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The Journal of the Nassau County Bar Association January 2021 www.nassaubar.org Vol. 70, No. 5 Follow us on Facebook Nominating Committee Seeks Candidates 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.

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