Just Blog Rollin' Along

Thanks to Jill Pugh, Esq. from the Employment Law Blog in Washington State for adding a permanent link to "Juz The Fax" on her blog roll. Jill's site is terrific, so check it out. In other news, THIS humble, little blog is beginning to get some nice attention after only a short time in existence. Happy, happy, happy am I.

And Now, Another Installment of "Lawyer Joke Friday!"

Today's ditty comes from wunderkind associate, Ian Schlanger, Esq. ... the man, the myth, the legend. Ian says this one's a long-time favorite of his.

A lawyer named "Impos Syble" was shopping for a tombstone. After he had made his selection, the stonecutter asked him what inscription he would like on it. "Here lies an honest man and a lawyer," said he. "Sorry, but I can't do that," replied the stonecutter. "In this state, it's against the law to bury two people in the same grave. However, I could put `here lies an honest lawyer'." "But that won't let people know who it is!" protested the lawyer. "Sure it will," retorted the stonecutter. "People will read it and exclaim, "That's impossible!"

Thanks, Ian. I told you I'd put your name in lights (or at least on a backlit computer screen).

The Politics Of A Protective Order

Another in the seemingly never ending series of labor cases favoring undocumented workers is Rengifo v. Erevos Enterprises Inc. (Case No. 06 Civ. 4266, S.D.N.Y. - 3/20/07).

In Rengifo, Plaintiff commenced an action against his former employers to recover, inter alia, unpaid overtime wages under the Fair Labor Standards Act and New York Labor Law. In an effort to impeach credibility, Defendants sought disclosure of Plaintiff's social security number, immigration status, tax returns, and authorization to work in the United States. Plaintiff moved for and was granted a protective order which precluded Defendants from obtaining or using any such information during discovery or at trial.

The Court held that the personal information sought was collateral and not relevant to the issue of whether Plaintiff had worked overtime as alleged. Even though the Plaintiff had submitted an incomplete set of pay stubs and no records of hours worked to support his claim, the Court found that Defendants (as employers) possessed sufficient time and payroll data to determine if and how much overtime was worked. Further, the Court relied on its own precedent in concluding that inquiry into a plaintiff’s immigration and work authorization status, when irrelevant to any material issue at bar, posed a danger of intimidation that would inhibit plaintiffs from pursuing legitimate claims. Essentially, the Court utilized a balancing test to conclude that Defendants’ right to impeach Plaintiff’s credibility was outweighed by the public interest in allowing undocumented employees to enforce their rights in a climate free from the fear of being reported to immigration authorities.

On the surface, these types of cases are problematic because they generally elicit a visceral reaction from those on both sides of the illegal immigration debate; they also give rise to allegations of judicial "politicking" in favor of a particular group. I'm not going to add fuel to the fire either way since it's a no-win situation. However, when viewed objectively (and I do try SO hard), the Court’s decision in Rengifo appears correct.

Gee, They Like Me. They Really Like Me!

Many thanks to the following for adding "Juz The Fax" to their blog rolls:

Sui Generis

Evan Schaeffer's Legal Underground

A Buffalo Lawyer

Small Town Lawyer

All of the above are excellent, informative and run by really, REALLY nice folks. Thanks y'all.

It Ain't So Easy To Whistle While You Work.

Whistleblowers took a heavy right-cross to the jaw today when the U.S Supreme Court held that they cannot collect a share of monies recovered in a qui tam suit filed under the False Claims Act (31 U.S.C. Sec. 3729, et seq.) unless they are the “original source” of the information proving the fraud. For the uninitiated, a qui tam suit allows a private citizen to: (a) file an action in the name of the United States alleging fraud by government contractors and other entities who receive or use government funds; and (b) share in any monies recovered. The term qui tam means, literally, "he who sues on behalf of the king as well as for himself." Archaic, yes, but up until today, qui tam suits seemed to be a pretty good deal for plaintiffs. I'm not so sure about that now.

In Rockwell International Corp., et al. v. United States, et al. (No. 05-1272), the Court, by a 6-2 majority, held that a former engineer at Rockwell International (“Rockwell”) was not the “original source” of information used to expose fraud at Rockwell’s nuclear weapons facility in Colorado. Accordingly, he could not collect any share of the millions from a jury verdict and award that Rockwell had been ordered to pay as a penalty for engaging in the fraud alleged. The Court held that an "original source" under the statute must have “direct and independent knowledge” of the information alleged in the lawsuit. Here, the engineer failed to qualify since he had merely “predicted” that the company's system for creating solid, “pondcrete” blocks from toxic pond sludge and cement would not work because of problems in piping the sludge. This prediction proved correct in part, but the cause for the failure was not due to piping problems; rather, the block had become "insolid" due to the leakage of toxic sludge. After the engineer was laid-off and prior to his taking legal action, the leakage issue was publicly disclosed by the news media. The Court found that the engineer did not know for a fact that the block failure had occurred or that Rockwell had made false statements about it to the government until approximately one year after his lay-off and after the information had become public.

While the Court's ruling rests on a hyper-technical interpretation of the statute, it reduces significantly the incentive for individuals to furnish information critical to exposing fraud against the government. In my view, it makes little difference as to whether the engineer had direct, first-hand information or whether that information came to him from another source which led ultimately to proving the actual fraud (which it did). This is a classic example of form over substance which, in the long run, only encourages wrongdoing and hurts the taxpayer. Congress would do well to remedy this statutory crater post-haste.

It's All In The Game - Workers' Compensation, That Is.

Just a quick note pointing you to today's "Decision of Interest" in the New York Law Journal. In Matter of Bogert v. E.B. Design Air, Inc. (NYLJ, 3/27/07), the Appellate Division, Third Department, affirmed a Decision of the Workers' Compensation Board holding that an employee who was injured while participating in a softball game at a company picnic was entitled to workers' compensation benefits. The case offers a good discussion of the criteria used to award coverage with respect to off-duty athletic injuries under New York's Workers' Compensation Law.

As Summer approaches and softball season comes into full swing, the lure of company outings to boost employee morale may be very tempting. However, given the holding in Bogert as well as New York Court of Appeals precedent, employers may do well to simply order a bucket of chicken, tell folks that attendance is not mandatory and that the gathering has no specific business purpose, turn on the karaoke machine, and hang a sign in a conspicuous place saying "EAT AND SING AT YOUR OWN RISK."

"Comp Time" Confusion.

There appears to be a lot of confusion out there about compensatory time ("comp time"). Many private employers seem to be under the impression that their non-exempt, hourly employees can be allowed to accumulate and use comp time (e.g., time off at a later date) in lieu of overtime wages. Such a practice is not permitted under the Fair Labor Standards Act (the "FLSA") since it results in the employee forfeiting the FLSA overtime premium for work performed in excess of 40 hours in a workweek (commonly known as "time-and-a-half") in exchange for time off calculated at the employee's regular wage rate. Only public sector employers such as a government agency, police or fire department, etc., may provide compensatory time to employees. See 29 U.S.C. Sec. 207(o), et seq. for more on this. Note that comp time is concerned with overtime involving non-exempt, hourly employees. It does not apply to those who are exempt from the FLSA's overtime provisions (e.g., those in certain executive, administrative, professional and other categories defined by the statute).

Comp time should not be confused with "flex-time," which is a different animal altogether. In a flex-time scenario, a private employer may properly establish flexible work schedules for its non-exempt, hourly employees within the context of a 40-hour workweek without violating the FLSA since no overtime is worked under such an arrangement. One caveat about flex-time - if your State has a daily overtime standard requiring payment of overtime in excess of a certain number of hours per day, flex-time schedules may have to be altered accordingly.

The New Basics of Record Disposal in New York.

Identity theft seems to be all the rage these days. From e-mail phishing to sorting through people's garbage cans, identity theft is big business for the crooks as well as a financial nightmare for the victims. In an effort to help reduce or even eradicate the problem, New York General Business Law §399-h became effective as of December 4, 2006. The new law sets forth procedures that businesses must follow for disposing of paper and electronic records which contain an individual’s "personal identifying information" such as social security numbers, driver's license information, a mother's maiden name, financial service account numbers, checking or savings account numbers, and credit or debit card numbers.

Disposal of such records is prohibited unless: (a) the record is shredded prior to its disposal; (b) the personal identifying information contained in the record is destroyed; (c) the record is modified to make the personal identifying information unreadable; or (d) the person or entity disposing of the record takes actions consistent with commonly accepted industry practices that are reasonably believed will ensure that no unauthorized person will have access to the personal identifying information contained in the record. Quite frankly, I have no idea what that last option entails, but it appears to be a catch-all, safe-harbor type of provision to cover most any instance. I'm certain, however, that its vagaries will be the subject of a sufficient amount of litigation seeking clarification, thereby resulting in additional litigation seeking further clarification (and so on) of a statutory section which should have been clear in the first place. Makes you sort of dizzy, doesn't it?

Most every type of paper and electronic record is covered as long as it contains "personal identifying information." The statute doesn't contain any specific time frame for disposal, but requires that appropriate disposal methods be used when the record is discarded. Civil penalties of up to $5,000 per violation can be imposed, although acts arising out of the same incident or occurrence constitute a single violation. On a positive note, it's an affirmative defense to show that "due diligence" was used in the attempt to properly dispose of the records. Uh, oh, there's another term that will likely need clarification through litigation, and so on, and so on ...

Is A Business Card An Advertisement?

Effective February 1, 2007, New York imposed new advertising rules for attorneys which are severely restrictive. The website of the New York State Bar Association contains a press release stating that the purpose of the rules is "to protect consumers from inappropriate, misleading, or overly-aggressive advertisements." To my mind, the real intent is to put the brakes on the television and print ads showing the traffic accident victim all bandaged up, in traction, and with casts on his/her arms and legs while "1-800-Get-A-Lawyer-Now" flashes in neon colors at the bottom of the screen. I think they're a real hoot, but acknowledge that they've contributed generally to the devolution of the legal profession's reputation back to the pleistocine era.

One of the things that has really taken me aback about the new rules is the possibility that an attorney's business card might be construed as an "advertisement." No, you haven't entered the Twilight Zone just yet. You read it correctly ... a business card! This is an issue that I first became aware of when reading Sui Generis, Nicole Black's excellent law blog.

Rule 1200.1(k) defines the term "advertisement," in pertinent part, as "any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services [emphasis added]." Apparently, there's been some debate among the legal cognoscenti as to whether an attorney's business card comes within that definition. As I read it, if a business card contains the attorney's name, address and other contact information (e.g., fax, telephone number and e-mail), it's not advertising as such information does not concern the lawyer or law firm's "services." From a purely academic standpoint, I can see where the issue could be clouded somewhat if the business card contains a slogan, hyperbole or other form of puffery ... and hey, what IS it with those awful and ubiquitous "scales of justice" logos anyway? Nonetheless, given that the drafters' real intent (IMHO) is to stop the media blitz of poor taste, high pressure, huckster-like advertisements favored by a certain segment of the bar, I think it's a real stretch to equate a business card with commercial exploitation of the type contemplated by the powers that be. To conclude otherwise could open the door to all kinds of bizarre results. What's next? Attorney stationery? The office display of Bar Admission Certificates to non-clients? You get my drift.

The organization known as Public Citizen has commenced an action to stop enforcement of the new rules on the grounds that they are too vague and constitute an unconstitutional restriction of First Amendment freedoms. I tend to agree. Had good taste and good sense in advertising been used initially, it's unlikely that the restrictive rules would've been enacted at all. Here's the bottom line ... if the lawsuit is successful, will those who previously used or contemplated using the offending ads have an epiphany and, as a result, exercise a modicum of self-restraint? Nah! I don't think so.

Sub-Prime Slime. An Off -Topic Rant.

My overall intent for this blog is to stick to issues of legal interest while throwing in a little humor every now and then (witness "Lawyer Joke Friday") to break up the monotony. Yes, the law CAN be somewhat boring from time to time; just pick up a law review article and tell me how fascinating it is to keep diverting your eyes back and forth between text body and footnotes ad nauseum. I THOUGHT you'd agree.

Sometimes, I feel there are issues which require a bit of venting and a dose of common sense. The recent sub-prime mortgage fiasco is one of them. The airwaves are currently filled with analysis, insights, commentary, Monday morning quarter-backing, and prognostications concerning that debacle. What disturbs me most is that the matter apparently caught a number of mortgage lenders, financiers, bankers, and stock market professionals by surprise. What the heck did they THINK was going to happen? It's a recipe for financial disaster when mortgage loans are made on the basis of 100% financing to persons whose income is merely "stated" rather than actually verified. At some point, something had to give, and it did so in a very big way. So now, foreclosures are running rampant, mortgage lenders are pulling loans from dubious borrowers who were formerly considered acceptable risks, the stock market (despite its resilience) takes a wicked tumble, and the real estate industry declines even further. The only bright spot I see in all of this is that those with excellent credit may get better deals as lenders move in a flight to quality borrowers.

Could any or all of this have been avoided? Well, let me just say that I'll bet even the whiz-kid 5th graders on television could have figured out this one.

A Note of Thanks.

I would like to thank Nicole L. Black, Esq. for providing me with invaluable information concerning the start-up of this blog. Nicole is the host of a terrific blog called "Sui Generis - a New York law blog" that served, in large measure, to inspire my creation of Juz The Fax. It's a very useful and informative resource. Thanks again, Niki.

Announcing ... Lawyer Joke Friday!

There's an old adage about being able to laugh at one's self. I think that applies to one's job as well. To that end, I'm adding a feature to the blog entitled "Lawyer Joke Friday!" That's right, folks ... lawyer jokes! Every Friday, I'll post a hopefully humorous ditty about my favorite profession.

Many are funny, most are pretty corny. Some of them may ... and let me emphasize the word "may" ... contain a tiny, itsy bitsy, miniscule kernel of truth. Maybe you'll laugh, maybe you'll roll your eyes, or maybe you'll have some sympathy for the brave legal eagles who try daily to extricate their clients from the wide variety of messy (and sometimes incredibly ridiculous) situations in which they find themselves. But, hey ... it's all in good fun, right? RIGHT? So, without further ado, here we go:

Q. How can a pregnant woman tell she's carrying a future lawyer?

A. She's got an uncontrollable craving for baloney.

If you think you can do better (and I'll bet you can), drop me a line with a proposed submission. If your joke is posted based on my sole discretion to do so, I'll identify the author and he/she can revel (or not) in the fact that they've used up 10 seconds or less of their 15 minutes of fame.

Employer Labor Law Postings - What's So Funny (Or Tough) 'Bout Peace, Love AND Compliance?

It never ceases to amaze me. I'll walk into a business office and look at the bulletin board (or other conspicuous posting area) and find that there's little to no compliance with Federal and State labor law posting mandates. Postings are either non-existent or contain outdated information. What gives? It's easy enough to comply. The postings generally provide information to employees regarding things such as the minimum wage, overtime, family medical leave, polygraph protection, OSHA requirements, equal employment opportunity, discrimination, workers' compensation, and unemployment insurance.

The U.S. Department of Labor and each State Department of Labor provide the requisite posters for free; in many cases the posters can be downloaded from the particular State Department of Labor website. See the Law Links section of this blog for links to the U.S. Department of Labor and the NYS Department of Labor; those in other jurisdictions can run an on-line search to visit their State Department of Labor internet site. For those who want to spruce up the joint a bit, there are several merchants (brick and mortar as well as on-line) that sell laminated, "all-in-one" combination posters for ease of compliance having an average cost of $20-$30. Depending on the statute involved, the failure to meet posting requirements can result in costly penalties which are easily avoided if an employer gives the matter even minimal consideration and acts accordingly.

So, what's so funny (or tough) 'bout peace, love AND compliance? Nothing, really.

Electronic Discovery - Be Scared ... Be Very, VERY Scared!

As many of you may know, new amendments to the Federal Rules of Civil Procedure took effect on December 1, 2006, which require parties involved in Federal litigation to produce "electronically stored information" (e.g., e-mails, instant messages and the like) as part of the discovery process. I think it's likely that that most states, including New York, will eventually pass amendments to their civil practice laws which mirror the Federal Rules.

This is pretty scary stuff for even experienced attorneys. In addition to the normal discovery headaches involving paper documents, attorneys and their clients now must be concerned about issues such as electronic document retention/destruction policies and their enforcement, electronic inventories, storage methods, authentication, spoilation, back-up, and security.

It's bad enough having to plow through the voluminous paper documents that many clients maintain. Now, attorneys may have to wend their way through hundreds, if not thousands of e-mails and other items created and/or stored on each of the client's computers and portable media to ensure compliance with the Federal Rules. It's a veritable nightmare! Then there are the questions to which few answers exist at this early stage. Here are a couple for you to chew on ... Could purging, erasing or copying over of back-up data, even if performed in good faith, constitute virtual shredding once litigation has commenced? Is business related e-mail, sent from the workplace through an employee's personal e-mail account, subject to disclosure? I'm getting nauseous just thinking about it. Where's the Pepto when you need it?

Electronic discovery has arrived. Its stealth and expansive scope may broadside many an unwary practitioner. Be very, VERY scared, but most of all, be careful!

New York's Recent Workplace Violence Law for Public Employers

On March 4, 2007 ( a Sunday, no less), New York Labor Law Section 27-b went into effect. The law is also referred to as the "New York State Public Employer Workplace Violence Prevention Law." In a nutshell, the new law is intended to prevent violence in public workplaces by means of employer risk assessment as well as the implementation of response and prevention strategies, including employee training programs . All New York public employers (except for schools covered by the Education Law) are affected.

Despite my initial skepticism, I've come to appreciate that the new law is not simply just another governmental hurdle for employers to navigate. It deals with real life situations. About a week after the law went into effect, I was advised of a workplace violence incident involving an employee of a local public employer. Fortunately, no one was physically harmed and the employee was removed from the premises. The employee has been suspended without pay and termination of the employment is now being sought based on that incident as well as other, unrelated disciplinary charges.

I guess the occurrence of the incident so soon after the effective date of the statute really hit home for me. Sometimes, government gets it right ... I think it did in this instance. Go figure!

New Beginnings

Starting a new blog is a bit daunting. So, too, is being a sole practitioner. Both endeavors provide an enormous amount of freedom while imposing great responsibility at the same time. Perhaps they're simply two sides of the same coin.

I've never written a blog before, so I'm learning as I go. Comments, suggestions and yes, even constructive criticism are welcome. All I ask is that you PLEASE be kind. So now, let's get on with the show.