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Women in the Workforce: Lean In & Obama’s Executive Order

Posted: April 27th, 2014

By: Joe Campolo, Esq. email

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Earlier this month Facebook Chief Operating Officer Sheryl Sandberg released a new edition of Lean In, her 2013 best-selling book for working women, refocusing itfor college graduates entering the workforce. A central theme of the book is negotiation—in particular, negotiating salaries.

“It never even occurred to me to negotiate my first salary,” Sandberg writes in her book. “I waited for someone to tell me how much money I’d be earning so I could figure out where to live. I ended up supplementing my income by teaching aerobics classes on the weekend.”

Studies show that most women simply do not bother negotiating their salary. One study at Carnegie Mellon University found that “57 percent of male students negotiate but only 7 percent of females tried to negotiate for a higher offer,” according to Sandberg’s book.

Sandberg points to Professor Hannah Riley Bowles, who studies gender and negotiations at Harvard’s Kennedy School of Government who believes that, in order to walk away from the negotiation table successfully, women have to “come across as being nice, concerned about others and ‘appropriately’ female.”

Be “relentlessly pleasant,” Mary Sue Coleman, President of the University of Michigan says, according to Sandberg. Her advice:

Smile frequently
Express appreciation
Express concern
Invoke common interest
Emphasize larger goals
Approach negotiation as problem-solving rather than a critical stand
Sandberg’s disclaimer: it’s not exactly ideal to have to succumb to female stereotypes in order to earn what we deserve. But, hey, pragmatically, we can change leadership mindset after we play the game and position ourselves as leaders. It’s a means to an end, she says.

On April 8, 2014, President Obama took two actions intended to promote pay equity for women and minorities. First, the President signed an Executive Order that prohibits federal contractors with contracts exceeding $10,000 from prohibiting or retaliating against employees who choose to discuss their compensation with one another. In issuing the Order, the President observed that as a policy, “pay secrecy fosters discrimination.” If women don’t know they are underpaid, they are less likely to ask for more money. The Executive Order aims to help them discover and expose pay discrimination.

Next, the President issued a Memorandum directing the U.S. Department of Labor (DOL) to issue regulations that would require federal contractors and subcontractors to report summary employee compensation data, including by race and sex. The DOL has been given 120 days to develop the regulations. The purpose of reporting information is “so pay discrimination can be spotted more easily” and corrected.

For both men and women in the business world, learning to aptly negotiate is a crucial aspect of long-term professional success. In today’s world, the ability to successfully negotiate is a necessity. These recent actions should help close the pay gap by empowering women to negotiate for equal pay.

http://www.businessweek.com/articles/2014-04-11/sheryl-sandbergs-refocused-lean-in-helps-women-negotiate-salary

http://www.whitehouse.gov/the-press-office/2014/04/08/executive-order-non-retaliation-disclosure-compensation-information

Everyone Needs a Will, But No One Wants to Do It

Posted: April 27th, 2014

By: Martin Glass, Esq. email

Tags: ,

I think this is something that I’ve known even before I started practicing as an Estate Planning attorney. Matter of fact, it probably predates my practice by decades, if not centuries. What am I talking about? I’m talking about the tendency to hesitate (if not complete avoid) writing a Will. Both in my practice and my everyday life, I hear from people who recognize and admit that they should put a Will in place, but despite their best intentions, they simply don’t do it. Why is that? What keeps us from doing what we know we should do?

In my experience, a major driving factor which deters many people from preparing a Will is that they don’t want to face their own mortality. Or worse yet, I hear them say, “If I write a Will, I’m going to die.” Many people feel that if and when they do memorialize their last wishes, they’ll be tempting fate or inviting something terrible to happen. Personally, I believe that the day you’re going to die is already written somewhere. And whether you write a Will or not, that date is not going to change. While this tempting of fate is intellectually an irrational and unfounded fear, it’s hard to minimize the psychological effect it has on people and stops them cold from even pondering writing their Will.

To people with this mindset, there is no easy answer. Without diminishing the very real distress that many people face when forced to think about their last wishes, I would offer this bit of advice: Get over it. I hate saying that, and I certainly don’t intend to be rude, but you have no choice. You need only consider what’s at stake after you die to truly understand that reality. Do you really want the court to make decisions for you as far as who raises your children or where your assets go or even who gets to control them? Most likely the answer is no. I’m not saying it will be a comfortable conversation, and you might even disagree with your spouse (or children) about your final plans. But given the alternatives, a little bit of discomfort is really worth the potential chaos that you could leave your family in should you choose not to have that conversation and take action.

Another reason I hear when people avoid preparing a Will is that they don’t think they need one. If truth be told, there are some instances when a person truly doesn’t need one. That, however, is the exception to the rule. Everyone needs to understand one very simple thing. If you die without a Will, it falls on the court to decide not only how your assets are distributed, but who gets to distribute them, when they get distributed and who will be responsible for raising your minor children after you die. If you want to have control of all that, you need to prepare and complete a Will.

While no two estates are alike, it’s typically not that expensive to have at least a basic Will prepared, especially considering how expensive it can become if one wasn’t done. The reality is that not everyone requires a complicated estate plan or some type of trust. For the average person, it’s not that expensive and will be money well spent. If nothing else, it will provide you (and the rest of your family) with peace of mind knowing that everything has been set in place and done properly.

Although no one can force anyone to write a Will, I believe each of us has an obligation to those we love to do everything we can to make our final wishes known. If you haven’t already done so, I would urge you to write one for not only your own sake, but, more importantly, for the sake of those you leave behind. They are the ones who will be left to pick up the pieces.

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

Delaware’s Bid to Offer Confidential Arbitration Heard by Sitting Judges

Posted: April 27th, 2014

Delaware’s unique effort to offer private arbitration presided over by sitting judges to those who could afford it officially ended last month when the United States Supreme Court declined to hear arguments as to whether lower court rulings barring the program should be reversed.

Delaware, which has long enjoyed a business-friendly reputation and whose Court of Chancery is well respected for its business expertise, established its controversial arbitration program in 2009. The program was limited to business disputes of at least one million dollars involving Delaware entities. Sitting judges on the Court of Chancery would preside over the disputes in exchange for a $12,000 state filing fee and $6,000 per day in arbitration fees. Documents would not be filed or made available to the public. As with conventional arbitration, the hearings would remain private and the results confidential, with the added bonus of having some of the country’s most respected judges handling the disputes.

But in 2011, the Delaware Coalition for Open Government commenced an action to challenge the confidential arbitration program, arguing that the cases in the program were truly civil court proceedings—heard in a Delaware courthouse by Delaware judges—and thus should be open to the public. Another concern prompting the challenge to the program was that business law would be made behind closed doors without anyone knowing about it.

The lower court found that the arbitration program violated the First Amendment. The Third Circuit upheld that ruling last fall, finding that the concept of “private arbitration” using state resources violated the public’s right to access court proceedings. The Court of Chancery then asked the Supreme Court to take the case, but on March 24, the Court declined. The Supreme Court’s decision not to hear the case leaves the Third Circuit’s determination in effect, officially ending Delaware’s effort to generate revenue and bolster its reputation for business expertise at the expense of public access to the judicial system.

Additional resources:
Davidoff, Steven M., “Appeals Court Throws Out Confidential Arbitration in Delaware.” New York Times, October 23, 2013.
Hals, Tom, “Delaware Loses Final Bid to Revive ‘Secret Courts.’” Reuters, March 24, 2014.
Kendall, Brent and Peg Brickley, “Supreme Court Declines to Revive Delaware Arbitration Program.” Wall Street Journal, March 24, 2014.
Resnick, Judith, “Renting Judges for Secret Rulings.” New York Times, February 28, 2014.

Yermash quoted in “The Legal Ramifications of Workplace Bullying”

Posted: April 16th, 2014

The much-publicized investigation into alleged bullying on the Miami Dolphins football team has brought workplace bullying into the national spotlight.

More than a third of American workers say they’ve been bullied at work, according to a survey by the Workplace Bullying Institute, a national organization that defines workplace bullying as repeated, health-harming abusive conduct committed by bosses and/or co-workers. This may include verbal abuse, intimidation, humiliation and sabotage that prevents work from getting done.

While bullying is not healthy for the victim or the workplace, it’s not necessarily unlawful. Though so-called “Healthy Workplace” bills have been introduced in 26 states since 2003, including New York, none of these anti-bullying bills have become law.

However, Title VII of the Civil Rights Act prohibits offensive conduct tied to membership in a protected class. If an employee is mistreated or subjected to a hostile work environment because of his or her sex, color, race, religion or national origin, an employer may face a harassment charge.

In the Miami Dolphins case, for instance, player Jonathan Martin reportedly was called racial slurs as part of the bullying.

Whether or not the abuse is unlawful, it’s in an employer’s best interest to create a workplace in which bullying is not tolerated.

Most employers have an anti-discrimination or anti-harassment policy in place, but most don’t go far enough to address bullying, said Arthur Yermash, a senior associate at Campolo, Middleton & McCormick in Ronkonkoma. In the wake of the Miami Dolphins scandal, Yermash has received inquiries from clients about whether they should expand their policies.

“Employers should have a policy addressing bullying,” he said. “It should set rules for conduct and provide a path for an employee that feels he has been bullied to report the behavior.”

Bullying often arises when two employees “can’t get along for whatever reason,” Yermash said. “Or you might have two people doing the same job, and one thinks he’s better than the other and doesn’t want the other person there. He might start messing with the other person’s work product or otherwise interfering so it’s difficult for that person to do his job.”

When a complaint is filed, the employer should investigate it and take any necessary action immediately, Yermash noted.

“That’s the best way an employer can protect itself,” he said. “If there’s a policy in place and someone acts on that policy, and the employer does nothing about it, it’s opening itself up to potential liability.”

Read the full article on LIBN.

Spot On Magazine: Malafi Appointed to Pro Bono Scholars Task Force

Posted: April 10th, 2014

Christine Malafi partner

Published in Spot On Magazine

Christine Malafi, partner at Campolo, Middleton & McCormick, LLP, was appointed by Chief Administrative Judge Gail Prudenti, to the New York State Pro Bono Scholars Task Force. Gail Prudenti will be spearheading the task force, and Senior Associate Judge Victoria A. Graffeo will be heading the Advisory Committee. This program, created by Chief Judge Jonathan Lippman was put in place to confront the crisis in our country in delivering legal services to the poor and disadvantaged.

The goal of the task force is to assist the State and all of its law schools in identifying pro bono placement programs and securing their availability to law school students. The Pro Bono Scholars Program was the focus of Chief Judge Lippman’s State of the Judiciary Address given on Feb. 11, 2014. “It’s an honor to be a part of this Task Force and I look forward to working with the judiciary and fellow task force members.” said Christine Malafi about her recent board placement within the program. In January 2004, she was appointed Suffolk County Attorney, as the first woman and youngest person ever appointed to the position. In that position for eight years, Christine was the chief legal officer of the County, supervising a legal team of over sixty-five attorneys in the Suffolk County Department of Law. Malafi’s list of accomplishments does not end there, she also taught both undergraduate and law classes at Long Island University, C.W. Post and Touro Law Center.

The Pro bono Scholars Task Force will give law students the opportunity to dedicate their last semester of law school to providing pro bono services to the poor. The students will receive credit towards their degree for their work, and will remain part of their law school’s educational stewardship while simultaneously gaining practical experience in their field of work, and learning vital practical skills.

The Board of Law Examiners has already approved the Pro Bono Scholars Program. The option of participating in this initiative will be offered to all of New York’s 15 law schools, as well as other schools that wish to participate.

Additional members of the board of the Pro Bono Scholars Program include David Schraver, President of the NYS Bar Association, Carey Dunne, President of the NYC Bar Association, as well as many other local bar association who are working closely with Judge Lippman and Prudenti in this effort. The long-term goals of this program are to give all prospective New York bar law applicants the opportunity to enroll in the program, and devote one-sixth of their law school education to pro bono work for the less fortunate. The hope is to extend the program around the country to offer these services to our most vulnerable citizens, and in turn ushering a new era in the legal profession. This reform in legal education is the start of a new way of revitalizing the law system and adapting it to our society’s ever changing needs.

http://spotonmagazine.com/local-long-island-lawyer-appointed-nys-pro-bono-scholars-task-force/

When is a Sales Commission “Earned”?

Posted: April 9th, 2014

Businesses involved in the sale of a particular product or service will, of course, employ salespeople to sell those products or services. In nearly all cases, sales representatives are paid some form of monetary commission based on their level of sales using some set of variables (i.e. percentage of each sale; percentage of each new contract; total number of sales, etc.).

While determining how a commission is calculated may be simple, figuring out when the commission is “earned” for purposes of it being a payable wage can sometimes be difficult in the absence of a written agreement or policy. A recent decision in the Commercial Division, New York County dealt with precisely this issue.

In Linder v. Innovative Commercial Systems LLC, 2013 NY Slip.Op. 51695(U) (Bransten, J.), Plaintiff Gary Linder (“Linder”) commenced a lawsuit against his former employer, Innovative Commercial Systems LLC (“ICS”), to recover sales commissions he believed he was owed after he was terminated. ICS is in the business of installing and maintaining residential and commercial security systems. As a salesperson, Linder was paid commissions based upon each new contract he procured for ICS, with a varying percentage based on whether it was an installation or maintenance contract. However, the actual commission payment was not made to Linder at the time the contract was procured, but instead when the customer paid the ICS invoices under that contract. This practice continued for a number of years and ICS would regularly provide Linder with all documentation regarding the account receivables and copies of checks when customers would make payments. Linder even assisted in collection efforts to obtain payments from delinquent customers on his accounts. As collection attempts on delinquent accounts continued to come up short, so too did Linder’s sales totals and, in 2009, he was fired.

After his termination, Linder commenced the lawsuit against ICS asserting numerous claims including breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment, and New York Labor Law violations – all relating to an alleged failure by ICS to pay him sales commissions after he was terminated. Both parties ultimately moved for summary judgment.

According to Linder, he “earned” his full sales commissions at the time each contract was procured and thus, he should have received what he was “owed” in commissions even after his termination. Indeed, Justice Bransten, citing Yudell v. Ann Israel & Assocs., Inc., 248 A.D.3d 189, 190 (1st Dep’t 1998), acknowledged that New York courts have held that once a commission is “earned,” it becomes a wage that cannot be forfeited and termination would not affect the employee’s right to receive that commission. Linder also pointed to the fact that there was no written agreement between the parties regarding the commissions, so the commission was earned “upon the employee’s production of a ready, willing and able purchaser of the services” (quoting Pachter v. Bernard Hodes Group, Inc., 10 N.Y.3d 609 (2008)).

However, ICS argued that Linder only “earned” his commissions when payments were made by customers and, as such, he would not be owed anything post-termination. The Court agreed. Citing to the same Court of Appeals decision in Pachter, Justice Bransten noted that the Court there had found that the absence of a written agreement was not determinative. In fact, the Court in Pachter held that when there is no written agreement, the commission is “earned” based on the parties’ express or implied agreement, and when there is an extensive course of dealings over a number of years, an implied contract is created regarding when a commission is “earned” and becomes a wage.

Justice Bransten, in granting summary judgment in favor of ICS and dismissing Linder’s complaint, held that based on the parties’ decade-long course of dealing which documented how commissions were calculated and the history of ICS only paying commissions to Linder upon payment from customers, there was an implied agreement as to the commission structure and ICS complied with its obligations regarding payment of commissions through the time Linder was eventually terminated.

The Linder case presents an important issue that should be reviewed by all employers if their business is one in which they are paying out sales commissions to employees. Having a written, agreed upon procedure or policy laying out how and when commissions are earned, and following through with that procedure or policy, is vital to avoid problems such as the one presented in this case.

New York Unemployment Law Update: Severance May Disqualify Individuals from Receiving Unemployment

Posted: April 9th, 2014

While employers are not obligated to issue severance payments (unless they have specifically agreed to do so in a written employment or other agreement), many do offer severance to terminated employees to shield themselves from potential litigation or as a courtesy for the employee’s years of service. But there have been recent changes to the New York unemployment insurance law that all New York employers should be aware of before offering a severance package to a departing employee.

Most notably, the change in the law prevents employers from ignoring unemployment insurance notices as part of an agreement with a former employee to not contest unemployment. Effective Oct. 1, 2013, employers are required to respond to certain New York Department of Labor (NYDOL) unemployment insurance correspondence within specified periods of time or they will face penalties for late responses to request for information. Previously, employers could ignore and disregard correspondence from the NYDOL if, for instance, they agreed, in a severance agreement with a particular employee, not to contest unemployment insurance. The employer’s response to a request for information must contain adequate information for the DOL to make a correct determination regarding benefit eligibility in the New York Unemployment Insurance Fund.

If an employer fails to submit a timely and/or adequate response, the employer’s unemployment insurance account will be charged for the benefits paid to the employee, even if the employee is overpaid, and even if he or she would have otherwise been deemed ineligible for unemployment benefits.

Employers need to be diligent in responding to inquiries from the NYDOL or risk being charged for unemployment insurance benefits to an individual who is ineligible or not entitled to those benefits. Moreover, although it is not recommended to agree to not contest unemployment, employers who choose to do so are cautioned to include in a severance agreement that nothing in the agreement can interfere with the employer’s obligation to respond adequately and truthfully to inquiries from the NYDOL.

Additionally under the new law, an individual cannot obtain unemployment insurance benefits during any week in which his or her severance pay exceeds the maximum weekly unemployment benefit rate – currently $405 and increasing to $420 in October 2014. Ineligibility for unemployment insurance benefits will continue for each week in which the weekly severance payment exceeds the maximum weekly unemployment benefit rate. In the event the employer structures the severance payment as a lump sum, the New York State Department of Labor will employ a formula (using the former employee’s prior actual or average weekly pay) to determine the number of weeks of ineligibility for unemployment insurance benefits.

The new disqualification provision only applies to applications for unemployment benefits filed after January 1, 2014, and not to previously filed claims. New York employers should keep these new unemployment disqualification provisions in mind when designing separation packages and communicating with former employees.

The timing of severance payments, in particular, is a crucial consideration. If the employer wants to enable the former employee to receive unemployment benefits immediately after his or her termination date, then the employer may wish to commence severance payments 31 days after the employee’s termination date.

Also, effective January 1, 2014, the reform increases employers’ assessments and contributions based on the Federal Unemployment Tax Act (FUTA). Previously, the FUTA tax was assessed on the first $8,500 of each employee’s earnings. As of the new year, employers’ taxes and contributions are assessed on the first $10,300 of each employee’s earning and will increase annually thereafter until 2026.

Mandela – Master Negotiator

Posted: March 27th, 2014

By: Joe Campolo, Esq. email

Tags:

Nelson Mandela was the “greatest negotiator of the twentieth century,” wrote Harvard Law School Professor and Program on Negotiation Chair Robert H. Mnookin in his book,Bargaining with the Devil, When to Negotiate, When to Fight. In Lessons from a Master Negotiator: Nelson Mandela, published in Harvard Law School’s Negotiation Briefings, dealmakers worldwide can learn from the South African anti-apartheid revolutionary, politician, philanthropist and “master negotiator” and his legacy in South African history.

The article suggests that by listening, observing, and caring enough to learn about the grievances and worries of those we interact with, we can best respond to their core, intense and very personal needs. Which can then help to soften the resistance those people have regarding the issues that matter most to us. This skill is often referred to as emotional intelligence, described as the ability to accurately read our counterparts’ emotions, manage our own feelings, and successfully mediate conflict.

The Master Negotiator article examines Mandela’s negotiation style and gives a background on how the late statesman and activist dismantled apartheid in South Africa. Read more below:

Some people learn to negotiate on the job, in a classroom, or in a therapist’s office. In Nelson Mandela’s case, according to Bill Keller’s New York Times obituary of the legendary South African, who died on December 5 of last year, “prison taught him to be a master negotiator.”

Soon after his arrival at South Africa’s brutal Robben Island prison for a life sentence, Keller writes, Mandela “assumed a kind of command.” He befriended many of his white captors, whom he introduced to visitors as “my guard of honor.” He tried to persuade younger political inmates to analyze their opponents’ strengths rather than plunging headlong into conflict. During his 27 years of imprisonment, Mandela deeply absorbed the value of patience, discipline and empathy.

Mandela may have honed many of his negotiation skills in prison, but he was a born dealmaker. Those of us in realms less challenging than apartheid-era South Africa can learn from his beliefs, decisions and actions.

In the late 1940s Mandela became active in the African National Congress, a well-established South African political organisation dedicated to securing full citizenship for blacks. As he rose through the ranks and gained influence, Mandela began to question the ANC’s reliance on peaceful protest to make headway. Without vetting his views with ANC leadership, he publicly spoke out in favor of armed resistance, only to be censured for diverging from the organization’s policy.

Decades later Mandela took a similar approach when making a much more fateful break with the ANC’s party line. In 1985, 23 years into his imprisonment, numerous signs — including international pressure, a devastating trade boycott and growing violence between protesters and the police — suggested that the apartheid regime was weakening.

The ANC had taken the stance that it would not negotiate with the South African government. Mandela himself had personally rejected the possibility of negotiation in numerous public statements, once saying, “Only free men can negotiate.” The government took a similarly hard line against negotiation with the ANC, believing that to do so would signal weakness.

Both sides insisted that it would not negotiate unless the other made significant concessions beforehand. Given the entrenched stalemate, it was remarkable that Mandela decided to try to launch negotiations between the ANC and the government. Even more strikingly, he did so without any authority to speak on behalf of the ANC, which was run as a collective.

Leading from behind

Believing that his fellow ANC leaders would disagree with his decision, Mandela covertly sent a letter to Kobie Coetsee, South Africa’s minister of justice, in which he offered to meet secretly to discuss the possibility of negotiations. Coetsee eventually agreed, and the two men launched clandestine talks that laid the groundwork for a democratic, post-apartheid South Africa.

For most of us, secretly moving forward with a negotiation against the wishes of our superiors and colleagues would be a risky, even foolish move. Business negotiators typically must secure buy-in from others in their organization before breaking from past practice.

For such contexts, however, Mandela — who was raised by a prominent tribal chief — offers another useful shepherding metaphor. As a result of the long hours he spent in childhood listening to the consensus-building conversations of the tribal council, Mandela observed that the chief “stays behind the flock, letting the most nimble go ahead, whereupon the others follow, not realizing they are being led from behind.”

This quotation suggests the value of lobbying others in support of your cause, then letting them make your argument to other reluctant parties. Mandela’s stealth overtures remind us that those who see clearly what others cannot may have a responsibility to use their powers of persuasion to win over naysayers – or to act without them when necessary.

One noteworthy quality of Mandela’s was his ability to negotiate calmly with his enemies at the same time that he was absorbed in a passionate, all-consuming struggle against them.

Even as Mandela largely succeeded in regulating his own emotions, his keen sense of empathy enabled him to identify ways to capitalize on the emotions of his counterparts and adversaries.

Emotional intelligence is likely to be a valuable skill for negotiators, allowing us to accurately read our counterparts’ emotions, manage our own feelings and successfully mediate conflict. To cultivate these skills, spend time listening to and observing your fellow negotiators, making note of their insecurities and grievances. Doing so should enable you to address their core concerns, which could have the effect of softening their positions on the issues that matter most to you.

As illustrated by his eventual willingness to negotiate with the apartheid government, Mandela was at heart a pragmatist rather than an ideologue. His decision to initiate negotiations from prison may serve as the most prominent example of his willingness to change his positions in the service of his greater goals.

Not negotiating with an enemy on moral grounds can be a legitimate decision. Because our moral judgments tend to be based on intuition, however, instead of on reason, they can be dangerous traps. When we take a hard-line stance without thoroughly analyzing the likely costs and benefits of negotiating, we risk allowing our principles to get in the way of the greater good. Wise negotiators follow Mandela’s example and rationally consider whether or not to negotiate

http://www.pon.harvard.edu/category/publication-archives/negotiation-monthly-archives/