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Closing the Deal

Posted: December 18th, 2015

As we all know, being skillful in the art of negotiation is absolutely critical to your success in business. So you’ve read all the tactics, planned your approach, prepared your process, and even began implementing the strategies. But what happens when you still can’t seem to land that final stage, closing the deal?

Here are some deal making tips from Negotiation Briefings, “5 Tips for Closing the Deal in Business Negotiations Drawn from Negotiation Case Studies,” written by the Program on Negotiation Staff at Harvard University that offers some insight on nailing that final stage.

Diagnose the Barrier

When you’ve made progress on certain issues but remain stymied on others in a negotiation, it’s time to take a hard look at what’s standing between you and a mutually acceptable deal. Professor Robert Mnookin of Harvard Law School and his colleagues at Stanford University have created a catalog of common barriers to agreement, including strategic behavior, reactive devaluation, and authority issues.

If you think strategic behavior – particularly an unwillingness of one or both sides to make their best offer – may be the a to closing the deal, enlist a trusted, unbiased third-party for help. The negotiators can then disclose their respective bottom lines privately to the neutral, who will tell them if there’s an overlap. If so, the negotiators should be able to hammer out a deal quickly within the zone of possible agreement (ZOPA).

If not, it may be wise to abandon talks and pursue other alternatives.

Psychological factors can prevent you from closing the deal, too. Professor Lee Ross of Stanford University demonstrated the all-too-human tendency to reactively devalue what other people offer us.

“If that issue was truly important to them, they wouldn’t have made the concession,” we tell ourselves.

We need to avoid that trap in our own thinking and be careful not to trigger that reaction from others. Rather than trying to wrap things up by putting a reasonable number on the table, for instance, wait for the other side to make a specific request. In this manner, you may increase the perceived value of your concession – and your counterpart’s satisfaction.

Sometimes a tag-team approach is needed to reach closure. The first cohort of negotiators may settle some important issues but run out of gas when it comes to others. A fresh team may bring a new perspective without the burden of personality problems developed by their predecessors. Changing the lineup may be especially useful if early negotiators have limited authority. This is common practice in diplomatic negotiations; foreign-service specialists often do much of the groundwork before heads of state meet to resolve any remaining issues.

Use the Clock

Negotiations expand to fill the time available. We may not like to make important decisions under the gun, but deadlines can provide a healthy incentive to closing the deal. It’s no accident that lawsuits settle on the courthouse steps and that strikes often are averted at the eleventh hour. Until that point, the daily costs of protracted negotiation may not seem high (though, clearly, they mount over time).

Only when the judge is about to be seated or the contract is due to expire are people jolted out of the relative comfort of the status quo. If you anticipate these moments, recognize your priorities, and keep channels of communication open, you’ll be able to move quickly and wisely when you have to.

To avoid getting bogged down in never-ending talks, it pays to impose a deadline at the outset of negotiation. You also can put a fuse on the proposals you make, though exploding offers can backfire if the other party resents being put under artificial pressure.

Count Your Change

Even if you’ve done everything right, you have to be alert for gambits and tricks as the negotiation winds down.

A classic bargaining tactic among lawyers advises, “After agreement has been reached, have your client reject it and raise his demands.” It’s a common gambit for car salespeople, too, as they return from conferring with the manager. The news is never good: “You’ve got to offer $1,000 more – but he’ll toss in the floor mats for free.”

Shame on those who resort to such tired old ploys. Shame on you, too, if you’re not ready for them.

When you’re closing the deal, confirm that all the key provisions have been covered so there will be no surprises. Even after you’ve gotten a sincere handshake, your counterpart may come back with further demands if she is having a tough time selling the deal internally. (You’ll sometimes be in that position yourself.)

From the outside, of course, it’s impossible to know when you’re being taken for a ride and when the need for revisions is legitimate. How the negotiation has gone up until that point may offer an important clue.

Either way, however, you should be leery about making any unreciprocated concessions. If your counterpart asks for new terms, even if you can afford them, you should get a favorable adjustment in return. Otherwise, you’re simply encouraging further requests.

Sign Here

Most important deals require a written contract. Whatever you’ve gained through artful negotiation will go down the drain if the understanding you reached is poorly reflected in formal documents.

The technical side of executing an agreement isn’t glamorous, but it’s where many battles are won or lost. Even if you’re weary, resist the temptation to let the other side “write it all up.”

It’s smarter to have your own lawyers and specialists get the language right than to seek their help later in rewriting a draft that the other side has mangled. Because you have control over your own lawyers, you can tell them what risks you’re willing to take and where you need protection.

Mediators, Litigators, and Outside Support: What you need to know about closing the deal next time

Your attorneys must known the limits of their responsibility, of course. While it’s their job to protect your rights and identify potential trouble spots, it ultimately falls to you to determine which risks you’re willing to assume. After all, in business (as in life) there are few certainties. As a practical matter, it may be sensible to leave some items unresolved and others ambiguous.

For example, if you have retained a corporate trainer to present a program to your company, you will likely want to include a clause for rescheduling if a conflict arises. If that possibility seems unlikely, it may be sufficient to stipulate that the new date will be at a “mutually agreeable time,” rather than creating cumbersome procedures and policies that you’ll never need.

Instead of getting bogged down arguing tedious technical points, consider addressing them globally. A straightforward dispute resolution clause, crafted while everyone is enthusiastic about the closing the deal, can reduce the cost of unexpected problems and keep you out of court.

Closing the deal

At the end of negotiation, boiler-plate clauses governing renewal options and the like may not seem like dealmakers or deal breakers, but they determine who is holding the cards when it comes time to renew the agreement. For this reason, take special care to get the language of exit clauses right so that you’ll be in a good position to renegotiate down the road.

Parties often are preoccupied with immediate dollars and cents when they execute a deal, but, in the long term, the option to extend or terminate a deal may have much more financial value.

Finally, be extra careful about casually signing a “memorandum of understanding” or an “agreement to purchase.” These documents may entail real commitments and limit your ability to win any further benefits, ending the negotiation before you even realized it had begun.

Let Them Brag

You may not have liked your counterpart much at the outset, and after marathon haggling sessions, you may like him even less. It’s hard to be civil in such situations, yet grace is important at the finish line.

To get a deal ratified, you may have to make your counterpart look good to his constituents. This is not just a question of virtue. If the other side loses face, he may be tempted to retaliate and spurn a deal that, by all rights, he should accept. If someone’s agreement comes grudgingly, getting him to deliver on his promises may be like pulling teeth.

To make the other party look good, you may need to orchestrate the concluding moves in the negotiation. In collective bargaining, for example, the management often prefers it when the union makes an offer that the company can accept, rather than vice versa. (Appearing weak is less of a concern for management than it is for the union’s elected agents.) Union officials can then say to their membership, “We got the company to accept our proposal,” rather than, “Here’s what we finally accepted.”

http://www.pon.harvard.edu/daily/dealmaking-daily/5-tips-for-closing-the-deal/

Be Careful When Rolling Your IRAs

Posted: December 18th, 2015

By: Martin Glass, Esq. email

Tags: estate planning

This is the end of the year. Since many of my senior clients have to take out the Required Minimum Distribution (RMD) from all their IRA accounts, they also start to think about moving the rest of their IRA money into possibly a more productive investment. But a word of caution, beginning this year, there are new IRS rules for IRA Rollovers. You can only make one rollover of one IRA to another (or to the same IRA) in any 12‑month period, no matter how many IRAs you own. The limit includes all types of IRAs, including SEP IRAs, SIMPLE IRAs, Roth IRAs and Traditional IRAs.

If you violate the new rules you may be subject to reporting the rollover as income and a 10% early withdrawal penalty. If the distributed amount stays in the new (or same) IRA, you may also be subject to a 6% tax each year.

But take heart, the Internal Revenue Service gives you an exemption. You don’t have to report the income from an IRA distribution if you deposit the amount into an eligible retirement plan (such as another IRA) within 60 days. But, this is a once a year deal. A second rollover within a 12‑month period would violate the new rules.

Luckily, there is a way around this allowing you to do multiple transfers without violating the rule. First, let’s take a look at how you would violate the rule and then let’s see how to avoid the violation.

As an example, let’s say you want to take $50,000 from your IRA brokerage account and another $50,000 from your SEP IRA and put them into an IRA money market account in your local bank.

The incorrect way to do this is to have the brokerage make out a distribution check made payable to you. Less than 60 days later you open the IRA money market account and deposit the check at your local bank. Then you receive a distribution check from your SEP IRA for your IRA made payable to you. Again, within 60 days you deposit the check into the IRA money market at the bank. Even though each distribution was deposited into an IRA within 60 days, having more than one distribution check payable to you violates the new rules.

Fortunately, there is a very easy method to avoid the one time limit in a 12‑month period. If the rollover is from one trustee to another trustee (“Trustee‑to‑Trustee Transfer”) the rollover is exempt from the new rules. There are no limitations on the Trustee‑to‑Trustee Transfers. So the check you receive from your brokerage account for your IRA needs to be made payable to your local bank (for the benefit of (FBO) you). As before, less than 60 days later you deposit the check into the IRA money market at your local bank. Again, you receive a distribution check from your SEP IRA also made payable to your local bank FBO you. As long as you also deposit the check into the money market IRA at your local bank within 60 days, you’re good. Because each distribution was deposited into an IRA within 60 days and the rollovers were Trustee‑to‑Trustee Transfers, each rollover was exempt from the new rules.

So remember, when rolling over your IRA, direct your trustee to make the check payable to the other trustee. Completing a Trustee‑to‑Trustee Transfer provides you flexibility to make additional rollovers during a 12‑month period.

A Refresher on Medicare Exclusions from the Office of Inspector General

Posted: December 18th, 2015

Tags: healthcare

As we near the end of the year, the government will report on how much money it has recovered from healthcare entities for improper Medicare billing. It is important to remember that, while monetary penalties are serious consequences, egregious overbilling violations may result in the Office of the Inspector General for Health and Human Services (“OIG”) issuing an order excluding a provider from participating in Federal Health Care programs. This sanction is in effect a civil death penalty, since an excluded provider may not bill for services reimbursed by any Federal Health Care program during the exclusion period. As medical practices make year-end certifications of their compliance programs and the like, it is a good time to remind everyone about OIG’s guidance on how to deal with excluded medical providers.

Medical practices must remain vigilant in their compliance efforts to root out and avoid excluded providers. The OIG remains aggressive in its enforcement efforts, and providers who present claims for payment to Federal health care programs for services provided by excluded providers face liability under the Civil Monetary Penalties Law, codified at 42 U.S.C. §1320(a)-7(a). Civil Monetary Penalties (“CMPs”) include a $10,000 fine for each individual violation, plus potential liability for three times the amount of reimbursement claimed or paid by a Federal health care program.

On May 8, 2013, nearly fourteen years after its premier published advisory, the September 1999 Special Advisory Bulletin (the “1999 Bulletin”) on the effect of exclusion from participation in Federal health care programs, the OIG published an Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs (the “Updated Bulletin”). The Updated Bulletin is available at oig.hhs.gov/exclusions/files/sab-05092013.pdf.

Background

The 1999 Bulletin explained that under an exclusion from Federal health care programs, no Federal health care program payment may be made for any items or services: 1) furnished by an excluded individual or entity, or 2) directed or prescribed by an excluded physician (42 C.F.R. 1001.1901). The ban covers all methods of Federal health care program reimbursement, whether from itemized claims, cost reports, fee schedules, through a prospective payment system (“PPS”), and it includes any items or services furnished at the medical direction or prescription of an excluded physician. If Federal health program payments are made to another, non-excluded, provider, for services provided by an excluded provider, then those payments are also prohibited. The prohibition even extends to claims resulting from an excluded provider’s administrative and management services not directly related to patient care, if those services are a necessary component of providing items and services to Federal program beneficiaries. Thus, an excluded physician could not serve as a medical director or office manager, if the patients receiving treatment are Federal health care program beneficiaries.

OIG’s 1999 Bulletin listed the following examples of items or services that could subject employers or contractors to CMP liability if performed by excluded providers:

Services performed by excluded nurses, technicians or other excluded individuals who work for a hospital, nursing home, home health agency or physician practice, where such services are related to administrative duties , preparation of surgical trays, or review of treatment plans if such services are reimbursed directly or indirectly (such as through a PPS or a bundled payment) by a Federal health care program;
Services performed by excluded pharmacists or other excluded individuals who input prescription information for pharmacy billing or who are involved in any way in filling prescriptions for drugs reimbursed, directly or indirectly, by any Federal health care program;
Services performed by excluded ambulance drivers, dispatchers and other employees involved in providing transportation reimbursed by a Federal health care program, to hospital patients or nursing home residents;
Services performed by excluded social workers who are employed by health care entities to provide services to Federal program beneficiaries, and whose services are reimbursed, directly or indirectly, by a Federal health care program;
Administrative services, including the processing of claims for payment, performed for a Medicare intermediary or carrier, or a Medicaid fiscal agent, by an excluded individual;
Services performed by an excluded administrator, billing agent, accountant, claims processor, or utilization reviewer that are related or reimbursed, directly or indirectly, by a Federal health care program;
Items or services provided to a program beneficiary by an excluded individual who works for an entity that has a contractual agreement with, and is paid by a Federal health care program; and
Items or equipment sold by an excluded manufacturer or supplier, used in the care or treatment of beneficiaries and reimbursed, directly or indirectly, by a Federal health care program

The 1999 Bulletin concludes by advising health care providers and entities to check the status of their current employees on the OIG’s List of Excluded Individuals/Entities (“LEIE”) on the OIG’s website, and to “periodically” check the OIG website for the status of current employees and contractors.

The Updated Bulletin

The Updated Bulletin provides needed clarification to providers and entities as to what constitutes acceptable “periodic” checks of the LEIE, and it attempts to answer questions it has received from providers since 1999, including:

May an excluded person provide an item or service that a health care provider needs but that is not for direct patient care or billing?
How frequently should providers screen against the LEIE? How far downstream do they need to screen (e.g. do they have an obligation to screen the employees of contractors and subcontractors in addition to screening contractors)?
How should a provider disclose to OIG that it has employed or contracted with an excluded person?
What is the distinction between the information that appears on the LEIE and the information that appears on the General Services Administration’s (“GSA”) System for Award Management (“SAM”) and other systems that report sanctions or adverse actions taken with respect to health care practitioners (e.g., the National Practitioner Data Bank (NPDB))?

The Updated Bulletin answers the first question above by delineating specific circumstances under which an excluded person may be employed by, or contract with, a provider that receives payments from Federal health care programs. First, Federal health care programs must not pay, directly or indirectly, for the items or services provided by the excluded individual. Second, the arrangement is permissible if the excluded person is furnishing items or services solely to non-Federal health care program beneficiaries. Third, a provider need not maintain a separate account from which to pay the excluded person, as long as no claims are submitted to, nor is payment received from, Federal health care programs for items or services that the excluded person provides.

Although not required by any statute or regulation, OIG recommends that providers check the LEIE monthly. A 2011 CMS final rule already requires States to screen enrolled providers monthly. OIG also believes the LEIE, which is updated monthly, is better than the SAM or the NPDB because it displays: (1) the name of the excluded person at the time of the exclusion, (2) the person’s provider type, (3) the authority for the exclusion, (4) the State where the individual resided at the time of the exclusion, and (5) a mechanism to verify search results via Social Security Number or Employer Identification Number. OIG plans to add NPI to the LEIE, and it wants to include information regarding waivers of exclusion granted by OIG. Presently, waivers of exclusion granted by OIG are found at oig.hhs.gov/exclusions/waivers.asp.

To determine which providers to screen, the OIG recommends that providers review each job category or contractual relationship to determine whether the item or service being provided is directly or indirectly, in whole or in part, payable by a Federal health care program. If the answer is yes, then the best practice is to screen all persons that perform under that contract or that are in that job category. Providers should screen contractors with the same scrutiny that they screen their own employees. Specifically, OIG recommends screening nurses provided by staffing agencies, physician groups that contract with hospitals to provide emergency room coverage, and billing or coding contractors. The provider may rely upon the contractor to perform screening, but the provider should demand documentation to ensure that the contractor is in fact screening on behalf of the provider. The OIG notes that pharmacies commonly rely upon Medicare Part D plans or State agencies to ensure that prescribers are not excluded through computer system edits. However, pharmacies and laboratories that rely upon third parties to screen prescribers remain responsible for overpayment liability and CMPs if items or services are prescribed by excluded providers.

For providers who find that they have received payment for items or services provided by an excluded person, the OIG recommends that providers use OIG’s Provider Self Disclosure Protocol to disclose and resolve the potential CMP liability. The protocol is found at oig.hhs.gov/compliance/self-disclosure-info/index.asp.

CMP sanctions can devastate a medical practice, so providers should follow OIG’s new guidance scrupulously to avoid, or at the very least mitigate, exposure. Providers with questions about compliance or self-disclosure should follow up with health care counsel in order to minimize further risk and liability.

Landlord’s Self-Help and Charging for Capital Improvements: A Busy Fall at the Appellate Division, First and Second Departments

Posted: December 18th, 2015

By Patrick McCormick

The Appellate Courts have been busy this fall rendering significant decisions involving landlord/tenant law. Two decisions of interest are discussed below.

The first is a decision by the Appellate Term, Second Department[1] involving a landlord who engaged in self-help to regain possession of the commercial demised premises at issue. The tenant commenced an unlawful entry and detainer summary proceeding under RPAPL §713(10), and apparently the landlord engaged in self-help to regain possession of the demised premises after commencement of the proceeding.

The court recognized a landlord’s right to engage in self-help, provided such is authorized by the parties’ lease. Here, the landlord engaged in self-help—as authorized by the commercial lease—upon the tenant’s alleged breach of the lease after the notice called for therein. The Appellate Term dismissed the tenant’s petition, not because the landlord improperly engaged in self-help, but because the tenant’s pleadings failed “to contain any allegations establishing that tenants were not in breach of a condition of the lease, that landlord had not complied with the lease provisions requiring notice, or that reentry by landlord was not accomplished peaceably.”

While achieving an apparent victory, the landlord was, in fact, not so lucky. The Appellate Term affirmed the denial of the landlord’s request for possession and for use and occupancy. The court recognized that RPAPL §743 permits the assertion of legal counterclaims on a summary proceeding. The court emphasized that RPAPL §743 “does not allow a respondent to circumvent the requirements of RPAPL article seven for the maintenance of a summary proceeding to obtain a judgment of possession” (citations omitted). When the tenants resumed possession, they did so—if landlord’s position was accepted—as squatters, the lease having been terminated, and no 10-day notice was served as is required to obtain a final judgment pursuant to RPAPL §713(4) (citation omitted). Moreover, the landlord had not pleaded the elements of a Civil Court ejectment action.

Thus, although the tenant had reentered the premises, the court determined that the landlord was, nevertheless, obligated to comply with the notice requirements of the RPAPL prior to initiating a claim for possession. Indeed, the Court chastised the landlord, holding “while the landlord may now be faced with additional litigation, this was brought about by landlord’s resort to self-help. The court was available for landlord to seek an award of possession, but, having chosen to act on its own, landlord cannot now complain of being denied the opportunity to short circuit the procedural requirements of a summary proceeding, by way of counterclaim.” Therefore, engaging in self-help may not result in expeditiously obtaining possession of the demised premises, and caution should be used before engaging in such.

The second case, from the Appellate Division, First Department,[2] involves a tenant’s claim that the landlord was improperly charging tenant an assessment for a façade restoration. In affirming the lower court’s ruling that the tenant was not obligated to pay any part of the façade restoration assessment, the court looked to the unambiguous language of the parties’ lease. The court recognized that the lease specifically provided that after the condominium conversion, “‘and in lieu of CAM [common area maintenance] Costs described in paragraph (B)(1) above,’ ‘Tenant shall pay…[its] Proportionate Share of [the] monthly Common Charges levied against the Commercial Unit; and other special or regular assessments against the Commercial Unit.’” The court went on to recognize that the lease specifically provided that “‘costs for capital improvements, to the extent that same are not in furtherance of reasonable or necessary maintenance of the building,’ ‘shall not be included as CAM Costs.’” The court rejected the defendant/landlord’s argument that the obligation to pay “other special or regular assessments against the Commercial Unit” required the tenant to pay a proportionate share of the façade assessment. While the court did not go into detail in explaining its reasoning, the decision serves as a cautionary tale to both landlords and tenants that, whenever possible, the obligation to pay certain costs must be specifically detailed in the parties’ lease.

[1] Martinez v. Ulloa, 2015 WL 5775821(App.Term 2d Dep’t 2015)

[2] Rogan LLC v. YHD Bowery Commercial Unit LLC, 2015 WL 6510726 (1^st Dep’t 2015)

Rights to “Santa Claus is Comin’ to Town” Song Pass to Songwriter’s Family

Posted: December 18th, 2015

Tags: intellectual property

This time of the year, we all hear the popular Christmas song “Santa Claus is Comin’ to Town,” but what we don’t hear is the ownership dispute over it. Recently, the Second Circuit ruled that the current rights to the song will end December of 2016, and it will pass to the descendants of one of the songwriters, John Frederick Coots.

Tracing the history of the song through decades that also included significant changes in copyright law, records showed that the songwriters had sold the song and copyright to EMI Feist Catalog, Inc. (partially owned by Sony) in 1934. EMI and Coots later entered into an agreement in 1951, where Coots assigned EMI rights to the song, as well as “all renewals and extensions” of the song’s copyright. Subsequently, Coots and EMI entered into another agreement in 1981, wherein Coots assigned EMI all of his rights and interests “whatsoever now or hereafter known or existing.”

In 2007, the Coots descendants served EMI a termination notice. That notice stated that their agreement would terminate on December 15, 2016. Under 17 U.S.C. § 203, it permits authors and their heirs to terminate grants executed on or after January 1, 1978 “beginning at the end of thirty-five years from the date of execution of the grant” or in this case, December 15, 2016.

EMI offered to pay the Coots descendants $2.75 million to “acquire 100% ownership and exclusive administration” in the song, but this offer was rejected, and a litigation was commenced in 2012.

The Coots descendants argued that the notice in 2007 canceled the agreement in 1981. However, EMI argued its rights are governed by the agreement in 1951, and that its rights extend until when the copyright is set to expire – until 2029. At that point the song will enter the public domain.

The Second Circuit held that the 1981 agreement superseded the 1951 agreement, and thus, the Coots descendants had the right to terminate the agreement. The termination notice was valid and the December 2016 termination date is effective. Therefore, by Christmas of next year, it will be a very merry Christmas for the Coots descendants as “Santa Clause is Comin’ to Town.”

Loss Mitigation in Labor Law Cases

Posted: December 18th, 2015

By Scott Middleton

Many of our clients own commercial buildings or multifamily residential buildings and may not be aware of their legal exposure when having construction, renovation, or repair work performed on these buildings.

Labor Law sections 240 and 241 apply to these types of buildings and can be devastating to the unknowing owner. If any worker falls from height, or has an accident involving a gravity-related risk while the work is being performed, the owner and general contractor are absolutely liable.

To adequately protect owners, first and foremost, only reputable contractors should be hired. In the contract between the owner and contractor, the parties must agree that the contractor and any subcontractor will indemnify and hold the owner harmless for all losses arising out of the work to be performed. It is imperative that the owner be named as an additional insured on all policies of insurance and that the policies be reviewed to ensure they contain the proper language.

Assuming all of the foregoing is done and an accident occurs, what happens immediately after the accident is very important. Do not rely upon the contractor or subcontractor to do what is right. As the owner, get involved or have your attorney or other representative become involved in the investigation immediately. This initial investigation is of paramount importance in terms of preparing a defense.

The steps to take immediately are: prepare an accident report, secure and preserve any equipment involved, photograph the area, obtain statements from all involved parties and witnesses, make copies of all contracts and insurance policies (as well as certificates of insurance), and notify all primary and excess insurance carriers.

For large projects, the burden of the investigation is usually shifted to a general contractor or construction manager. For small projects, the owner should have a simple and clear policy for doing its own initial investigation. Of course, our office can always assist in this process.

All incidents involving gravity-related risks or industrial code violations resulting in injuries to construction workers must be considered serious. This is true no matter how minor or inconsequential an accident seems. Even minor injuries can develop into career-ending injuries, thereby exposing property owners to astronomical damages.

Feb 10 – East End Exec Breakfast: Labor & Employment Update for 2016

Posted: December 17th, 2015

February 10, 2016

Labor & Employment Update for 2016
Our next East End Executive Breakfast event will feature an interactive panel of Long Island professionals discussing important legal and practical updates on a wide range of Labor and Employment topics for business owners, CEOs, managers, in-house counsel, and human resources professionals. Join us as we host Irv Miljoner, Director of the Long Island District Office, U.S. Department of Labor’s Wage & Hour Division, together with Markowitz, Fenelon & Bank as we address employment law issues that impact our business community.

February 10, 2016
8:00 am to 10:00 am

Sea Star Ballroom
431 East Main Street, Riverhead, NY 11901

CMM Managing Partner, Joe Campolo
will moderate our panelists as they discuss:

Independent Contractor Classification
Overtime Exemptions
Differences between Federal and NY State Labor Law
Shared Work Program
Individual Liability
Private Lawsuits

The event is complimentary but reservations are required.

PANELISTS:

Irv Miljoner

Director of the Long Island District Office

U.S. Department of Labor’s Wage and Hour Division

Irv Miljoner is the Director of the Long Island District Office for the U.S. Department of Labor’s Wage and Hour Division. The agency enforces the Fair Labor Standards Act, which sets minimum wage, overtime, recordkeeping requirements, and child labor rules, prevailing wage laws, the Family Medical Leave Act and other federal labor laws.

Irv has 40 years of federal government service, with 23 years in the Labor Department’s Long Island office, where he’s been District Director for the Wage Hour Division for the past 20 years. During that time, his office has recovered over $40 million in wage underpayments for workers who hadn’t received lawfully due wages, and protected the interests of the employer communities against unfair competition.

Joseph Mammina
Partner, Markowitz, Fenelon & Bank, LLP

Joseph Mammina is a Partner at Markowitz, Fenelon & Bank where he established his practice at the firm by providing income tax planning for closely-held businesses, their owners, along with tax-consulting services in the areas of business acquisitions/dispositions and real estate transactions.

Joseph also created niche in non-profit and governmental accounting and auditing especially “yellow book” audits and consultation with rules and regulations for governmental entities such as local townships and fire districts.

Arthur Yermash, Esq.
Senior Associate, Campolo, Middleton & McCormick, LLP

Arthur Yermash advises business owners, executives, and general counsel on legal and business strategies in his role as Senior Associate at Campolo, Middleton & McCormick, LLP. He has drafted and negotiated hundreds of contracts for various business-related matters including employment, non-competition, non-disclosure, licensing, supply, and distribution agreements.

Arthur’s practice also includes the representation of clients in investigations by regulatory and government agencies including the New York State Department of Labor, the United States Department of Labor, the New York State Attorney General’s Office, and the Equal Employment Opportunity Commission.

MODERATOR:
Joe Campolo, Esq.
Managing Partner, Campolo, Middleton & McCormick, LLP

Joseph N. Campolo is the Managing Partner of Campolo, Middleton & McCormick, LLP. With broad experience in both commercial litigation and transactions, Joe advises business owners, executives, and Board members on legal and business strategies.

Holiday Party Guide for Employers

Posted: December 7th, 2015

By Christine Malafi

It’s that time of the year again! Many employers are hosting holiday parties, where employees, and sometimes clients and customers as well, get a chance to relax, socialize, and take a break from the work to celebrate the holiday season. Raising employee morale during the holiday season is a good way to say thank you for their work all year, but despite the fun of a party, there are potential legal issues which could quickly make you forget the fun. To avoid problems from arising, it is advisable to act before the party to minimize potential headaches after the party.

Serving alcohol is always a risk–the potential for accidents and injuries, as well as inappropriate behavior, and lawsuits. Risk can be reduced by advanced planning. While liability generally does not attach to “social hosts” for accidents or injuries suffered off-premises by third parties as a result of alcohol served by the host, at least in New York, if an employee leaves a holiday party, and travels directly to another state, New York law may not prevent liability. Additionally, no one under the age of 21 years may be served alcohol at a holiday party, or liability will result if someone is injured by that underage holiday party drinker. The safest way to prevent potential liability relative to physical injuries involving alcohol use at a holiday party is to hire bartenders to serve the alcohol and make sure alcohol is not served to underage party guests.

Another risk associated with alcohol consumption is the level of “celebration.” As an employer, you do not want managers and/or supervisors acting inappropriately or provocatively, or flirting, with your staff. Some people tend to exude an excessive amount of cheer during the holiday season. The same workplace standards of a non-hostile work environment and non-harassing conduct apply to and should be enforced at holiday parties.

If the party will have music, employers should check the song list, and gift-giving should have limits. Joking and teasing, while permissible, should be without the bounds of a work setting. You don’t want to start the New Year with a humiliated employee commencing a hostile work environment or discrimination lawsuit.

Additionally, it is probable that a court will find that employees’ attendance at a holiday party relates to their employment, even if attendance is voluntary, potentially triggering workers’ compensation benefits for injuries sustained during the party (and potentially afterwards). Employers must take reasonable steps to protect their employees (and guests) from injury, whether at the workplace or an off-site location where the holiday party is held.

Finally, to avoid potential wage claims, if attendance at the party is required, the party should be held during normal work hours.

To help set your mind at ease before your holiday party, consider doing the following:

Have transportation to and from the party available;
Hire a professional bartender or caterer with sufficient liability insurance;
Provide non-alcoholic drinks;
Serve food, not only snacks;
Have management/supervisors at the party on the lookout for excessive drinking and/or inappropriate behavior;
Have a holiday lunch instead of a dinner;
Invite employees’ family members to participate in the party;
Make sure employees know that they do not have to attend the party if they chose not to; and
Do not focus on one religion or holiday to the exclusion of any employee’s beliefs or observances.

A little advance planning can go a long way to help the success of your holiday party!

If you have any questions about your holiday party, please feel free to contact us.

Happy Holidays!

November 2015 Legal Brief – Firm Newsletter

Posted: November 23rd, 2015