Lawyer Joke Friday

It's that time again! Here's a cute one.

A command was given to a dog: "SPEAK!" The dog responded: "Not without my lawyer present."

Have fun this weekend, folks.

My Kingdom For An Apprenticeship Program!

With all apologies to Richard III, in New York, more and more municipalities and their agencies are requiring contractors and subcontractors to have a New York State registered apprenticeship training program in order to bid on and be awarded local public works construction contracts. Apprenticeship programs are used by contractors to train inexperienced workers and usually consist of classroom and on-the-job training.

For union contractors, the requirement is not a problem typically since most, if not all, participate in their union’s apprenticeship program. However, for contractors that are not affiliated with a union, the requirement can be catastrophic as a vast majority of them cannot afford the costs of implementing and maintaining an apprenticeship program; the administrative red-tape as well as the protracted amount of time for program approval add to the problem significantly. Where such a program is required, non-union contractors lacking same are ineligible to bid on contracts put out by public entities that have the requirement and are thus excluded from competitive bidding. Accordingly, taxpayer costs increase due to a lack of true competitive bidding/pricing, and the pool of public works contractors becomes limited. Further, those that rely on public work, but which cannot afford an apprentice program, either have to reduce their workforce or cease business operations entirely. Quite a draconian result, but one which is becoming increasingly familiar.

Recent New York State budget cuts have served only to make matters worse as personnel shortages add to already long delays in the approval and registration process. If staffing is not restored fully by the State, there may come a point in the near future where it will be necessary to put a freeze on approving and registering new apprenticeship programs, thereby giving those which have them in place already a decided, and perhaps permanent advantage.

Hey, It's Lawyer Joke Friday.

It's summer! Now's the time for cookouts, swimming, lots of fun and ... [heavy sobbing] the Yankees being swept this week in three games by, of all teams, the Colorado Rockies [A LOT more heavy sobbing]. Anyhoo, here's this week's lawyer joke which, interestingly enough, is ABOUT lawyer jokes.

Q. What's wrong with Lawyer jokes?

A. Lawyers don't think they're funny, and nobody else thinks they're jokes.

Enjoy the weekend.

EFCA Follow Up

Mike Doyle submitted a comment to my earlier post entitled Holy Unionization, Batman! It's The Employee Free Choice Act wherein he asserts that the Employee Free Choice Act (the "EFCA") "actually keeps the 'secret-ballot' election process and adds the new majority sign-up process alongside of it." My thanks to Mike for reading and posting. However, I must, respectfully, disagree with Mike's analysis.

Here's the pertinent portion of EFCA in issue:

"SEC. 2. STREAMLINING UNION CERTIFICATION.

(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:

(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a)."

Nowhere in the quoted text or in any other portion of EFCA have I seen any reference to the choice of a certification process. In point of fact, EFCA, in its current form, totally eliminates the secret ballot election and makes plain that the National Labor Relations Board MUST certify the representative upon a finding that a majority of the employees in the bargaining unit signed valid authorizations. Period. End of story. Discretion need not apply.

Keep those cards and letters coming.

Holy Unionization, Batman! It's The Employee Free Choice Act.

So, last night I'm switching between the Yankees game and C-Span (have I really become THAT dull?) when I come across the U.S. Senate's debate on the Employee Free Choice Act (the "EFCA"). I was well aware of the EFCA previously, but last night's debate really hit home ... I guess it was the large, pretty, multi-colored posterboards used by Robert Menendez (D. N.J.) to illustrate just how bad workers have it by NOT being unionized. Funny, I didn't hear the good Senator mention how union dues can be used to help pay for those Lincolns and Cadillacs typically driven by business agents. Oh, well.

Anyway, for those of you who are unfamiliar with the proposed legislation, the EFCA would amend the National Labor Relations Act by, among other things, requiring certification of a union as the exclusive representative of employees without an election where a majority of the employees in the bargaining unit have signed valid authorizations. In addition, the EFCA would require mediation and then arbitration of the terms of a first collective bargaining agreement where the parties could not agree within certain time periods, and would impose significant fines against employers in cases involving certain unfair labor practices. The House of Representatives has already passed the bill.

This is pretty scary stuff, folks. Most disturbing, IMHO, is the provision concerning certification of a union without an election. Typically, when an employer is presented by a union with authorization cards, the employer exercises its right to a representation election of employees using secret ballots because authorization cards generally may not be a reliable signal that an individual really wishes to join a union. In many cases, an individual will sign such cards based upon a misunderstanding, a misrepresentation by the organizer, or merely to get the organizer to stop bothering them. The EFCA would eliminate the election altogether and force an employer to become a union shop without any recourse to verify the true intent of its workers. I guess they call it the Employee Free Choice Act for a reason.

If the EFCA becomes law, employers will likely incur increased wage costs of at least 30% . If they are to stay in business at all, employers will either have to absorb those costs or pass them on to the ultimate consumer ... that's US. It may then be time to think about cancelling that nice, long awaited vacation out West and, instead, taking a walking tour of Hoboken.

The Prequalification Nightmare

Prequalification is generally a means by which a municipality (whether directly or through one of its agencies) screens potential vendors in advance to determine their suitability to bid on municipal contracts. In that regard, contractors are typically provided with a questionnaire (which must be executed under oath) seeking information, among other things, about their business background, financial status, prior work experience, prior or existing violations of law, and whether the contractor has been terminated from other projects. The theoretical underpinning of the procurement process is generally to protect the public by ensuring that parties contracting with a muncipality are ethical. If certain criteria are met, the contractor is placed on the list of prequalified vendors. Depending on the municipality, prequalified lists are typically reviewed at least once annually to ensure that firms which no longer meet prequalification standards are removed from the list.

Usually, trouble rears its ugly head when the vendor, mistakenly, negligently or intentionally, fails to provide complete and/or accurate information as requested. If a rational basis exists, the failure or refusal to furnish such information could result in removal from the prequalification list, a determination by the municipality that the contractor is a non-responsive bidder and, ultimately, the contractor’s inability to be awarded public work in that municipality. In my experience, even a good faith, de minimis mistake in failing to disclose required information may result in removal from the prequalification list and permanent prejudice to the contractor.

Of course, contractors complain to no end about the unfairness of such an outcome; however, given the intent of public procurement laws and regulations, it is an outcome that might be avoided by reading and completing prequalification questionnaires very, VERY carefully.

Win A Prize

Check out Nicole Black's excellent and very funny blog called Legal Antics. Nicole is having a contest for submissions of the funniest law blogs. You could win a prize and have a few laughs in the process.

Lawyer Joke Friday

YAY! It's Friday, again. So, you all know what THAT means.

Q. What's the difference between a carp and a lawyer?

A. One's a scum-sucking, bottom-feeding scavenger. The other is a fish.

Have a great weekend.

Agency Home Aide Workers Exempt From FLSA

Yesterday, in the case of Long Island Care at Home, Ltd. v. Coke, the U.S. Supreme Court held unanimously that home aide workers furnishing services through an employment agency are exempt from the payment of minimum wages and overtime under the Fair Labor Standards Act, as amended (the "FLSA").

Although the FLSA specifically exempts aides hired directly by the elderly or the infirm (see 29 U.S.C. Sec. 213(a)(15)), the Coke case resolves for the first time the issue of whether such workers are exempt if hired through an agency; the statute is silent on this point. In addition, the case resolves conflicting regulations issued by the U.S. Department of Labor (the "USDOL") regarding the exemption status of those workers when hired through third-parties such as employment agencies. Justice Breyer, writing for the Court, stated that deference should be given to the USDOL as the expert in the area, and that the agency's most recent interpretations of the FLSA favor the exemption.

The holding in Coke reverses the decision of the Second Circuit Court of Appeals which had invalidated the USDOL's regulation exempting home aide workers from wage protections. As expected, employer representatives have applauded the Court's decision while workers and labor unions are unhappy with it.

Not for nothing, but the Court's decision seems logical inasmuch as the FLSA already exempts the workers if they are hired directly by an individual; hiring them through an agency shouldn't change the exemption status. Of course, legislation may be enacted eventually to moot the holding in Coke by extending FLSA wage protections to home aide workers for all purposes; however, until such time, the exemption applies across the board.

Off-Topic ... The Curse Of The Giambino

The sad, pitiful tale of Jason Giambi, the “Giambino” (with all apologies to one George Herman “Babe” Ruth), continues. Major League Baseball Commissioner Bud Selig is “asking” Giambi to cooperate and ‘fess up about his alleged former steroid use ... or else! Giambi is being “encouraged” to tell all to former Senator George Mitchell who has been appointed to investigate the steroid-abuse scandal. If Giambi doesn’t come clean in about two weeks (in whole or in part), it appears that he could be subject to fine or suspension. Giambi, through the Major League Baseball Players’ Association, would likely challenge the imposition of any penalty in arbitration.

Much of the current ado centers around Giambi's recent comments to USA Today that he “was wrong for doing that stuff" and that he, as well as other players and ownership “made a mistake.” Although Giambi didn’t define the term “stuff,” the Commissioner and his minions appear to have determined that it refers to steriods. While that conclusion seems to be based on innuendo and nothing more, the fact of the matter remains that Giambi has not admitted to any wrongdoing. None, nada, zero. Despite this, he is now being pressured to talk in order to avoid the Commissioner’s wrath but, in that process, he might incriminate himself.

Can anyone say “extortion?” Where’s the hot lamp in the room that’s not air conditioned? Can the slow, incessant dropping of water be far behind? As a die-hard Yankees fan who bleeds pinstripe blue (hey, as a child I lived through the years of Celerino Sanchez, Horace Clarke, Danny Cater, et al.), I have never been a fan of Giambi or his famous compadres who have been accused of steroid abuse. However, dislike for Giambi’s talent or lack thereof doesn’t mean that he should be subjected to the Spanish Inquisition-like treatment he’s getting currently from major league baseball. I don’t practice criminal law (never had the stomach for it) and am self-actualized enough to admit that I don’t know all that much about it. That being said, if Giambi elects to speak to those investigating the matter, I DO know of two words that will likely serve him quite well ... “Fifth Amendment.”

Lawyer Joke Friday

In order to vary it up a bit, here's a real-life tidbit involving a lawyer questioning a witness:

Lawyer: What happened then?
Witness: He told me "I have to kill you because you can identify me."
Lawyer: Did he kill you?

You just can't make up this stuff, folks.

Interviewing Former Employees By Opposing Counsel

I’m currently involved in two, back-to-back administrative Hearings, so I haven’t posted in a few days. Despite being preoccupied with advocating for my clients (go figure), an article in today’s New York Law Journal peaked my interest, so I wanted to share it with you.

The article, discussing the Court of Appeals’ recent, unanimous decision in Muriel Siebert & Co. v. Intuit Inc., is written by Roy L. Reardon, Esq. and Mary Elizabeth McGarry, Esq. In the Siebert case, the Court held that counsel may conduct an ex parte interview of an adversary's former employees (even a high-ranking officer who had been privy to privileged information concerning the litigation) without being disqualified from the case, “so long as measures are taken to steer clear of privileged or confidential information." In short, the Court stated that the interviewing attorney was required to comply with all ethical standards in such a situation, which can include directing the witness not to disclose privileged or confidential information, or answer questions that would lead to such disclosures. Based on my reading of the opinion, if an attorney attempts to elicit privileged or confidential information from the former employee, it is likely that disqualification could result.

Sorry, folks, but there’s nothing sarcastic to say about this one. I’m juz reporting the fax (I know ... that’s a bad one, but I couldn’t resist).

Lawyer Joke Friday

Where DOES the time fly? It's Lawyer Joke Friday again and here's a really good one.

Q: What's the difference between a lawyer and a wheelbarrow full of doo doo?

A: The wheelbarrow.

Feel free to use this one at parties and other social gatherings.