner Champion Office Suites Office Suites 12:30-1:30PM 5:30-8:30PM 1 credit in professional practice 3 credits in professional practice Skills credits are available for newly admitted attorneys Skills credit are available for newly admitted attorneys

January 22, 2021 February 10, 2021 Dean’s Hour: Bankruptcy and Divorce Dean’s Hour: Running A Lean Practice In 2021 Program sponsored by NCBA Corporate Partner Champion Program sponsored by NCBA Corporate Partner Champion Office Suites and Cardinal Financial Company Office Suites 12:30-1:30PM 12:15-1:15PM 1 credit in professional practice 1 credit in professional practice. Skills credits available for newly admitted attorneys Skills credits are available for newly admitted attorneys

January 26, 2021 Mortgage Foreclosure Referee: Part 36 Certified Training 6:00-8:00PM 2 credits in professional practice Program is excluded from free CLE offer. Pricing: $100 NCBA Members; $200 Non-Members Nassau Lawyer January 2021 11 PROGRAMM CCAALLEENNDDAARR

January 26, 2021 Mortgage Foreclosure Referee: Part 36 Certified Training 6:00-8:00PM 2 credits in professional practice Program is excluded from free CLE offer. Pricing: $100 NCBA Members; $200 Non-Members 12 January 2021 Nassau Lawyer FOCUS: A Few Thoughts on Making Technology a TECHNOLOGY Lawyer’s Best Friend

using the law firm’s website. information pertaining to your clients. Some of the features include For instance, you could designate The damage that someone could cause • The ability to send professional Thursdays from 1:00 pm to 6:00 pm by getting into your accounts could be email from your business web for client updates and only allow your troubling for you (and your malpractice address ([email protected]). scheduler to make appointments during carrier). • 30GB of storage which allows you that time frame. If you set expectations Several years ago, I decided to to store information on the cloud so with the client as soon as you are change every password I had to a it may be accessed by any device. retained, they will know when you are 24-digit automatically generated available to speak with them and when code containing numbers, letters, and Advanced administrative controls Scott J. Limmer they should schedule an appointment. symbols. I did this with the help of a that allow you to add and remove users, add two step verification and n today’s hectic legal climate, Of course, there will always be password manager which generated the single sign on for your employees. technology can make or break your emergencies requiring you to take the password, filled in the website, and then • Mobile device management that practice. Those who have been able client’s call right then and there. But saved it in its database. Ito adapt during the pandemic, have with an online appointment scheduler, You want to get a password manager allows you to keep your Law Offices been those who have been able to run you are able to exercise greater control that will work on all devices. All you data secure. You can easily locate a virtual practice with the help of video over your schedule, as opposed to your need to do then is remember the master devices, require passwords and erase conferencing. But there are other tools clients setting your schedule for you. password for the app, as opposed to all data if an employee goes rogue. available that will empower you to run Virtual Receptionist your log-ins. Once set, it is very easy to The ability to use all their apps and maintain. a leaner and more efficient practice. have your business look and be run in a Using a virtual receptionist means It can also save common online Below are some suggestions that might professional way is most definitely worth never having to worry about anyone information, speeding up the prove helpful. calling in sick. It means you will no information you fill out frequently, like the $5.00 a month charge. E-signature longer have to take those after-hours your home or work address or credit Cloud Backup calls yourself. And it means never This may sound familiar. After a video card information. Some of the more missing a call. You must choose among the following consultation with a new client, you are common password managers are Not only do you have that security, options: told later that day that you’re hired. So 1Password, Last Pass, and Keeper. but a virtual receptionist can also be A) You can save all your documents you pull up a standard retainer, make used for tasks such as responding to Wi-Fi Speed and important items in a folder some edits, and email it to the client clients or handling information for Having reliable internet reception is with instructions to print, sign, scan, and on your desktop that can only be intake. You can set one up with a script a must wherever you are working from. email back. accessed from that computer, for answering your phone and giving Many households have multiple people But what if the client doesn’t have B) You have a server in your office that instructions on how to contact you, on numerous devices at the same time ready access to a printer? You are now you can log into from the office or based on the information the virtual using up all sorts of data. (I have used up left wondering how long it will take remotely, or receptionist is given. to four internet connected devices at one for them to retain you. As a business C) You can save all your documents You can have it put calls through time, while my wife and kids have done owner, you want the sign-up process to to you based on any criteria you set, the same). and important items in a folder go as smoothly as possible. The most or you can have it take messages If you feel your connection is slow or on your desktop that will be saved convenient and reliable way to have that you can check at the end of the your video conference app is unstable or in the cloud and can be accessed a client sign a retainer is to use an day. It all depends on an individual freezing, start by checking your speed. by any device with an internet E-signature app. attorney’s needs and preferences. There are many free apps to test your connection. An E-signature app can automate the Ruby Receptionists comes highly download and upload speeds, but the Using the cloud is a no-brainer. It not entire process creating documents with recommended, but other reliable most widely used is www.speedtest.com. only gives you unfettered access, but it fields that can be customized and then services are Map Communications, Lex You should run it at various times during is also secure and if your device breaks, sent off. Clients can review the retainer Reception and AnswerForce. the day to see what kind of speeds you agreement and sign with their mouse or you don’t lose anything, because it’s all Google My Business are getting. If the speed is not what your in the cloud. When you get your new by checking off a box. provider promised, then determine if device, log in, and there are your files. E-signatures can be used on a wide This free local marketing tool allows the problem is with your devices or with It also alleviates the need to maintain array of documents. It also speeds business owners and marketers to the provider. up the process, since it takes far less manage how their business is displayed. expensive and unsecure servers in your time than mailing. E-signatures is also If you own a law practice, this is a must. Mesh Wi-Fi office. Popular cloud solutions are more client-friendly. Some of the most The reality is that Google My Business is Like having good bandwidth, you Google Drive, Dropbox, Apple iCloud, popular apps are Docusign, eSignature the phone book of the internet, so if you need to be able to have access to that Box and Amazon Storage. and Signnow. want to be found, you must have a listing. bandwidth from all areas of your home. The legal landscape is ever changing, On-Line Appointment Scheduler Having a Google My Business account You may want to be able to access hard and the pace of that change is gives you the ability to list your business to reach places like your basement, attic, unpredictable. If the current pandemic All attorneys know the feeling of location on Google Maps and for local or backyard so that you can easily move has taught us anything, it is that your sitting down to begin an important search results. You can also display other around without being concerned about legal practice must adapt to new project. As soon as you start to really important information about your office, dropping service. circumstances if it is to survive. New dig in, you are interrupted by clients such as opening/closing times, contact The best purchase I made when the wanting an update on their cases. details, or a link to your website. pandemic started was a mesh wi-fi technologies offer valuable tools not Naturally you feel obligated to take their It also gives clients the ability to leave system to give my home and backyard only to meet these challenges but enable calls. Before you know it, you never reviews, which boosts your appeal to full coverage. This was accomplished your office to thrive no matter what may really got to the original project you potential new clients. And it’s a free using a base station and two modules come. wanted to address. service. Again remember, you can’t be that are plugged into outlets around the Scott J. Limmer concen- Perhaps the perfect solution to this seen if you aren’t on Google. house. It is a one-time cost that makes trates his practice in the situation is an online appointment areas of criminal defense Password Manager it possible to take your device out to the and college discipline scheduler. Countless attorneys’ backyard to do some work. defense. He is the co-host professional and personal lives have been The world has come a long way of the podcast “Reboot Google Suite Your Law Practice.” He is improved by using this type of device. An from picking your favorite stuffed also Chair of the NCBA attorney can use it to designate specific animal or your kids’ initials as your G Suite is a collection of enterprise- General, Solo, and Small times during the week when they will be passwords. Your many accounts contain based products offered by Google such Law Firm Practice Man- agement Committee. available to speak with clients and allow sensitive information about yourself, as Gmail, Drive, Docs, Sheets, and so Scott can be reached at the client to schedule an appointment by your practice, and most importantly on—to help streamline your business. [email protected]. Nassau Lawyer January 2021 13 FOCUS: A Primer on Affirmative Action for LABOR LAW Construction Contractors

the contract sum is at least $10,000.4 criteria are met and where the employer geared toward protected veterans in this Relevant exceptions include contracts has more than 50 employees and a instance.21 Additionally, contractors for work to be performed outside the covered contract for least $50,000.12 must list employment opportunities with United States by workers from outside Under the Rehabilitation Act and employment service delivery systems the United States and contractors giving its regulations, there is a similar two- so qualified covered veterans may be hiring preference to Native American year record-keeping requirement referred,22 and finally, contractors must Indians with respect to projects on concerning personnel actions, with the set benchmarks for hiring qualified or near Native American Indian same abbreviated period for smaller covered veterans, which may be reservations.5 Given the narrow field employers.13 Above and beyond calculated in alternative ways, and retain John Caravella of applicable exemptions, essentially that, however, the regulations require records concerning their setting of 23 ll businesses must avoid all construction contracts with federal contractors to expressly invite applicants benchmarks for three years. authorities will be subject to equal and employees to self-identify as a While the foregoing laws concern discriminating against 14 members of protected classes opportunity and affirmative action person with a disability. Where the size employment actions vis-à-vis minority of the employer and contract necessitate Awhen making employment decisions, requirements as to race, color, religion, groups, contractors must nevertheless a written affirmative action plan, its avoid giving the impression of hostility but federal contractors, including sex, sexual orientation, gender identity, requirements include: to what might be considered “majority” construction contractors, must also take or national origin. • Ensuring that personnel practices groups. Recently, President Donald J. affirmative steps to ensure that they hire Where Executive Order 11246 allow for the consideration of Trump signed into law Executive Order and promote members of protected applies, the contractor must initially applicants and employees with 13950, which contains several provisions classes. As discussed below, these maintain personnel records for up to disabilities for hiring or promotion; relevant to affirmative action programs affirmative action requirements derive two years from the date of making the • Ensuring that physical and mental and applicable to federal construction from several discrete legal authorities record or the personnel action involved, job requirements that might screen contracts. With respect to all federal and carry a range of undesirable including not only documentation as out persons with disabilities are construction contracts except those sanctions for violators. to employees but also job applications, related to the job in question and exempt from Executive Order 11246, Moreover, recent changes in postings, and submissions from 6 born of business necessity; contractors are forbidden from using antidiscrimination law suggest a growing applicants. The contractor must be • Addressing performance problems “any workplace training that inculcates tension between affirmative action able to identify the gender, race, and of individuals with known in [their] employees any form of race and color- and gender-blindness that ethnicity of employees and applicants 7 disabilities by inquiring whether the or sex stereotyping or any form of race may further complicate matters for in connection with these records. problem is related to the disability or sex scapegoating[.]”24 Race or sex construction contractors in the future. While construction contractors are not and whether the individual requires stereotyping is defined as “ascribing While the laws discussed herein apply required to develop a written affirmative a reasonable accommodation; character traits, moral and ethical codes, to all federal contractors, provisions action plan under Executive Order 8 • Specifically recruiting qualified privileges, status, or beliefs to a race or sex, vary between construction and non- 11246 and its regulations, they must take affirmative actions including the individuals with disabilities, such as or to an individual because of his or her construction contractors. This article by sharing job openings with a state race or sex.”25 Race or sex scapegoating is focuses on affirmative action as it following: • Making employment opportunities developmental services office or a defined as “assigning fault, blame, or bias pertains to construction contractors in private organization that specializes to a race or sex, or to members of a race particular. known to minority and female recruitment sources; in training and placement of or sex, or to an individual because of his There are three primary sources individuals with disabilities; and or her race or sex.”26 of affirmative action requirements: • Reviewing equal employment opportunity policies with all • Maintaining records of hiring Executive Order 13950 might seem Executive Order 11246; the activities with respect to individuals like it is at odds with a statutory and Rehabilitation Act of 1973; and the minority and female employees; 15 • Specifically directing recruitment with disabilities for three years. regulatory scheme geared toward Vietnam Era Veterans’ Readjustment affording advancement opportunities for Assistance Act of 1974 (the efforts to minority, female, VEVRAA and community organizations, minority workers, but these provisions “VEVRAA”). As opposed to Executive Order 11246 schools with minority and female can be reconciled. Executive Order and the Rehabilitation Act, VEVRAA Executive Order 11246 students, and minority and 13950 does not mandate treatment of has its own, distinct application. workers regardless of race or sex, which Executive Order 11246, as amended, female recruitment and training Construction contracts with the would of course preclude affirmative applies to equal opportunity regardless organizations; federal government and its agencies action. Rather, it requires neutrality of race, color, religion, sex, sexual • Encouraging present minority and of more than $150,000 are subject to in training, which cannot assign any orientation, gender identity, or national female employees to recruit other VEVRAA.16 Like the laws discussed minorities and women; and particular characteristics, including fault origin and requires federal contractors above, VEVRAA applies only to for the necessity of affirmative action • Annually evaluating all minority to take affirmative action to ensure that employment activities within the United laws, to any race or gender. Ultimately, and female employees for 17 applicants are employed, and employees States, and like the Rehabilitation Act, both as a matter of compliance with promotional opportunities and are treated during employment without the requirement for a written affirmative Executive Order 13950 and avoiding 1 encouraging minority and female regard to the foregoing classes. The action plan only applies to contractors workplace conflict, construction employees to seek or prepare 18 Rehabilitation Act of 1973 requires with more than 50 employees. contractors should discuss race and federal contractors to take affirmative for such opportunities through VEVRAA requires substantially 9 action to employ and advance in training. similar actions to those under the See A PRIMER, Page 19 employment qualified individuals with Rehabilitation Act, but for the fact that 2 Rehabilitation Act of 1973 John Caravella is a con- disabilities. The VEVRAA requires they apply to covered veterans rather struction attorney and federal contractors to take affirmative Much like Executive Order 11246, formerly practicing proj- than individuals with disabilities. The ect architect at The Law action to employ and advance in the Rehabilitation Act applies to two-year record-keeping requirements Office of John Caravella, employment qualified covered veterans, construction contracts where the for general personnel records are the P.C., representing archi- tects, engineers, contrac- including disabled veterans and recently contract sum is more than $10,000, same, with the same reduced record- tors, subcontractors, and separated veterans.3 including subcontracts where the project keeping requirement for smaller owners in all phases of The three schemes of affirmative owner is the federal government or one employers.19 Contractors must invite contract preparation, lit- 10 igation, and arbitration action requirements affect construction of its agencies. There is also a similar applicants and employees to self-identify across New York and Flor- contractors differently and impose exclusion for employment activities as covered veterans,20 and where ida. He also serves as an 11 arbitrator to the Amer- different requirements. Executive Order outside the United States. Unlike required, an affirmative action plan must ican Arbitration Asso- 11246’s coverage spans all construction Executive Order 11246, however, the ensure that personnel processes permit ciation Construction contracts with the federal government Rehabilitation Act imposes greater advancement, direct outreach efforts Industry Panel. Mr. Cara- vella can be reached at and its agencies, and all contracts requirements, in the form of a written to appropriate agencies, and maintain John@LIConstructionLaw. undertaken with federal funds, where affirmative action plan, where the above hiring records for three years, albeit com or (516) 462-7051. 14 January 2021 Nassau Lawyer FOCUS: Curt Flood: Vindication in Defeat SPORTS & ENTERTAINMENT

Curt Flood was a transformative Marvin Miller, the Executive Director kind exemption for MLB not accorded figure. A man of character and courage, of the Major League Baseball Players boxing, football, or basketball.17 he cut across all boundaries– sports, Association (MLBPA). This anomaly was affirmed thirty economics, race, culture. As with Miller told him that a lawsuit would years later by the Warren Court in Muhammed Ali, Flood put it all on-the- be costly, would take years to resolve Toolson v. NY Yankees.18 This case dealt line. The difference being that Ali won and, even if he did win, it was inevitable specifically with the reserve clause. With his Supreme Court case, while Flood lost that he would not receive any substantial far less justification than Holmes, the in an excruciatingly close decision. money damages.12 He was also Court said that Congress has the power Inspired by Jackie Robinson, Flood giving up any future association with to subject baseball to the anti-trust laws went to Mississippi in 1962 in support of MLB. Flood remained steadfast. He but hasn’t. the NAACP.3 Enduring the indignities decided to go forward regardless of the Determining Congressional intent Rudy Carmenaty of Jim Crow, African-American players, consequences. based upon an absence of legislative I lost money, coaching jobs, a shot in those days, could not stay in the Although Flood received the backing action, the Court took it as a tacit at the Hall of Fame. But when you same hotel as their white teammates. of the MLBPA for his lawsuit, the acknowledgement that MLB is not weigh that against all the things Flood would lead the effort to have the players themselves were less than subject to the anti-trust laws. In effect, that are really and truly important, Cardinals integrate their spring training enthusiastic. Most were not willing baseball’s exemption stands because things that are deep inside you, then facilities in Florida. to jeopardize their own careers and, Congress has failed to correct an earlier Supreme Court precedent. I think I’ve succeeded. In 1964, following the Cardinals’ frankly, many were all too willing 4 On June 19, 1972 the Court ruled 5-3 — Curt Flood World Series victory, Flood rented a participants in the system that governed house for his family in the Bay Area the game.13 in favor of MLB.19 Justice Lewis Powell recused himself because he owned lthough not widely heralded, suburb of Alamo. They were barred The case of Flood v. Kuhn was Anheuser-Busch stock.20 Before Powell’s Curt Flood is quite probably from the home by the owner with a commenced in the SDNY in 14 recusal there was, after an initial vote, the most impactful figure loaded shotgun, who didn’t know Flood 1970. Kuhn was Bowie Kuhn, the a 5-4 majority in Flood’s favor.21 With Ain American sports during the last was African-American when the lease Commissioner of Baseball, who had 5 Powell out, the Court was deadlocked half-century. Flood transformed the was signed. Flood sued and won. previously been MLB’s legal counsel. 4-4. Chief Justice Warren Burger then sporting world, but he did so by his The premier defensive centerfielder of Kuhn and the owners were determined switched sides for a 5-3 majority.22 actions in the courtroom. his era, Flood went a record 568 chances to keep things as they had always been. The majority opinion by Justice In 1969 Flood refused a trade from without committing a single error for a The owners argued that the 6 elimination of the reserve system would Blackmun is simply absurd. The the Cardinals to the Phillies.1 Bound record of 226 consecutive games. But in the 1968 World Series, Flood was undermine competitiveness by allowing Court ruled in baseball’s favor, but by the reserve clause, paragraph 10(A) blamed for the loss. Misplaying a line the rich teams to sign the best free admitted the grounds for the anti-trust of the uniform contract signed by all drive by Jim Northrup of the Detroit agents. They added that not having the exemption were specious. MLB was professional ballplayers, his options were Tigers, the error unfairly became the reserve clause might foster corruption indeed interstate commerce. Baseball’s limited—either go to Philadelphia or defining moment of his career. among the players. After all, a player exemption from the anti-trust laws is an retire from the game.2 Finding neither The play marked the beginning of might throw a game to curry favor with aberration. acceptable, Flood decided to take on Flood’s decline. After the series, he got another team at contract time. Blackmun’s decision acknowledges the baseball’s powers-that-be. involved in a contract dispute. Flood MLB’s best argument was that free error created by the Court, but leaves Flood filed suit asserting the reserve made $72,500 in 1968.7 In 1969, he agency undermined the investment it up to Congress to remedy it. Flood’s system constituted a conspiracy in held out for $100,000 ultimately settling made in player development as star arguments were given short shrift. The violation of the Sherman Anti-Trust for $90,000.8 By the end of the 1969 players could leave without any opinion is not merely flawed, but in a Act as well as a form of involuntary season, he would be gone from St. Louis. corresponding compensation. A similar mechanical application of stare decisis servitude in violation of the Thirteenth it doubles down on the prior mistakes I often wondered what I would argument was made in the NFL Amendment. He was up against not enunciated in Federal Baseball and Toolson. do if I were ever traded because it resulting in the now defunct “Rozelle only the full weight of Major League Holmes’ 1922 decision repeatedly has happened many, many times, and Rule,” wherein the Commissioner had Baseball (MLB), but also half-century of been misread by later courts to create the it was ‘part of the game.’ And then the authority to award draft choices thus Supreme Court precedent. 15 paradigm that it is the intent of Congress, suddenly it happened to me. … diminishing the value of free agency. Flood risked it all, losing in the by its inaction, not to regulate MLB. Since by God, this is America, and I’m Southern District of New York (SDNY), If there is any inconsistency Congress is unwilling to act, subsequent a human being. I’m not a piece of at the 2nd Circuit Court of Appeals and, or illogic in all this, it is an courts must somehow continue to adhere ultimately, before the Supreme Court. property. I’m not a consignment of inconsistency and illogic of long to this flawed precedent. Once a celebrated athlete, he became goods. standing that is to be remedied by In his dissent, Justice Douglas, seeing an outcast. But his legal challenge — Curt Flood the Congress, and not by this Court. the situation clearly, notes that “Baseball help transform the landscape of labor — Harry Blackmun, is today big business that is packaged relations in baseball and beyond. On October 8, 1969, Flood was told majority opinion in Flood v Kuhn with beer, with broadcasting, and with The current system of free agency by Jim Toomey, assistant to GM Bing other industries.”23 As such, Federal 9 The owners, whose records many was not brought about by Flood’s Devine, that he had been traded. He Baseball is a “derelict in the stream of law was upset he got the news from a “mid- say reveal a proclivity for predatory 24 lawsuit. Rather it was the result of 10 that we, its creator, should remove.” labor arbitration that emancipated level front office coffee drinker.” As the practices, do not come to us with Douglas, perhaps lamented joining the ballplayer. But Flood served as the co-captain of a team that had won two equities. The equities are with the opinion in Toolson twenty years catalyst, and he deserves the recognition World Series titles, he felt he deserved the victims of the reserve clause. prior, asserts that the Court created the that his sacrifice merits. more respect. I use the word “victims” in the problem and the Court can and should The Phillies offered Flood a salary of Sherman Act sense, since a contract do away with it. Justice Marshall issued I am pleased that God made my 11 $100,000. But it wasn’t the money. which forbids anyone to practice skin black – but I wish He had made a separate dissent and Justice Brennen Flood saw the issue as one of principle, his calling is commonly called an it thicker. that he wasn’t some commodity to be unreasonable restraint of trade. See CURT FLOOD, Page 20 — Curt Flood bought and sold at the whim of the — William O. Douglas, Rudy Carmenaty serves owners. But the reserve clause bound as a Bureau Chief in the For Information on in dissent him, in seeming perpetuity, to play Office of the Nassau County Attorney, is the LAWYERS’ wherever he was told to. Flood was also battling the weight of Director of Legal Services Flood consulted his attorney about history. In a unanimous 1922 decision, for the Nassau County AA MEETINGS Department of Social suing MLB under the Sherman Anti- Oliver Wendell Holmes ruled in Federal Services, and the Lan- Call Trust Act. The Sherman Act outlaws Baseball Club v. National League that guage Access Coordina- collusion and monopolistic business baseball was not interstate commerce tor for the Nassau County 16 Executive. He is also Vice- (516) 512-2618 practices in restraint of interstate under the Sherman Act. In effect, Chair of the NCBA Publi- commerce. Flood then turned to this decision carved out a one-of-a- cations Committee. Nassau Lawyer January 2021 15 BOOK REVIEW Murphy’s Will by Edward A. McCoyd, Esq.

Publisher: New Street the assets in speculative stock options. map for life, as Hannibal shares the possibility that the court might drag its Publishing (February 29, As soon as the Trustee institutes a insights gained from his research into feet in reviewing the fi les, giving [the 2020) compulsory accounting proceeding ancient civilizations and his forays into Executor] time to make off with the Paperback: 260 pages against him, he leaves town. Only the the wilderness. In his hikes through estate assets, assuming he hadn’t done Executor knows where the stock options Central and South America, Hannibal so already.”6 Amid the intricacies of ISBN-13: 978-0965411868 are located. It is a race against time “saw many temples and monuments that the novel’s plot and the suspenseful to ensure that the Benefi ciary receives powerful people made others build for fi nal chapters, it is not easy to make the assets from the trust, despite the them.” Eventually, these people passed sense of the timing issues from a legal machinations of the Executor. on and the jungle grew back. This perspective. For this reason, the novel’s In Murphy’s Will, greed and excess awareness inculcates a deep respect for best audience is an attorney relatively is personifi ed by the unscrupulous nature, in its hills and mountains. “All new to the practice of trusts and estates, ver dream of leaving it all Executor and by the investment fi rm of this is for all of us, not just a few, and to whom Murphy’s Will provides sound behind—the incessant chatter with whom he deposits the assets, it’s our job to protect it. If we build, we 1 mentorship and practical advice. of the electronic age—disappear EF Hutton. The antidote to societal won’t build to show off . We’ll build only Einto the wilderness—get back in touch 2 sickness is “the tonic of wildness,” what we need, and then we’ll build to 1. Nathaniel C. Nash, E.F. Hutton Guilty in Bank Fraud: with nature? As set out in the beginning as the author illustrates through the help others.”5 Penalties Could Top $10 Million, N.Y. Times, May 3, 1985, at A1. of the novel Murphy’s Will, the main novel’s main character, the Benefi ciary What an inspiring message! character Hannibal Murphy heeds 2. Henry David Thoreau, Walden, 238 (2007 ed.). Hannibal Murphy. Readers meet A word of caution to the nonlawyer. 3. “Administration with the will annexed. the “call of the wild,” journeying Hannibal just as he re-enters the A consistent sense of urgency pervades Administration granted in cases where a testator makes a will without naming any executors; or to Colorado then later to Mexico, United States, and begins working as the book, creating the impression that Guatemala, and Peru in search and a trail guide in Vermont. On a parallel where the executors who are named in the will are once Hannibal turns 25 years old, all incompetent to act, are deceased, or refuse to act.” to understand why native peoples course, the author leads the reader will be lost. Upon closer inspection, Administration of Estates Cum testamento annexo (CTA), built temples for self-glorifi cation. To Black’s Law Dictionary (6th ed. 1990). along the legal trail to prevent a fraud there are actually two issues that drive Hannibal, these towering structures upon the Benefi ciary and to put the 4. Edward A. McCoyd, Murphy’s Will, 211 (2020). the plot forward. In the fi rst part of the 5. Id. at 250. symbolized the moral corrosion that money in the rightful hands. Along book, the Trustee (Hannibal Murphy’s 6. Id. at 175. precipitated the downfall of the the way, McCoyd provides insight mother) and her lawyer strive to locate ancient societies who inhabited these into the intricacies of petitioning the Ellin Cowie is a member the Benefi ciary before his 25th birthday. of the NCBA Publications geographic areas. Surrogate’s Court for an accounting, Committee, and a fore- The concern here is that the if the trust Three years later, Hannibal emerges the appointment of an administrator closure defense attorney. expires, she will lose her status as Trustee back in the United States just as his c.t.a. (cum testamento annexo),3 and and cannot petition the court to compel mother lands a new job as Attorney issuance of a court ordered subpoena an accounting. Tim O’Leary’s secretary. Thus begins to inspect fi les of the Executor. A diff erent issue is at play once Mrs. another chapter in the career of Tim In this novel, Edward A. McCoyd O’Leary, whose adventures in the also shares his deep appreciation for the Murphy establishes contact with her practice of trusts and estates began in natural beauty of Vermont. As the plot son: “Of greater concern was the Edward A. McCoyd’s fi rst two books unfolds, McCoyd treats his reader to an Simpson’s Will and Forester’s Will. In his evening of music under the stars at the third book, Murphy’s Will, McCoyd von Trapp Lodge in Stowe, Vermont. juxtaposes the greed and excesses of the He provides instructions, albeit in 1980’s with the harmony and personal excruciating detail, how to hitch a fallen fulfi llment of a life lived close to nature. tree to the back of a truck in order to The author, cofounder of McCoyd, clear it from the road. LOWER COST Parkas & Ronan in Garden City, Finally, McCoyd highlights the provides detailed practical advice in his Smokey House Center (“SHC”) in work, drawing upon his many years of Danby, Vermont, where teenagers MEDIATION AND experience and practice in trust and learn traditional farming methods, and estates law. also develop the self-confi dence and ARBITRATION Murphy’s Will centers on the following camaraderie that often eludes today’s fact pattern: Testator bequeaths assets youth. SHC is a “genuine farming to his son, named Hannibal Murphy, operation, including a full complement specifying that they are to be held in of teenagers and pre-teens working Through the Nassau County Bar Association trust until he reaches 25. He appoints diligently to keep the place running, his brother as the Executor and his and seeming to be doing so with ex-wife as the Trustee. Testator dies from only minimal adult supervision and Expeditious, time-saving, and cost-effective solutions injuries sustained in a car accident. After guidance.” It has “fi ve thousand acres to resolve disputes that might otherwise be litigated suing the other driver, the Estate settles of forest and farmland…to protect in court for $ 6 million. for future generations, and its primary Unfortunately, the Executor fails to function is to “educat[e] young people turn over the assets from the settlement from the area about the preservation of Available to the public as well as to all legal to the Trustee. Instead, seeking their rural heritage.”4 professionals personal profi t, the Executor invests Murphy’s Will concludes with a road Reasonable fees that are less expensive than other alternative dispute resolution providers

Subscribe today Mediators and arbitrators are highly skilled attorneys admitted to the New York Bar for a minimum of 10 years, as well as screened and approved by the NCBA Judiciary Committee.

For rules, applications, and additional information, please call (516) 747-4126. 16 January 2021 Nassau Lawyer NCBA December 3, 2020 Virtual Holiday Celebration Nassau Lawyer January 2021 17

LABOR & EMPLOYMENT LAW PLAINTIFF’S PERSONAL INJURY APPELLATE PRACTICE ANIMAL LAW Matthew B. Weinick Ira S. Slavitt Jackie L. Gross Kristi DiPaolo NCBA Committee Tuesday, January 12 Tuesday, Januray 19 Thursday, January 21 Tuesday, January 26 Meeting Calendar 12:30 p.m. 12:30 p.m. 12:30 p.m. 6:00 p.m. January 11, 2021 - LGBTQ WOMEN IN THE LAW EDUCATION LAW CRIMINAL COURT LAW & PROCEDURE February 4, 2021 Charlie Arrowood/Byron Chou Edith Reinhardt John P. Sheahan/Rebecca Sassouni Dana L. Grossblatt Please Note: Committee Meetings are for Wednesday, January 13 Tuesday, January 19 Thursday, January 21 Wednesday, January 27 NCBA Members. Dates and times are subject 9:00 a.m. 12:30 p.m. 12:30 p.m. 12:30 p.m. to change. Check www.nassaubar.org LEGAL ADMINISTRATORS ALTERNATIVE DISPUTE RESOLUTION DISTRICT COURT INTELLECTUAL PROPERTY for updated information. Dede Unger/Virginia Kawochka Marilyn K. Genoa/Jess A. Bunshaft Roberta D. Scoll/S. Robert Kroll Frederick L. Dorschak Wednesday, January 13 Tuesday, January 19 Friday, January 22 Thursday, January 28 12:30 p.m 6:00 p.m. 12:30 p.m. 12:30 p.m. MATRIMONIAL LAW ASSOCIATION MEMBERSHIP HOSPITAL & HEALTH LAW REAL PROPERTY SURROGATE’S COURT ESTATES & TRUSTS Samuel J. Ferrara Michael DiFalco Leonard M. Rosenberg Alan J. Schwartz Brian P. Corrigan Wednesday, January 13 Wednesday, January 20 Monday, January 25 Wednesday, February 3 Monday, January 11 5:00 p.m 12:30 p.m. 12:30 p.m. 12:30 p.m. 5:30 p.m. DIVERSITY & INCLUSION ELDER LAW SOCIAL SERVICES HEATH GENERAL, SOLO AND SMALL LAW PRACTICE COMMUNITY RELATIONS & PUBLIC EDUCATION CIVIL RIGHTS Hon. Maxine Broderick ADVOCACY MANAGEMENT Joshua D. Brookstein Bernadette K. Ford Wednesday, January 13 Katie A. Barbieri/Patricia A. Craig Scott J. Limmer Thursday, February 4 Tuesday, January 12 6:00 p.m. Wednesday, January 20 Tuesday, January 26 12:45 p.m. 12:30 p.m. 12:30 p.m. 12:30 p.m. PUBLICATIONS Christopher J. DelliCarpini/Andrea M. DiGregorio Thursday, February 4 12:45 p.m.

Tip Credit ... 10. See New York State Subminimum Wage Hearings, Report 15. See Minimum Wages for Tipped Workers, supra n.1; than $1.60 per hour. and Recommendations to Governor Andrew M. Cuomo, New see also Minimum Wage Poster – Attention Miscellaneous 16. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.21; Continued From Page 8 York State Department of Labor, pg. 4, https:// Industry Employees, New York State Department of see Minimum Wages for Tipped Workers, supra n.1. on.ny.gov/3oDCg4C. and building service. See Minimum Wages for Tipped Labor, https://on.ny.gov/373ZtGU. As of June 30, 17. See New York State Subminimum Wage Hearings, Report 11. See id. at pg. 9. Workers, New York State Department of Labor, 2020, on Long Island, employers were entitled to and Recommendations to Governor Andrew M. Cuomo, supra 12. Order of Commissioner of Labor Roberta Reardon pay their employees a cash wage of $11.40 per hour n.10, at pg. 3. https://on.ny.gov/372K3mn. Pursuant to Labor Law Section 659(2), New York State when tips were at least $1.60 per hour and $12 per 18. N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.3. 2. N.Y. Comp. Codes R. & Regs. tit. 12, § 146-3.1. Department of Labor (Dec. 31, 2019), https://on.ny. hour when tips were at least $1 per hour, but less 19. See id. §§ 146-1.2, 146-1.3. 3. Id. § 142-2.5(b). gov/373IXH4; see N.Y. Comp. Codes R. & Regs. tit. 4. Id. 12, § 142-2.21. 5. See id. 13. See Governor Cuomo Announces End of Subminimum 6. See id. § 142-2.5(b)(2)(i). Wage Across Miscellaneous Industries Statewide, supra n.1. 7. Id. 14. See Order of Commissioner of Labor Roberta Reardon FREE CONFIDENTIAL* 8. See id. § 142-2.5(b)(2)(i)(b). Pursuant to Labor Law Section 659(2), supra n. 12; see also 9. See id. § 142-2.5(b)(2)(i)(c). N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.21. HELP IS AVAILABLE

The NCBA Lawyer Assistance Program offers professional Recruiting ... eligible list unless declination is for one or more of and peer support to lawyers, judges, law students, and their the following reasons: immediate family members who are struggling with: Continued From Page 9 (a) Insuffi ciency of compensation off ered when below minimum of grade of the position for and Minority Aff airs. Each agency which the examination was held; (b) Location of employment; Alcohol Drugs Gambling Mental Health Problems has links on its website to Civil Service (c) Temporary inability, physical or otherwise, job interest cards and application which must be satisfactorily explained by the information and forms, and each agency eligible in writing. The Commission shall enter YOU ARE NOT ALONE collaborates with Civil Service training upon the eligible list the reasons for its action in such cases. on the Civil Service system generally, 4. Civil Service Law §61. on the application process and on the 5. Civil Service Law §61(1) (Appointment or qualifi cation process.20 promotion from eligible lists). Training includes overall education 6. Civil Service Law § 50(8) (Limitation of eligibility about the many facets of a public sector to one sex). 7. Extra veteran’s points are provided under Civil career, as well as detailed instructional Service Law § 85(3). classes on how to complete an 8.Civil Service Law §50(9) (Examination of application and how to determine in candidates unable to attend tests because of religious advance of completing an application observance). that an individual’s background 9. Civil Service Law §50(10) (“Determination of disability shall be made by a medical offi cer (education and employment history) employed or selected by the civil service department meets the qualifi cations. or the municipal commission having jurisdiction.”) (888) 408-6222 This strategy is a long-range plan See also Civil Service Law §55-a; https://bit. [email protected] to increase diversity in the public ly/36PHsMy. 10. Roske v. Keyes, 46 A.D.2D 366 (2d Dept. 1974). sector, including in law enforcement, 11. Id. at 368. notwithstanding the limitations of New 12. Id. The NCBA Lawyer Assistance Program is directed by Beth Eckhardt, PhD, and the Lawyer York State Civil Service Law. 13. Ruddy v. Connelie, 61 A.D.2d 372 (3d Dept. 1978). Assistance Committee is chaired by Jacqueline A. Cara, Esq. This program is supported by grants from the WE CARE Fund, a part of the Nassau Bar Foundation, the charitable arm of the Nassau 14. Id. at 373. County Bar Association, and NYS Office of Court Administration. 1. Civil Service Law §56/ 15. Id. at 374.. *Strict confidentiality protected by § 499 of the Judiciary Law. 2. “APPOINTING OFFICER” means the 16. Id. at 375. offi cer, commission or body having the power of 17. Id. at 376. appointment to subordinate positions. Nassau Nassau County Bar Association ncba_lawyersassistance County Civil Service Rule Book Defi nitions. 18. https://on.ny.gov/2IjiSdu. Lawyer Assistance Program 3. Nassau County Rule Book XVI(5) provides that [t] 19. https://on.ny.gov/36Mfrp2. he name of the person declining appointment shall 20. https://www.nassaucountyny.gov/1437/ NASSAUBAR-LAP.ORG be eliminated from further certifi cation from the Departments. 18 January 2021 Nassau Lawyer NCBA Collects Toys for We Care Local Nonprofit We Acknowledge, with Thanks, Contributions to the WE CARE Fund DONOR IN HONOR OF Matthew and Deanna Lepage To commemorate our wedding. Sheryl and Paul Lerner’s new granddaughter, Hon. Marilyn K. Genoa Eden Sarah. The staff of the NCBA in gratitude for all that Hon. Marilyn K. Genoa they do for our Association. John and Joseph Ardito, Ardito Best wishes for good health, peace, and hap- & Ardito Attorneys At Law piness this holiday season! Roger Kahn Champion Office Suites clients Hon. Andrea Phoenix being installed as Pres- Veronica Jones-Johnson ident of the Theodore Roosevelt Inns of Court Michael Masri The WE CARE Advisory Board

DONOR IN MEMORY OF Andrew M. Thaler Stanley Thaler Warren Hoffman Byron Divens’ Father Dana J. Finkelstein All those who have lost their lives to Covid-19.

Desmond C. Corrigan, husband of Hon. Tere- Hon. Denise Sher This year for the holidays, the Nassau County Bar Association (NCBA) held a toy drive for sa K. Corrigan New Hour for Women and Children LI, a nonprofit organization that provides meaningful support to current and formerly incarcerated women, their children, and families. Toys were Joseph Galatta, brother-in-law of John and generously donated by NCBA Members and staff. We are so proud to lend a helping-hand to Hon. Marilyn K. Genoa our community during these difficult times and brighten the holidays for the children. Doreen Reali Desmond C. Corrignan, husband of Hon. Hon. Andrea Phoenix Teresa K. Corrigan

IN MEMORY OF BARBARA SCOTT GIANELLI Joanne and Hon. Frank Gulotta, Jr. Hon. Denise Sher Hon. Leonard and Deborah Austin Hon. Andrea Phoenix IN HONOR OF THE WE CARE FUND Schlissel Ostrow Karabatos, PLLC Adrienne Hausch Abraham B. Krieger Emily Franchina Joseph Lo Piccolo Hon. Maxine Broderick Florence Fass Christopher Clarke Hon. Andrea Phoenix HOW YOU CAN Hon. J. Gardiner Pieper Hon. Denise Sher Hon. Marilyn K. Genoa Beacon Light Foundation HELP THE George Frooks Adrienne L. Hausch Kathleen Wright Hon. Carnell T. Foskey WE CARE FUND Charlene Thompson Emily Franchina, Franchina Law Group IN MEMORY OF HON. ELAINE JACKSON STACK MAKE A DONATION Hon. Jeffrey Goodstein Gregory S. Lisi Jerome A. Scharoff Kenneth Marten Show your support for the WE CARE Fund by making a The Biblowitz Family—Jen, Lewis, Joan M. Dudley Jonah, and Nate Dana Finkelstein donation today by visiting nassaubar.org/donate-now. Nina Koppelman James P. Joseph, Joseph Law Group Patricia Latzman Frank Tiscione Hon. Denise L. Sher Hon. Marilyn K. Genoa Emily Franchina Alan B. Hodish Mary Ann Aiello AMAZON SMILE Charlotte M. Betts Evelyn Kalenscher Do your regular online shopping using smile.amazon.com and choose Nassau Bar Checks made payable to Nassau Bar Foundation — WE CARE Foundation, Inc. as your charity of choice. Amazon will Contributions may be made online at www.nassaubar.org or by mail: donate 0.5% of eligible purchases to WE CARE! NCBA Attn: WE CARE 15th & West Streets Mineola, NY 11501 Nassau Lawyer January 2021 19 A Primer ... Order 13950 does not outright Continued From Page 13 contradict those requirements, it suggests the idea of a departure from affi rmative action that may or may not take off . sex discrimination and affi rmative Ultimately, this fi eld of law continues to action only in terms of the employer’s evolve, and navigating it successfully will obligation without off ering any opinions NCBA continue to require extraordinary tact on on whether—or why—such measures are the part of construction contractors and proper or necessary. their attorneys Sustaining Members Penalties for Nonconpliance 1. Exec. Order No. 11,246, 30 Fed. Reg. 12319 (Sep. 2 0 2 0 - 2 0 2 1 Noncompliance, whether with 24, 1965); as amended by Exec. Order No. 11,375, 32 Fed. Reg. 14303 (Oct. 13, 1967); Exec. Order Executive Order 13950, Executive No. 12068, 43 Fed. Reg. 46501 (Oct. 5, 1978); Exec. Order 11246, the Rehabilitation Act, or Order No. 13,665, 79 Fed. Reg. 20749 (Apr. 8, 2014); The NCBA is grateful for these individuals who VEVRAA, carries a series of penalties. and Exec. Order No. 13,672, 79 Fed. Reg. 42971 (Jul. 21, 2014). strongly value the NCBA's mission and its Under all of these laws, a construction 2. 29 USC § 793(a). contract may be cancelled, suspended, 3. 38 USC § 4212(1). 4. 41 CFR § 60-1.5(a)(1); 41 CFR § 60-4.1. contributions to the legal profession. or terminated in the event of a violation, 5. 41 CFR § 60-1.5(a)(3) and (7). and the contractor may be debarred 6. 41 CFR § 60-1.12(a). The time period is one year from being awarded federal contracts.27 from the date of making the record or the personnel Erica Lucille Alter Hon. Richard S. Kestenbaum action involved if the contractor has fewer than 150 Hon. Susan T. Kluewer Other potential penalties include employees or its contract sum is less than $150,000. Margaret Alter backpay to employees with interest and 7. 41 CFR § 60-1.12(c). Mark E. Alter Martha Krisel injunctions against further violations,28 8. 41 CFR § 60-2.1(b). Vanessa P. Anagnostou Donald F. Leistman 9. 41 CFR § 60-4.3(a). David I. Levine as well as the withholding of progress 10. 29 USC § 793(a). Michael J. Antongiovanni payments.29 11. 41 CFR § 60-741.4. Rosalia Baiamonte Marilyn M. Levine Earlier this year, the Department 12. 41 CFR § 60-741.40. Ernest T. Bartol Peter H. Levy 13. 41 CFR § 60-741.80. David M. Lira of Labor’s Offi ce of Federal Contract 14. 41 CFR § 60-741.42. Howard Benjamin Compliance Programs, which enforces 15. 41 CFR § 60-741.44. Jack A. Bennardo Gregory S. Lisi 16. 38 USC § 4212. The fi gure of $150,000 is Hon. Maxine S. Broderick Hon. Roy S. Mahon the affi rmative action laws, resolved a adjusted from $100,000 in the original VEVRAA to Neil R. Cahn Mili Makhijani complaint against federal construction account for infl ation per 48 CFR § 1.109. Peter J. Mancuso subcontractor EnviroVantage Inc. for 17. 41 CFR § 60-300.4. Jeffrey L. Catterson 18. 41 CFR § 60-300.40(a). The regulations specify Alan W. Clark Michael A. Markowitz failing to hire 12 eligible female workers, that the affi rmative action plan requirement also Hon. Leonard S. Clark Tomasina Cuda Mastroianni resulting in the contractor paying applies only where the contractor has a contract in Hon. Lance D. Clarke John P. McEntee $100,000 in back wages and interest excess of $100,000, but this is presently redundant, given the current threshold dollar amount for Richard D. Collins Christopher T. McGrath and agreeing to hire 12 eligible female VEVRAA to apply at all. Michael J. Comerford Anthony J. Montiglio workers as positions became open.30 19. 41 CFR § 60-300.80(a). 20. 41 CFR § 60-300.42. Hon. Eileen Catherine Daly Michael Mosscrop The resolution of a complaint for Fort 21. 41 CFR § 60-300.44. Hon. Joseph A. DeMaro Teresa Ombres Myer Construction Corp.’s violations, 22. 38 USC § 4212. Michael DiFalco Hon. Michael L. Orenstein 23. 41 CFR § 60-300.45. including violating the affi rmative action 24. Exec. Order No. 13950, 85 Fed. Reg. 60683 (Sep. Laura M. Dilimetin Lisa M. Petrocelli laws by failing to hire qualifi ed female 22, 2020). John P. DiMascio Jr. Christian Aaron Pickney and African American applicants, 25. Id. Janet Nina Esagoff Milan Rada 26. Id. involved a payment of $900,000 and 27. Id.; Executive Order 11246 Secs. 207(7), 209; 41 Howard S. Fensterman Michael E. Ratner a commitment to off er positions to CFR § 60-1-27(b); 41 CFR § 60-300.66; 41 CFR § Jordan Fensterman Marc W. Roberts 7 qualifi ed women and 30 qualifi ed 60-741.66(a). Samuel J. Ferrara Jamie A. Rosen 28. 41 CFR § 60-1-26(2); 41 CFR § 60-300.65 (a)(1). African Americans as positions become 29. 41 CFR § 60-300.66. Ellen L. Flowers Leonard M. Rosenberg available.31 30. U.S. Department of Labor. New Hampshire Federal Thomas J. Foley Daniel W. Russo Under the threat of the foregoing Construction Subcontractor Enters Agreement to Settle Hiring Lawrence R. Gaissert Jerome A. Scharoff Discrimination Found by U.S. Department of Labor. https:// Stephen W. Schlissel sanctions, construction contractors must bit.ly/3oujX1E. Marc C. Gann walk a proverbial tightrope to comply 31. U.S. Department of Labor. Fort Myer Construction Eugene S. Ginsberg Hon. Denise L. Sher with affi rmative action requirements. Will Pay $900K to Settle Discrimination and Harassment Frank Giorgio, Jr. Hon. Peter B. Skelos Case Involving 371 Women and Minorities, https://bit. Ira S. Slavit Although the introduction of Executive ly/3oIlYaJ. John J. Giuffre Dorian R. Glover Wiliam J.A. Sparks Alan B. Goldman Jill C. Stone Stephen F. Gordon Sanford Strenger the damages available. In other words, Unpaid Wage ... Hon. Frank A. Gulotta Terrence L. Tarver Continued From Page 7 plaintiff s’ attorneys are now incentivized Mary Elizabeth Heiskell Thomas A. Toscano to take smaller FLSA cases because they Alan B. Hodish Craig J. Tortora still stand to earn fees based on their Danielle M. Visvader but the court exceeds its authority when Carol M. Hoffman reasonable work spent on the case. Hon. Joy M. Watson it unilaterally changes the terms of a Warren S. Hoffman David Paul Weiss contract agreed to by parties. 1. “Why Wage and Hour Litigation is Skyrocketing,” James P. Joseph Washington Post, Nov. 25, 2015 available at https:// www.washingtonpost.com/news/wonk/ Mei and Fisher Provide wp/2015/11/25/people-are-suing-more-than-ever- Clarity to Local Attorneys over-wages-and-hours. 2. 796 F.3d 199 (2d Cir. 2015). Mei and Fisher answered two important 3. 324 U.S. 697, 700 (1945). questions which lingered in the wake 4. D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114-15 of Cheeks. First, litigants are free to (1946). To become a Sustaining 5. Id. at 116. settle and dismiss FLSA actions without 6. Cheeks, 796 F. 32 at 202. judicial review by using (and accepting) 7. Id. at 200. a Rule 68 off er of judgment.15 Though 8. 944 F.3d 395 (2d Cir. 2019). Member, please contact 9. Id. at 412-14. this provides certainty for parties to know 10. Id. at 411. The Court in Cheeks did not consider that their settlements will not be rejected whether parties may settle Rule 41(a)(1)(A)(ii) the Membership Office at by a court, it does not alleviate concerns dismissals without prejudice. Id. “Nor did it address other avenues for dismissal or settlement of claims, about confi dentiality, since the judgment including Rule 68(a) off ers of judgment.” Id. will be docketed. 11. 948 F.3d 593 (2d Cir. 2020). (516) 747-4070. Second, plaintiff s’ attorneys are not 12. Id. 13. Id. at 602, 605 (noting the Circuit “repeatedly constrained to fees of one third of a rejected the notion that a fee may be reduced merely settlement amount.16 Indeed, plaintiff s’ because the fee would be disproportionate to the attorneys can rest easy knowing that fi nancial interest at stake in the litigation). 14. Id. at 605. their fees for work on lower value 15. 944 F.3d at 410. FLSA cases is not necessarily tied to 16. 948 F.3d at 602. 20 January 2021 Nassau Lawyer Form I-9 ... solely responsible for completing Section 1 of the Form errors, etc. However, if an employer knowingly hires Continued From Page 6 I-9 and providing documentation demonstrating work an employee without employment authorization, authorization, the employer is ultimately responsible the employer could face potential penalties. Before for the proper execution of the entire form. Sections 2 making any termination decisions, it is critical that discrimination provision.10 and 3 must be timely completed by the employer. It is employers review such decisions with counsel to avoid Second, employers must not over-document an important to note that when reviewing documents, the potential violations of employment laws. employee’s proof of work authorization. For instance, employer is not required to maintain photocopies of if an employee presents documentation on List A work authorization documents; however, the employer HIS/ICE Penalties for I-9 Violations of the List of Acceptable Documents, the employer must establish a consistent policy — always retain Penalties for I-9 violations arise during the course should not require any additional documents. In the copies or never retain copies. of an audit by HSI/ICE and can be signifi cant for event that the employer includes additional documents Once Form I-9 is completed, it must be retained violations. Monetary penalties can be in the range on the Form I-9, s/he may be increasing the chances by the employer for all current employees (hired after of $573 to in excess of $20,000.16 That said, ICE of fi nancial penalties in the event that Homeland November 6, 1986) as well as terminated employees, for has some discretion when considering potential fi nes. Security Investigations (HSI), the investigative arm of at least one year after the date of termination, or three Specifi cally, ICE will consider the following factors: the the Immigration and Customs Enforcement (ICE)11 years after the date of hire, whichever is longer.13 size of the business; the employer’s good faith eff ort division of the Department of Homeland Security Internal Audits to comply with I-9 regulations; the seriousness of the conducts an audit. As explained below, ICE reviews all violations; whether the violation involved unauthorized violations, even those that appear minor such as over It is advised that employers conduct their own employees; and the employer’s history of previous documenting when evaluating potential penalties. internal audits and review the current I-9 regulations violations.17 Accordingly, to mitigate damages, all US Not only can over-documenting lead to penalties, but to ensure compliance. As with completion of Form employers should consider internal audits to ensure so too can failure to timely complete Form I-9. Again, I-9, when conducting internal audits an employer compliance with federal immigration regulations. must consider both employment discrimination and the form must be completed within three business days 1. Pub.L. 99-603, 100 Stat. 3445 (Nov. 6, 1986). 12 immigration consequences. Immigration and Customs of the employee’s start date. While the employee is 2. See 8 C.F.R. § 274a.2(e)-(i). Enforcement has provided guidance for employers 3. See https://bit.ly/3lVaaA3. conducting internal audits, which all employers 4. See 8 U.S.C. § 1324b. should review.14 Specifi cally, ICE reminds employers 5. See Id. 6. Handbook for Employers M-247, available at https://bit. LAWYER TO that internal audits cannot be discriminatory and/or ly/33XzWNK. retaliatory in nature; employers should not consider 7. See 8 C.F.R. § 247a.1(l). citizenship or national origin when conducting internal 8. See United States Department of Justice, Immigrant and Employee LAWYER Rights Section, available at https://bit.ly/3n3jseu. audits. ICE also provides guidance for employers to 9. See Id. APPEALS AND COMPLEX LITIGATION conduct the audits and correct defi ciencies.15 10. See Technical Assistance Letters, available at https://bit. ly/3oC0Oe5. That said, when an employer is unable to verify 11. See https://www.ice.gov/hsi Appeals and Complex Litigation employment, or notices an issue at the time of an 12. 8 CFR 274a.2(b)(1)(ii) internal audit, it is incumbent upon the employer 13. 8 CFR 274a.2(b)(2)(i)(A) 14. See Guidance for Employers Conducting Internal Employment ~CHARLES HOLSTER~ to try to correct the Form I-9. This means that Eligibility Verifi cation Form I-9 Audits, available at https://bit. the employer must provide the employee with ly/2IsaxEw. 30 years experience ∙ Free consultation a reasonable amount of time to explain any 15. See Id. 16. See Form I-9 Inspection Overview, available at https://bit. (516) 747-2330 discrepancies. Discrepancies can arise for numerous ly/2LblxXH. valid reasons such as name changes, typographic 17. See Id. www.appealny.com [email protected] (December 24, 2019) at https://apnews.com. Curt Flood ... 3. Brad Snyder, A Well-Paid Slave (2006) 60. BANKRUPTCY ATTORNEY Continued From Page 14 4. The Cardinals were World Series Champions in 1964 (beating the Yankees 4-3) and again in 1967 (beating the Red Sox 4-3). 5.Snyder, supra n.3, at 63. Bankruptcy Attorney concurred with both dissents in the case. 6. Mike Eisenbath, The Cardinals Encyclopedia (1999) 181. Over 40 years experience in all forms of Bankruptcy 7. Sports Illustrated Cover (Oct. 7, 1968). • AV top rating in Martindale Hubbell MLB praised the decision. For the MLBPA, it 8. Snyder, supra n.3, at 6. • Member National Association Consumer confi rmed that collective bargaining would be the path 9. Id. at 1. Bankruptcy Attorneys going forward. As for Flood, it was more than just 10. Id. • Covid-19 Discounts Available a courtroom defeat. The experience was a personal 11. Deron Snyder, Today’s stars still reaping fruits of Flood’s fi ght for free agency • Free Consultations 50 years ago (December 25, 2019) at www.washingtontimes.com. disaster that led to a decade-long decline. 12. Allen Barra, How Curt Flood Changed Baseball and Killed His Career in the Kenneth Halpern In the 1980’s, Flood regained his dignity and Process (July 12, 2011) at https://the atlantic.com.. 1 Old Country Road #125, Carle Place, NY 11514 13. Howard Burns, Curt Flood’s Sacrifi ce: Sports’ Most Meaningful Trade at 516.222.1199 • [email protected] • bankruptcylawli.com found a new life after baseball. In 1992, the NAACP https://bleackerreport.com. presented Flood with its 1st Jackie Robinson Award.25 14. 316 F. Supp.271 (S.D.N.Y. 1970). Unfortunately, three years later, he was diagnosed with 15. William Wallace, Rozelle Rule Found in Anti-trust Violation (December CONSTRUCTION LAW 31, 1975) at www.nytimes.com. throat cancer. On January 20, 1997, just two days after 16. 259 U.S. 200 (1922). • Construction Contract preparation, review and negotiation his 59th birthday, Curt Flood died. 17. United States v. International Boxing Club of NY, 348 U.S. 236 (1955) Fittingly, it was Martin Luther King Day. A martyr (Boxing); Radovich v. NFL, 352 U.S. 445 (1957) (Football); Haywood v. • Defective / Incomplete construction National Basketball Association 401 U.S. 1204 (1971)(Basketball). • Post-Sandy House Raisings for the cause of free agency, his sacrifi ce was an 18. 346 U.S. 356 (1953). • Non payment – Lien filings – Bond Claims affi rmation of the dignity of the African-American 19. 407 US 258 (1972). athlete. He should be remembered; indeed he should 20. Anheuser-Busch owned the Cardinals. • Lien Foreclosures 21. Barra, supra n.12. • Union Hearings be celebrated once again. At the very least, Curt Flood 22. Id. • Construction Arbitrations, Mediation, Litigation should be in the Hall of Fame in Cooperstown.26 23. 407 U.S. 258 (1972)(Douglas dissent). 24. Id. www.LIConstructionLaw.com 1. Flood was traded with Tim McCarver, Byron Browne, Joe Hoerner 25. Barra, supra n.12. for Dick Allen, Jerry Johnson, and Cookie Rojas. After Flood refused the 26. Flood had a life-time .293 batting average, hit .300 or better six times (516) 462-7051 trade, Willie Montanez and Jim Browning were sent instead. with a high of .337 in 1967; he won seven Gold Gloves and was a three- Offices Uniondale, Melville, Ft Lauderdale 2. Ronald Blum, Curt Flood set off the free-agent revolution 50 years ago time All-Star. NO-FAULT ARBITRATION OFFICE SPACE Cultural Competence ... THE NEW YORK NO-FAULT ARBITRATION ATTORNEY Continued From Page 5 TO THE PERSONAL INJURY MEMBERS OF THE BAR Sublet 9’ x 13’ interior office ANDREW J. COSTELLA, JR., ESQ. in six attorney suite. available at https://bit.ly/3gmBplO. e CONCENTRATING IN NO-FAULT ARBITRATION FOR YOUR CLIENTS' 600 Old Country Road, 3. Id. (citing Sylvia Sevens, Cultural Competency: Is There an Ethical Duty, OUTSTANDING MEDICAL BILLS AND LOST WAGE CLAIMS Garden City, NY. Oregon State Bar Bull. (Jan. 2009)).. Successfully Handling Thousands Of No-Fault Claims Central location - below Proud to serve and honored that NY's most prominent personal injury market rate. (516) 228-4280 x112 4. “Cultural Humility, Part I — What Is ‘Cultural Humility’?”, The law firms have entrusted us with their no-fault arbitration matters Social Work Practitioner (Aug. 19, 2013), available at https://bit. Law Offices of Andrew Costella Jr., Esq. PC ly/2JMWwBM. ) 1225 Franklin Avenue, Suite 525, Garden City, NY 11530 5. Report from the Special Advisor on Equal Justice in the New York (516) 747-0377 | [email protected] State Courts (Oct. 1, 2020), available at https://bit.ly/39Y4Hpw.