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Robert Zausmer’s Article Featured on Front Cover of The NYLJ’s Litigation Supplement

Taking the ‘Bull’ Out of Jury Selection

There is no such thing as the “science” of jury selection. Any who tells you that is full of “Bull.”

By Robert N. Zausmer | February 08, 2019

One of my wife’s favorite TV shows is a weekly series on CBS called “Bull.” For the uninitiated, the premise of “Bull” is that Michael Weatherly (formerly a supporting actor on my wife’s absolute favorite TV show “NCIS”) is Dr. Jason Bull, who is described in a Google synopsis as a “charming and cocky psychologist” who owns a “trial consulting firm … which employs (besides himself) teams of experts (using) high tech data to understand jurors, lawyers, witnesses and (the litigants)” to construct “effective narratives” to help attorneys who employ his company to win cases.

The show may be entertaining, and even seem realistic, to audience members who never have been exposed to the wonderful world of litigation. However, for those of us attorneys who try cases, especially before juries, what is depicted on “Bull” is entirely disconnected from our reality and—there is no other way to say it—total bull. (Full disclosure: I have never actually watched an entire episode of “Bull.” I either drift off to sleep after watching the opening scene and a couple of minutes of what follows. Or, during the baseball season, I watch a few minutes and then go downstairs and watch my beloved San Francisco Giants on MLB Extra Innings, or some other televised sporting event.)

However, what follows are my own observations on what really matters when engaged in jury selection (consider them suggestions or helpful hints) in contrast to the fantasy world depicted on “Bull.”

Be Yourself. I have two priorities in trying cases before juries. I want the jurors to like me (as a person and lawyer) and to like my case.

During the media frenzy over the “OJ trial,” numerous attorneys were interviewed on radio and TV, giving their take on what was transpiring daily in the courtroom. One of them, Gerry Spence, a well-known trial attorney from Wyoming, was a regular on the Imus morning radio show. Spence once told a story which had a lasting impact on my approach to trying cases before a jury. He was describing his first major trial in which he believed he had a “can’t lose” case worth lots of money. As a young plaintiff’s attorney, he felt that he had to be an “attack dog,” and, therefore, mercilessly went after every participant in the trial, his adversary attorney, the adversary’s client and witnesses, and even the trial judge. At the end of the case, the jury came back with a verdict against him. Spence was totally devastated. He spoke to the jurors afterward and asked how they could find against his client when he had such a great case. One of the jurors agreed with him and then said, “Mr. Spence, we did think you had a strong case, so how come you made us hate you?”

When I interview jurors in voir dire, that profound statement always is in my mind. I consider myself to be an honest person, with integrity, a “straight down the middle guy,” and not flamboyant or flashy. That is exactly how I try to present myself to the jurors. I may not dazzle jurors with my personality, but I believe jurors have always responded well to my persona.

Conversely, I have seen many lawyers completely turn off jurors, either by being overly aggressive, obnoxious and disrespectful to their adversaries (and even to the court) either because they are inherent jerks or think jurors (or their clients) are impressed with the “macho” approach.

Trust Your Gut. I am a very strong believer in personal chemistry, especially in dealing with, and selecting, jurors. Although I do not have Dr. Bull’s psychologist credentials (he’s actually portrayed on the show more as a mentalist), I always have had a good sense of how to “read” people and how to connect with them. The problem is that in voir dire you basically have 5-6 minutes to evaluate persons, who you never met before, as suitable jurors. So, basically, I trust my instincts. If a juror’s background may not make him/her a perfect fit for the case, but I feel a good connection to the person, they make the cut. The converse also is true.

The irony of jury selection, which also makes it so interesting, is that in today’s world, where people are completely immersed in communicating electronically, voir dire is that rare opportunity for face-to-face interaction. I try to keep my questions, and interplay with jurors, low-key and friendly. I use humor when appropriate. I have one quirk (which hopefully endears me to some persons in the general pool): namely, I always use one reference to a lyric from a classic rock song in questioning one of the jurors at some point during the voir dire. Obviously, if I am using a line from Alice’s Restaurant (“there was a third possibility we hadn’t considered”), I don’t do it with a “twenty something” juror who may not know who Bruce Springsteen is, much less Arlo Guthrie.

Also, I do not pander to jurors who I have identified as having a particular interest. For example, if I spot a juror in the pool wearing a Mets cap, and he makes it into the selection group, I will make some kind of a baseball related comment to a juror sitting three seats away from him, even though the purpose is to endear myself to the Mets cap wearing potential juror three chairs to his left.

Don’t Avoid Bad News. One of the biggest mistakes I see attorneys make in voir dire is not making jurors aware of “problems” in their case. While proper protocol is that the attorneys cannot go into any great detail about the facts of the case, you are committing trial suicide if you select a jury and they first learn about a major deficiency, shortcoming or some other significant impediment to your case in the opening statement (or, even worse, from the witness stand).

Several years ago, I was representing the plaintiff in a multi-million-dollar brokerage commission case based on an oral commission agreement—an obvious problem. However, I danced around it by telling the jurors in voir dire that, under the law, brokerage agreements could be oral as well as written and “could they accept the law as the court charges even if they don’t agree with it.” My adversary, a top-notch, very experienced trial attorney, then got up and (in his own “folksy” style) completely won the jurors over by asking each of them whether they would ever buy an expensive item (such as a house or building) on a “handshake.” By the time we finished jury selection, I was totally despondent, since it was obvious that his “reality check” approach had trumped my legal rationalization concerning oral agreements. Fortunately for me, the case ended in a mistrial. I had learned my lesson. In the retrial (against a different attorney), I went into depth (even though, technically, I was not supposed to) in the voir dire to explain why my client had not been able to secure a written commission agreement.

Deal With All Controversy Outside of the Rest of the Jurors’ Presence. I always explain to jurors that if they are asked any questions that make them uncomfortable they should ask to discuss their issues outside the presence of the rest of the panel. Unfortunately, not all jurors get the message. However, it is imperative that you avoid embarrassing a juror publicly, or that the juror discusses something in front of the panel that will negatively impact how the rest of the pool will think about your case. Also, especially in civil cases where you only get three preemptory challenges, when you need to talk a juror off the panel (even when he/she doesn’t take the hint), that must be done outside the presence of the rest of the jurors. You never want to appear to be badgering a juror, or trying to persuade the juror to dismiss him/himself, in front of the rest of the prospective panel.

Explain to the Jurors Up Front How the Voir Dire Process Works. This is related to the preceding point. Several years ago I was called for jury duty and became a member of a prospective panel. It was a great educational experience. I decided not to disclose to my fellow potential jurors that I was an attorney. During the voir dire, the attorneys (who also did not know I was one of them) kept taking jurors outside. For some reason, they remained outside for extended periods. The problem was they never explained to the panel why they were interviewing individual jurors outside the presence of the rest of the group. The voir dire room was located in the same area as the courthouse cafeteria. The jurors in the room got really annoyed, and several became convinced that the attorneys were in the cafeteria having coffee while the rest of the jury was sitting around. I made sure after that experience to fully explain to my jury panels at the beginning of my presentation everything that was going to occur in the voir dire process.

These are just my own thoughts, inspired by watching “Bull,” about the real world of jury selection. I have no doubt that if 100 lawyers were asked to share their thoughts on the subject, there would be hundreds of other observations on how the process should be done. And, maybe, that’s a good thing (especially for young lawyers who are just beginning to learn their craft).

However, here’s the bottom line: There is no such thing as the “science” of jury selection. Any who tells you that is full of “Bull.”

 

Click here to view the article at the New York Law Journal’s website

Client Alert: NYS Legislature Brings New Hope to Child Sexual Abuse Victims

Victims of child sexual abuse have a powerful new weapon to achieve justice against their abusers.

On January 28th, 2019,  the New York State Legislature approved a bill greatly increasing the time within which a person who was sexually abused as a child
(under age 18) may bring a civil suit against the person or institution causing or allowing the abuse.

The period of time (statute of limitations) allowed for criminal prosecutions of such crimes was also increased.   The Bill applies the Criminal Law statute of limitations for the specific crime and begins to run from the person’s twenty-third birthday or from the time the offense is reported to a law enforcement agency or statewide central register, whichever occurs first.

Notice of claim provisions (which generally require written notice to a municipality within 90 days of an event) are eliminated in cases of child sexual abuse.

This Bill was passed in response to recent widespread findings of sexual abuse of children in religious institutions and other settings.

Child sexual abuse victims may now bring suit for sexual abuse until they reach age fifty-five.  There is a one-year extension to commence suit for those over the age of fifty-five. This extension begins six months from the time the bill is signed into law.  It is expected that the governor will sign this bill immediately.

If you or someone you know is a victim of child sexual abuse, you should consult an attorney, even if you have been told previously that no legal action could be taken.

 

For more information on Meyer Suozzi’s Personal Injury Law Practice, click here.

Client Alert: 2019 Winter Alert

A year has elapsed since the Federal Tax Cuts and Jobs Act (the “TCJA”) became effective1 and it has been nearly five years since New York’s estate tax law was last overhauled.  Since New York’s estate tax law changes were scheduled to become fully phased-in as of January 1 of this year, now is an excellent time to review the key principles under the Federal and New York State transfer tax laws, along with planning opportunities to which taxpayers may avail themselves in the current favorable wealth transfer environment.

Federal

  • The Federal estate and gift tax exemption for 2019 has increased to $11.4 million per person, from $11.18 million in 2018. The exemption, which is indexed annually for inflation, was temporarily doubled in 2018 from $5 million (indexed for inflation) under the TCJA and is set to return to $5 million (indexed for inflation) at the end of 2025.
  • Federal estate and gift taxes are “unified” under a single transfer tax system, with a unified rate schedule, and a unified credit. Taxable gifts made during lifetime reduce the amount of the exemption available for estate tax purposes at death.
    • Because of the structure of the unified gift and estate tax system, the TCJA recognized the possibility that taxpayers may prior to 2025 make sizeable gifts that are within the TCJA’s increased exemption amount, but die after 2025 when the exemption has reverted to $5 million, resulting in the deceased taxpayer
      having used more than the available exemption.  This circumstance is commonly referred to as a “clawback” scenario, and the TCJA includes language authorizing the Treasury to prescribe IRS regulations to address the issue.  The IRS issued proposed regulations in November of 2018 that provide that taxpayers who take advantage of the increased exemption will not be adversely affected by the post-2025 decrease in the exemption.  The regulations have not yet been adopted as final.
    • Present interest gifts that do not exceed the statutory gift tax exclusion amount will not reduce the amount of exemption available for estate tax purposes at death.  The gift tax exclusion amount is $10,000, indexed for inflation occurring after 1997.  The exclusion amount for 2019 is $15,000, unchanged from 2018.  The exclusion covers gifts a donor makes to each donee, each year.  If the donor of the gift is married, gifts to donees made during a year can be treated as split between the spouses, even if the gift is actually given to a donee by only one of them, by the filing of a gift tax return signed by both spouses.
  • Federal Provisions For Married Taxpayers.
    • Married taxpayers may leave an unlimited amount of assets to a spouse and qualify for the marital deduction, if such assets are given outright, or in a qualifying trust, typically a “qualified terminable interest property trust” (“QTIP Trust”).  At the surviving spouse’s death, such assets may be subject to estate tax depending upon the surviving spouse’s available exemption.
    • Under the portability provisions initially implemented in 2010, any Federal gift and estate tax exemption that remains unused at the death of a spouse is generally available for use by a surviving spouse, as an addition to the surviving spouse’s exemption, through the timely filing of a Federal estate tax return.  A surviving spouse may use the predeceased spousal carryover amount in addition to his or her own Federal exemption for taxable transfers made during life or at death.  The amount received by the surviving spouse is called the deceased spousal unused exclusion, or DSUE amount.
    • The Generation-Skipping Transfer Tax (GST) is the Federal transfer tax which may be imposed on transfers that “skip” a generation (generally transfers by gift or at death to grandchildren and more remote descendants). The GST tax is in addition to gift and estate taxes.  Currently, the GST exemption amount runs in tandem with the gift and estate tax exemption and is $11.4 million as of January 1, 2019, scheduled to revert to $5 million at the end of 2025, as indexed for inflation. The portability rules do not apply to the GST Exemption.
    • The Federal estate, gift and GST tax rate remains at 40%.

New York State

  • The NYS estate tax exemption (the “NYS Basic Exclusion Amount”) for 2019 has increased to $5.74 million from its previous level of $5.25 million. In future years, the exemption will be adjusted annually for inflation, to equal the amount of the Federal exemption prior to and as if the TCJA had not been enacted.2
    • New York’s estate tax law includes a quirky feature commonly known as the “cliff.”  If the New York taxable estate exceeds the Basic Exclusion Amount by more than 5%, the credit is phased out completely and the entire taxable estate will be subject to NYS estate tax.  This tax structure has been referred to as “confiscatory,” in that it can lead to the absurd result of causing the beneficiaries of estates between $5,740,000 and approximately $6,286,700 to receive, after estate taxes, less than the beneficiaries of an estate valued at $5,740,000.  Taxpayers whose estates are valued near the “cliff” may wish to include a formula provision, sometimes referred to as a “Santa Clause,” pursuant to which a portion of the estate will pass to charity if the formula results in the imposition of less NYS estate tax.
  • New York does not impose a gift tax. A temporary provision requiring inclusion of gifts made within 3 years of death in the gross estate of a New York resident decedent sunsetted on January 1, 2019, but the recently released Fiscal Year 2020 NYS Executive Budget includes proposed legislation that would extend the sunset to January 1, 2026, to coincide with the expiration of the increased exemptions under the TCJA. The proposed law must now make its way through the NYS Legislature, but passage seems likely in light of the current political configuration in Albany.
  • NYS Provisions For Married Taxpayers.
    • An unlimited marital deduction is available under New York’s estate tax law.
    • New York law does not provide for spousal “portability” to allow a surviving spouse to use his or her deceased spouse’s unused gift and estate tax exemption.
  • New York does not impose a GST tax for transfers made on or after April 1, 2014.
  • The top New York estate tax rate is 16%.

 

Planning Considerations

  • Credit Shelter Planning. While the federal exemption amount, coupled with federal spousal portability, currently renders it possible for married couples to shelter from federal estate tax up to $22.8 million without the need to rely on complex testamentary documents, credit shelter trust planning for married couples nevertheless continues to occupy a vital estate planning role for several reasons.
    • State Estate Taxation.  New York is one of a handful of states that continues to impose a separate estate tax, and does not recognize spousal portability.  Accordingly, credit shelter planning is necessary so as not to lose the benefit of the NYS exemption of the first spouse to die.
    • Trust Protection.  Establishment of any trust can provide protections not present with an outright distribution.  These include protecting assets from both the beneficiary, a divorcing spouse, and third-party creditors, and providing greater assurance that children and grandchildren will receive an inheritance.
    • Asset Appreciation. The potential for asset appreciation is a consideration which runs across a range of planning concerns.  Establishment of a credit shelter trust may prevent the post-transfer appreciation in the value of the assets from being subject to estate tax on the death of the survivor.  However, no income tax basis step-up will be available for the assets held in a credit shelter trust upon the death of the surviving spouse.
    • Formula Planning Caution.  Testamentary formulas based on the federal exemption amounts, including credit shelter planning (as well as GST formula planning), must be reviewed periodically, particularly in times such as the last several years when exemption amounts have changed dramatically.  The new exemptions may result in overfunding or underfunding amount passing to or for the benefit of a surviving spouse, and may result in an unnecessary state estate tax.
  • Sunsetting and Potential Earlier Repeal. The increased estate, gift and GST exemptions, currently at $11.4 million per person, are temporary and set to expire automatically on December 31, 2025.  Currently, available planning options may be lost if action is deferred until the eleventh hour.  Moreover, in the present unsettled political climate, it is conceivable that the increased exemption amount could be lowered prior to 2025. A Presidential election will be held in 2020, and several potential Presidential candidates have voiced proposals to ratchet the exemptions back to $5 million and lower.  For instance, Senators Cory Booker, Bernie Sanders and Elizabeth Warren have each floated separate proposals that would lower the exemption to the pre-2010 threshold of $3.5 million, coupled with higher maximum rates.
    • Gifting.  Lifetime gifting, outright or in trust, can result in substantial transfer tax savings.  Gifting provides the benefit of removing the post-transfer appreciation in the value of the assets from the donor’s estate.  For New York domiciliaries, since a State estate tax is imposed but not a gift tax, gifts can result in a substantial reduction in State estate tax liability.  Many gifting vehicles, moreover, offer discounting advantages that may be absent from or less effective than those associated with transfers at death.  However, since the recipient of a gift receives the donor’s income tax basis in the gifted assets — as opposed to the recipient of a testamentary transfer receiving an income tax basis as of the date of death — any proposed gift must measure the potential capital gain consequences as against potential gift and estate tax savings.
      • Dynasty Trusts. For taxpayers who wish to establish a Dynasty Trust, substantial gifts of $10 million (indexed for inflation), after factoring in any prior taxable gifts, may be made to a Dynasty Trust to which GST exemption may be allocated, exempting the trust assets from further estate, gift and GST taxation.  Creation of the trust in a jurisdiction that has repealed or liberalized its Rule Against Perpetuities can allow the trust assets to provide for future generations without being burdened by further estate, gift or GST taxes.  For those who have previously established a Dynasty Trust, consideration should be given to making additional gifts to the Dynasty Trust to take advantage of the increased federal exemption and the inflation adjustment.
      • Spousal Lifetime Access Trusts.  The Spousal Lifetime Access Trust (SLAT) can enable married couples who wish to make large lifetime gifts to descendants without a dramatic impact on their current lifestyle.  With a SLAT, one spouse makes a gift to an irrevocable trust using the donor-spouse’s gift tax exemption.  The non-donor spouse is named as a current beneficiary, which allows the trustee to make distributions of trust funds to the beneficiary-spouse during his or her life.
      • Qualified Personal Residence Trusts (QPRTs).  QPRTs are a popular vehicle for making a gift transfer, in trust, at a reduced gift tax cost of a personal residence in exchange for its continued use rent-free for a term of years.  At the expiration of the term, the residence passes to family members at no additional gift or estate tax cost.  The effectiveness of a QPRT generally increases with higher interest rates.
      • Grantor Retained Annuity Trusts (GRATs). A GRAT is a trust to which a donor irrevocably gifts assets, and in return receives an annuity for a fixed term of years. The value of the gift is equal to the fair market value of the property transferred to the GRAT minus the value of the retained annuity, calculated using the monthly interest rate under Internal Revenue Code §7520 in effect at the GRAT’s inception. Where the present value of the annuity equals the original contribution (a “near zeroed-out GRAT”), the value of the taxable gift will be nominal. Upon expiration of the fixed term, provided the donor is living, any remaining assets in the GRAT pass to the beneficiaries free of gift tax. GRATs are interest rate sensitive (the January 2019 rate is 3.4%) and as rates rise, the ability to outperform the §7520 rate becomes increasingly difficult. Thus, a GRAT may be suitable only for gifts of high income and/or appreciating assets.
      • Intentionally Defective Grantor Trusts (IDGTs).  Assets gifted to an IDGT are removed from the donor’s estate for gift and estate tax purposes, but the donor remains responsible for payment of income taxes, which payments are, in effect, additional non-gift taxable transfers to the IDGT.  In addition, an IDGT provides a vehicle for selling assets of the donor to the IDGT, without incurring a capital gain, in exchange for a promissory note.

 

Current law provides tremendous opportunities to transfer wealth and should be taken as a call to action to review your existing estate plan and, where appropriate, to implement planning opportunities provided by the temporary increased Federal exemptions.


1The Tax Cuts and Jobs Act, which became effective on January 1, 2018, implemented sweeping changes to the Internal Revenue Code, including the doubling of the estate, gift and generation-skipping tax exemptions from $5 million to $10 million per person, indexed for inflation occurring after 2011.  The inflation adjustment index was also changed.  Prior law based the computation on the Consumer Price Index for all Urban Consumers (“CPI-U”).  Under the Tax Cuts and Jobs Act, the inflation adjustment is based on Chained CPI-U (“C-CPI-U”), which generally produces a slower growing CPI calculation than the CPI-U calculation.
2Unlike Federal law under the TCJA, the State of New York continues to base its inflation adjustment computation on the Consumer Price Index for all Urban Consumers
(“CPI-U”).

For more information on Meyer Suozzi’s Wills, Trusts & Estates Law practice, click here.

 

Our Wills, Trusts & Estates Law practice group includes the following attorneys:

Patricia Galteri pgalteri@msek.com (516) 592-5790 Nathaniel L. Corwin ncorwin@msek.com (516) 592-5740
Jayson J.R. Choi jchoi@msek.com (516) 592-5799 Elisa Santoro esantoro@msek.com (516) 592-5724

 

Paul Millus Authors, “The Future of the NLRB Under Trump”

Each time there is a change of administration from one political party to another, you can rest assured that, there will be significant policy shifts. We know the biggest changes focus on the economy, foreign policy, health care, and immigration. But the National Labor Relations Board (NLRB) is a place where changes may initially go unnoticed but can have a profound effect.  You may ask, “why should that concern me? I don’t represent unions or employers that have a unionized workforce.” This article addresses why attorneys should have some working knowledge of the NLRB and the changes that are probably in store.

The Constitution of The Board and Its Jurisdiction

The NLRB has five members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records from underlying administrative proceedings. They are appointed by the President for a five-year term, with Senate consent, with the term of one member expiring each year. The NLRB enforces the rights of employees to act together to try to improve their pay and working conditions and monitors union elections to ensure that they are fair to both sides. At present, four out of the five members were nominated by Trump and one member is an Obama holdover.

The NLRB has two primary functions.  First, it addresses unfair labor practices (ULP’s) identified in Section 8 of the National Labor Relations Act (the Act).[i] Also, and more recognizable, is the NLRB’s jurisdiction over union elections.[ii]

Where a ULP is in the process of litigation before an administrative law judge (ALJ), the NLRB is authorized to seek temporary injunctions against employers and unions in federal district courts.  There are a number of additional areas that fall under the NLRB’s jurisdiction, such as interference with organization campaigns, threats, coercion or interrogations, surveillance of protected activities, the improper granting of benefits, and unlawful employee discipline including disciplinary charges in connection with the employees engaging in “concerted action.”[iii] This is where the jurisdiction of the NLRB can extend to a non-union shop.

“Concerted action” occurs when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. In fact, a single employee may also engage in protected activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. In 2014 the NLRB held that where, in a discussion about his wages, an employee cursed his manager repeatedly and shoved his chair at his manager, such activity was “concerted activity” and the conduct was not so “menacing, physically aggressive or belligerent” as to warrant the loss of protection under the Act.[iv] However, the current trend appears to be narrowing what constitutes concerted activity.[v]

Stare Decisis and the Board

Why are there such wide swings from one side of the spectrum to another in connection with NLRB decisions? Congress delegated to the NLRB Board the authority to make rules to fill in gaps within the Act. The U.S. Supreme Court has held that this authority can be exercised either through formal rulemaking procedures or, if the NLRB prefers, by the common law method of rulemaking through adjudication.[vi] Generally, the NLRB engages in rulemaking through adjudication. Under this scheme, the common law doctrine of stare decisis does not strictly apply. Some say that this promotes flexibility and change. Others point out that stability is always in doubt when one administration changes to another and clearly has different views on the management-labor relationship.

In 1975, the Supreme Court affirmed the ability of the NLRB to abruptly change precedent stating that the Board can reconsider past decisions “in light of significant developments in industrial life believed by the NLRB to have warranted a reappraisal of the question” and that a court should defer to the Board’s “special competence” in the area of labor relations.[vii] The NLRB’s freedom to decide cases within the Act’s parameters has meant that the NLRB has reversed precedent, sometimes in very rapid succession.  The primary question is: does the NLRB stray from its fundamental principles or not?

Ch-Ch-Changes . . .

Out of the gate, several important rulings by the Obama era NLRB are on the chopping block. One of those is the 2015 NLRB final rule that shortened the time frame between the filing of an election petition and the date on which an election is conducted, reducing it to as little as 14 days.[viii] The rule also compelled employers to provide employees’ contact information to union organizers, including personal cell phone numbers, e-mail addresses, and work schedules, without any opportunity for workers who do not want their personal data released to opt out. The NLRB has decided to review what employers have derogatively called the “ambush” election rule. On December 12, 2017, the NLRB issued a Request for Information on whether the rule should be rescinded or what specific provisions should be repealed. The comment period ended on April 18, 2018. Now, the lengthy rulemaking process begins.

Next, a trend developed under the Obama Administration whereby the NLRB fervently opposed employers’ efforts to restrict employees from using class actions to vindicate their rights.  Toward that end, in 2014 the NLRB held that the employer had violated § 8(A)(1) of the Act requiring its employees to agree to resolve all employment-related disputes through individual arbitration.  In the Epic Systems case, three actions were consolidated to address whether employer-employee agreements that contain class action and collective action waivers and stipulate that the employment disputes be resolved by individual arbitration violate the Act.[ix] The Supreme Court held that such agreements do not violate the Act and the agreements must be enforced as written pursuant to the Federal Arbitration Act, overruling the NLRB. While the Supreme Court resolved this issue, there is little question that had the NLRB addressed this during the present Administration, there most assuredly would have been a different outcome well before the courts became involved.

Another area where change is coming involves employees’ use of e-mail and corporate communications. In 2014, the Board decided that the use of company e-mail for organizing purposes by employees constituted concerted activity.[x] The employers argued that such a policy would lower workplace productivity, compromise digital security and ignore all other ways workers can communicate. At present, the NLRB is considering revising its e-mail rule in a separate case which involves workplace rules at the Caesar’s Resorts casino in Las Vegas. All briefing and public comments have been filed and a decision will be forthcoming.[xi] However, in its brief to the General Counsel’s office, the NLRB argued for the return to its pre-2014 rule that workers have no statutory right to use company e-mail for unionization purposes provided the e-mail restrictions on e-mail use are non-discriminatory.[xii]

An even bigger change may be coming regarding the joint employer concept which has been subject to significant evolution. In the Browning Ferris case, the NLRB considered whether it should adopt a different standard for what constitutes a joint employer in the context of a subcontracting case other than situations where the employer meaningfully affects matters related to employment relationships such as hiring, firing, discipline, supervision and direction.[xiii] As of 1984, the NLRB required “direct and immediate” control of a putative employer over employment matters.[xiv] On August 27, 2015, by a three to two margin (not unusual for the Board), the NLRB issued a decision citing “the diversity of the workplace arrangement in today’s economy has significantly expanded.”

The NLRB stated it would file the common law agency test whereby the Board may find that two or more entities are joint employers of a single workforce if they are employers within the meaning of the common law, and if they share or co-determine those matters governing the essential terms and conditions of employment. The NLRB noted that it would no longer require a joint employer to not only to possess the authority to control employees’ terms and conditions of employment but also must exercise that authority and do so immediately and not in a “limited and routine manner,” thus overturning two prior Board decisions in two earlier cases.[xv]

This brings us to September 2018, when the NLRB proposed to change the joint employer test, yet again. Under a proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.[xvi] Indirect influence and contractual reservations of authority would no longer suffice to establish a joint employer relationship.

Then there is the McDonald’s case. On December 19, 2015 the NLRB’s General Counsel commenced litigation against McDonalds USA and its franchises claiming that it violated the rights of employees who work in McDonald’s restaurants around the country by, among other things, “making statements and taking actions against them for engaging in activities aimed at improving their wages and working conditions including participating in nationwide fast food and worker protests about the terms and conditions of their employment,” also known as the fight for $15 per hour. Thereafter, this was the subject of litigation that was ongoing until very recently when the parties seemed to have settled their dispute.  Settlement agreements were entered into subject to a review by the NLRB, which resulted in the ALJ’s rejection of the settlement agreements.

While the proceeding’s primary focus was to accuse McDonald’s USA of ULP’s, the end result could have been that McDonald’s USA was found to be a joint employer with its franchisees, which could have led to allowing a certification election by the individual employees of franchisees against McDonald’s USA. Indeed, in his opening statement of the hearing in March of 2016, the NLRB’s General Counsel argued that McDonald’s use of business consultants who monitor staffing and business practices and conduct periodic reviews of the implementation of those practices to exert control over its franchises indicated, essentially, a joint employer status.  It pointed to McDonald’s operating manual and pointed to sale and scheduling systems concluding that the franchisees’ control over the terms and conditions of their workers’ employment was limited.

In opposition, McDonald’s argued that it was essentially doing its due diligence as a franchisor.  It further stated that it did not tell the company business owners whom to hire or when to schedule its employees. Rather, McDonald’s USA counsel maintained that McDonald’s USA exerts a level of control that any franchisor would expect to maintain a uniform customer experience across the franchisees adding that “all franchisors if they are successful, do precisely the same thing.” The parties proposed settlement was rebuffed by an ALJ and the McDonald’s respondents are now seeking to enforce the agreements stating that the ALJ engaged in an abuse of discretion. Whether the settlement comes to fruition or not, it is unlikely that the continued push to demonstrate franchisees and franchisors are joint employers will continue.

In sum, significant changes at the NLRB, in terms of its decisions and rulemaking, have been standard fare over the last twenty years. The pendulum has a tendency to swing wildly, which should not be surprising, considering the polarized positions of one Administration or the next.  However, this situation is not optimal for workers or employers as uncertainty abounds and planning each one’s next steps for the future becomes ever more unpredictable. Only time will tell if balance will be restored.

[i] 29 U.S.C. § 158.

[ii] 29 U.S.C. § 159.

[iii] Dish Network, LLC v. National Labor Relations Board, 725 Fed.Appx. 682 (10th Cir. 2018).

[iv] Plaza Auto Center, Inc., 360 NLRB 972 (2014).

[v] Preferred Building Services, Inc. and Rafael Ortiz d/b/a Ortiz Janitorial Services, Joint Employers, 20-CA-149353        (2018), 2018 WL 5734450.

[vi]  Auciello Ironworks Inc. v. NLRB, 517 U.S.781 (1996).

[vii] NLRB v. Weingarten, 420 U.S. 251 (1975).

[viii] See Representation — Case Procedures, 79 Fed. Reg. 74308-10 (Dec. 15, 2014).

[ix] Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018) was a consolidated proceeding including review of the Court’s decision in Lewis v. Epic Systems, 823 F.3d 1147 (7th Cir. 2016), Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), and the Murphy Oil U.S.A., Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).

[x] Purple Communications, Inc. 361 NLRB 1050 (2014).

[xi] Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel & Casino, Board Case No. 28-CA-060841.

[xii] Amicus Brief, Counsel for General Counsel/Region (9/06/18) (Here the NLRB reversed course and now opposes the position it had taken in support of Purple Communications).

[xiii] Browning-Ferris Industries of California, Inc. and FRRII, LLC d/b/a Leadpoint Business Services and Local 350, International Brotherhood of Teamsters, Case 32-RC-109684 overruled by Seven Seas Union Square LLC and Key Foods Cooperative, 2018 WL 818125 (2018).

[xiv] Laerco Transportation, 269 NLRB 324 (1984); TLI, Inc. 271 NLRB 798 (1984).

[xv] Browning Ferris, 2018 WL 818125.

[xvi] https://www.nlrb.gov/news-outreach/news-story/board-proposes-rule-change-its-joint-employer-standard.

 

Reprinted with permission by the Nassau County Bar Association

Client Alert: New York Minimum Wage Increases and Additional Reminders for Employers

As the end of the year approaches, it is important to remember that New York employers are subject to changes in wage and hour regulations that go into effect on  December 31, 2018. Failure to comply with the new requirements could subject a non-compliant employer to significant financial liability.

Minimum Wage Increases

The minimum wage and minimum salary levels in New York increase on December 31, 2018. These increases vary depending upon an employer’s size and location. On December 31, 2018, the regular minimum wage and fast food minimum wage in New York
increase as follows:

Location Regular Minimum Wage Fast Food Minimum Wage
NYC – Large Employer** $15.00 $15.00
NYC – Small Employer $13.50 $15.00
Long Island & Westchester $12.00 $12.75
Remainder of NY State $11.10 $12.75


** 
A New York City – Large Employer is one with 11 or more employees. A New York City – Small Employer is one with 10 employees or less.

A “fast food employee” is any individual working in a fast food establishment whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

A “fast food establishment” is any establishment in New York serving food or drink items:

  1. where patrons order or select items and pay before eating and such items may be consumed on the premises, taken out
    or delivered to the customer’s location;
  2. which offers limited service;
  3. which is part of a chain; and
  4. which is one of 30 or more establishments nationally, including:
    1. an integrated enterprise which owns or operates 30 or more such establishments in the aggregate nationally; or
    2. an establishment operated pursuant to a franchise where the franchisor and the franchisee(s) of such franchisor own or operate 30 or more such establishments in the aggregate nationally.

The rate for spread of hours pay, call-in pay, and similar non-working time payments that are based on the minimum wage will increase to match the minimum wages outlined above.

New York Minimum Salary Levels

On December 31, 2018, the minimum salary levels to qualify for overtime exemptions in New York also increase.  In addition  to meeting the duties requirements for the exemptions, an executive/managerial or administrative employee must be paid a minimum salary as follows:

Location Weekly Minimum Salary Level
NYC – Large Employer $1,125.00 ($58,500.00 annually)
NYC – Small Employer $1,012.50 ($52,650.00 annually)
Long Island & Westchester $900.00 ($46,800.00 annually)
Remainder of NY State $832.00 ($43,264.00 annually)

 

Tip Credits And Other Allowances

The tip credit, meal credit, and uniform maintenance allowances permitted by the Hospitality Industry and Miscellaneous Industries and Occupations Wage Orders will also change on December 31, 2018, with the amount varying depending upon the employer’s location, size, and, for the hospitality industry, the designation of whether the employee is a food service worker, service employee, or non-service employee.

Before a New York employer can take a tip credit, they must inform the employee in writing, in English and in the employee’s native language if not English, that the employer is taking a tip credit and the amount of the tip credit. The employer must also provide the employee with notice of their regular rate of pay, overtime rate of pay and their regular payday. In addition, the employer must advise the employee that if the cash wages they receive, plus the employee’s tips, do not equal the regular minimum wage for all hours worked, the employer will pay the employee the difference. Finally, in order to take the tip credit, the employer must notify the employee that the employer will not take any tips received by the employee except those that are contributed to a valid tip pooling or tip sharing arrangement. If an employer fails to provide this information, it cannot take the tip credit.

With these parameters in mind, effective December 31, 2018, the tip credit taken by the employer plus the cash wage that must be paid to such employees is as follows:

Miscellaneous Industries and Occupations

Location Reg. Min. Wage Low Tip Credit Low Tip Credit Cash Wage Low Tip Credit Cash OT Wage High Tip Credit High Tip Credit Cash Wage High Tip Credit Cash OT Wage

NYC –

Large Employer

$15.00 $2.25 $12.75 $20.25 $3.65 $11.35 $17.03

NYC –

Small Employer

$13.50 $2.05 $10.95 $18.20 $3.30 $10.20 $15.30
Long Island & Westchester $12.00 $1.80 $10.20 $16.20 $2.95 $9.05 $13.58
Remainder of NY State $11.10 $1.65 $9.45 $15.00 $2.70 $8.40 $12.60

 

Employers covered by the Miscellaneous Industries and Occupations Wage Order may take the Low Tip Credit for employees whose average weekly tips are between the low tip credit and the high tip credit.  Employers may take the High Tip Credit for those employees whose average weekly tips equal or exceed the high tip credit.

Hospitality Industry – Food Service Workers

Pursuant to the Hospitality Industry Wage Order, a “food service worker” is one who:

  • is primarily engaged in serving food and beverages to guests, patrons, and customers, other than delivery employee;
  • customarily and regularly receives tips from such guests, patrons, and customers; and
  • does not spend more than two (2) hours in any day or more than 20% of their time performing work where tips are not
    customarily received.
Location Cash Wage Tip Credit Reg. Min. Wage

Cash Tipped

OT Wage

NYC – Large Employer $10.00 $5.00 $15.00 $17.50
NYC – Small Employer $9.00 $4.50 $13.50 $15.75
Long Island & Westchester $8.00 $4.00 $12.00 $14.00
Remainder of NY State $7.50 $3.60 $11.10 $13.05

 

Hospitality Industry – Service Employees

A “service employee” in the hospitality industry is one who regularly and customarily receives tips for the work they perform and who is not a food service worker or a fast food employee.

Location Cash Wage Tip Credit Tip Threshold Tip Threshold for Resort Hotels Reg. Min. Wage

Cash Tipped

OT Wage

NYC –

Large Employer

$12.50 $2.50 $3.25 $8.40 $15.00 $20.00

NYC –

Small Employer

$11.25 $2.25 $2.95 $7.60 $13.50 $18.00
Long Island & Westchester $10.00 $2.00 $2.60 $6.75 $12.00 $16.00
Remainder of NY State $9.25 $1.85 $2.40 $6.25 $11.10 $14.80

 

In order to take the tip credit for service employees, the employee must meet the tip threshold.  This means that the employee’s average weekly tips must meet the minimum amount listed in the chart above per hour worked.

Uniforms

Where employers require employees to maintain their uniforms, unless they are “wash and wear” clothing that do not require any special treatment (i.e. dry cleaning, pressing, repairs), they must provide such employees with weekly uniform maintenance pay. The uniform maintenance pay will increase on December 31, 2018 to:

Location

Work Week

Over 30 Hours

Work Week More than 20 Hours but Less Than 30 Hours Work Week of 20 Hours or Less
NYC – Large Employer $18.65 $14.75 $8.90
NYC – Small Employer $16.80 $13.30 $8.05
Long Island & Westchester $14.95 $11.80 $7.15
Remainder of NY State $13.80 $10.90 $6.60

 

Meal Credit

Pursuant to New York’s Miscellaneous Industries and Occupations and Hospitality Industry Wage Orders, an employer who provides a qualifying meal to an employee may consider that meal to be part of the employee’s wages and take a credit against the employee’s wages for providing that meal.  In order to qualify as a “meal,” it must include each of the following: (1) fruits or vegetables; (2) grains or potatoes; (3) eggs, meat, fish, poultry, dairy or legumes; and (4) tea, coffee, milk or juice. The meal credits per meal provided shall change on December 31, 2018 to:

 

Miscellaneous Industries and Occupations

Location All Employees
NYC – Large Employer $5.15
NYC – Small Employer $4.65
Long Island & Westchester $4.15
Remainder of NY State $3.80

 

Hospitality Industry – Restaurants and All Year Hotels

 

Location Food Service Workers Service Employees All Other Employees
NYC – Large Employer $3.60 $4.15 $5.15
NYC – Small Employer $3.35 $3.75 $4.65
Long Island & Westchester $3.05 $3.35 $4.15
Remainder of NY State $2.90 $3.10 $3.80

 

Hospitality Industry – Resort Hotels 

 

Location Food Service Workers Service Employees All Other Employees
NYC – Large Employer $3.95 $5.40 $6.75
NYC – Small Employer $3.65 $4.90 $6.10
Long Island & Westchester $3.35 $4.35 $5.40
Remainder of NY State $3.20 $4.00 $5.00

 

Notice of Rate of Pay

New York’s Wage Theft Prevention Act (“WTPA”) requires that all New York employers provide a “Notice of Pay” form to all employees at the time of hire and upon a change in their rate of pay.  For employers outside of the hospitality industry, the New York State Department of Labor (“NYSDOL”) has stated that, as long as the new rate of pay is referenced in the employee’s next pay stub, employers do not need to provide a new Notice of Pay as a result of an increase in pay.  Hospitality employers must provide a new Notice of Pay upon an increase in pay because the Hospitality Industry Wage Order specifically requires that employers must provide a new Notice of Pay form to those employees who are affected by the increase to the minimum wage.

The required notices must contain the following information:

  • The employee’s normal rate(s) of pay and the basis thereof (e.g., hourly, shift, weekly, salary);
    • If an employer is taking a tip credit for an employee, the employer should note the full minimum wage as the employee’s hourly rate of pay, rather than the cash wage.
  • If applicable, the employee’s overtime rate of pay;
    • If an employer is taking a tip credit for an employee, the employer should note the full overtime wage, rather than the cash overtime wage.
  • The employee’s regular pay day;
  • Any allowances claimed against the minimum wage (e.g., tip credit, meal credit, lodging allowance, etc.);
  • The name of the employer (including any “doing business as” name);
  • The address of the employer’s main office and a mailing address (if different); and
  • The employer’s telephone number.

The written notice must be signed by both the employer and the employee and must be retained by the employer for at least six years.

The NYDOL has issued sample Notice of Pay forms that employers may use. Although employers are not required to use the NYDOL forms, it is recommended that they do so in order to ensure full compliance with New York law.   The Notice of Pay must be provided in both English and the employee’s native language (if not English), provided the NYDOL has created a Notice of Pay form in the employee’s native language.

Paystubs

In addition to providing employees with the Notice of Pay, New York employers must continue to provide their employees with detailed paystubs that contain the following information:

  • The dates of work covered by the paycheck;
  • The name of the employee;
  • The name, address and phone number of the employer;
  • The rates of pay (regular and overtime) and basis of pay i.e. whether the employee is paid by the hour, shift, day, week, salary, piece, commission, or other method;
  • Gross wages;
  • A detailed listing of deductions;
  • A listing of any allowances claims as part of the minimum wage; and
  • Net wages.

Employers in New York City who are subject to the New York City Earned Safe and Sick Time Act as well as any employer providing employees with vacation, paid time off, sick time or a similar benefit should also provide detailed information regarding these
benefits on employee paystubs.  This will avoid any potential discrepancies and confusion as employees will see on each paycheck the amount of time accrued during that pay period, the total amount of time accrued that year, the amount of time used during that pay period, the amount of time used during that year to date and the amount of time available to the employee.

As a reminder, it is the employer’s responsibility to ensure that paystubs are accurate.  Employers cannot trust their payroll

services to ensure that paystubs are compliant.  We recommend consulting with counsel to review their paystubs to ensure that they meet the legal requirements.

New York Paid Family Leave

In addition to the previously discussed wage and hour obligations, there are significant changes to New York Paid Family Leave that employers must be aware of.  The amount of paid leave that an employee can take increases from 8 weeks to 10 weeks in 2019.  Moreover, the payout increases from 50% of an employee’s average weekly pay to 55% of an employee’s average weekly pay,

subject to a cap of $746.41.  Further, the maximum annual employee contribution increases to $107.64.

Sexual Harassment Statute Compliance

Finally, all employers must ensure that they are in compliance with the sexual harassment laws enacted by New York State and New York City.  All employers should have a compliant sexual harassment policy in place and New York City employers must have posted the required workplace poster and distributed the required factsheet to all newly hired employees.  Employers must also begin planning sexual harassment training for all employees in order to meet the applicable deadlines.

****

In anticipation of these changes, New York employers should review their current payroll practices to ensure that they are prepared to meet the increased minimum wages and salary levels on December 31, 2018.  Employers should also ensure that they are prepared to enact the increased maximum deduction permitted by the New York Paid Family Leave law and update their policies to reflect the increased amount of paid leave an eligible employee is permitted.

 

For more information on Meyer Suozzi’s Employment Law practice, click here.

Paul Millus Authors, “The Dissatisfied Minority Shareholder or LLC Member: What Can She Do After the Bloom Is Off the Rose”

Maybe you have had the same experience. A new client comes to you with a story. She had significant disposable funds, so she did what everyone does—she invested in the “next big thing.” She was so excited that she did not even consult with a lawyer because she was afraid to lose this “once in a lifetime opportunity.” The client invested $500,000 for what she was told was initially a 20 percent interest in the venture, which would increase to 50 percent after two years pursuant to an oral agreement. She was also told she would begin making money immediately. Not surprisingly, two years come and go and she has not received a single distribution, and all of her requests for relevant information regarding the company’s finances have been ignored. When the venture began, optimism was through the roof and dreams of a pain-free retirement danced in her head. But, alas, things did not turn out to be what the client had hoped. So, you first determine what form the business was in, i.e., whether she invested in a business corporation or a Limited Liability Company. Then you look for the underlying agreements and you are told “I don’t have any” and off you go.

The fact is, minority shareholders/owners have very little (or potentially no) control over when and how much money they will receive in distributions based on their investment (if any). So, after gently admonishing your client that she should have come to you or your corporate group before she made such an investment, you ascertain what legally supportable angle may be available to get your client out.

Rights Under the BCL

You learn your client invested in a business corporation. Under the BCL, a minority shareholder’s rights are limited. You may start by demanding to inspect the books and records under BCL §624(a). Under that section, any person who is a shareholder of record of a corporation is entitled to examine the minutes of the proceedings. There probably are no minutes. Under BCL §624(e), you can request an annual balance sheet and profit and loss statement for the preceding fiscal year. You may also request an interim balance sheet or profit and loss statement that has been distributed to its shareholders or otherwise made available to the public. If any of this is available and, indeed, is given to you, it will not tell you much.

Dissolution is then discussed; however, initially, your client states she does not want to see the business liquidated as she still has great hopes for its future. As such, you inquire as to what she knows about how the business is being managed. Maybe she has information pertaining to her fellow shareholder’s misuse of corporate funds, potentially supporting a suit based on breach of fiduciary duty. But first, under BCL §626(c), your client must explain what efforts she made to inform the company’s board of what she knew and that she sought board action, which must be pled in the complaint “with particularity.” Her failure to do so is not per se fatal, as she can commence a suit and plead the reasons why such a request would be futile. Cement Masons Local 780 Pension Fund v. Schleifer, 56 Misc.3d 1204(A) (Sup. Ct., N.Y. Cty., 2017). To withstand a motion to dismiss based on failure to adequately plead futility, a complaint needs to allege “with particularity that (1) a majority of directors are interested in the transaction; or (2) the directors failed to inform themselves to a degree reasonably necessary about the transaction; or (3) the directors failed to exercise their business judgment in approving the transaction.” Id. at 4 quoting Marx v. Akers, 88 N.Y.2d 189, 198 (1996).

This will not be an easy road. First, your client must understand this will be a derivative suit, not on her own behalf but on behalf of the corporation. It is unlikely money will come to her directly. However, your client’s attorney fees may be recoverable. See McKinney’s BCL §626(e). Also, keep in mind that the allegations of breach of fiduciary duty must be pled with particularity as required by CPLR 3016(b). Next, there are numerous defenses to certain corporate actions. If she is claiming that her fellow shareholder took excessive compensation, there is a potential defense under BCL §713(e), which states that “[u]nless otherwise provided in the certificate of incorporation or the by-laws, the board shall have authority to fix the compensation of directors for services in any capacity.” Then you must contend with the business judgment rule which “bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.” Auerbach v. Bennett, 47 N.Y.2d 619, 629, 631 (1979) (“[B]y definition the responsibility for business judgments must rest with the corporate directors … [and] absent evidence of bad faith or fraud … the courts must and properly should respect their determinations.”) It may be that you simply do not have the facts to pursue this relief. So what’s next?

Dissolution may be the only option. It should be noted that together with a dissolution action, you may commence a hybrid action seeking dissolution as well as damages due to the failure of the other shareholder to distribute funds in the event you have evidence other distributions were made to that shareholder and not to your client. Under BCL §1104, a 50 percent shareholder may present a petition for dissolution on one or more of the following grounds: (1) that the directors are so divided respecting the management of the corporation’s affairs that the votes required for action by the board cannot be obtained; (2) that the shareholders are so divided that the votes required for the election of directors cannot be obtained; (3) that there is internal dissension and two or more factions of shareholders are so divided that dissolution would be beneficial to the shareholders. Your first hurdle would be to establish that the oral agreement your client mentioned, which would make her a 50 percent shareholder, is valid. UCC §8-113 replaced UCC §8-319 (repealed eff. 1997), providing that the “Statute of Frauds [is Generally] Inapplicable” to securities. The new statute provides that “[a] contract or modification of a contract for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought, even if the contract or modification is not capable of performance within one year of its making.”

You may simultaneously seek relief under BCL §1104-a, which provides that a shareholder, like your client, who owns at least 20 percent of the outstanding shares, may seek dissolution if: (1) The directors or those in control of the corporation have been guilty of illegal, fraudulent or oppressive actions toward the complaining shareholders; (2) The property or assets of the corporation are being looted, wasted, or diverted for non-corporate purposes by its directors, officers or those in control of the corporation. You probably will start with asserting that your client has been subjected to oppressive actions and hopefully have some evidence that assets are being wasted. Oppression occurs “when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the [minority shareholder’s] decision to join the venture.” Matter of Kemp & Beatley (Gadstein), 64 N.Y.2d 63, 73 (1984); see also Matter of Charleston Square, 295 A.D.2d 425, 426 (2d Dep’t 2002). A bonus under this section is that, in addition to all other disclosure requirements set by the court, the company must make available for inspection and copying the corporate financial books and records for the three preceding years no later than 30 days after the filing of a petition. McKinney’s BCL §1104-a(c).

However, if you bring a BCL §1104-a proceeding, the other shareholder may elect to buy out your client under BCL §1118 and the valuation date, in that event, will be one day before the petition was filed. Any increase in value after that date will be simply out of reach for your client. A §1118 election is not available in a §1104 dissolution. Finally, you have additional arrows in your quiver if you seek dissolution under either §§1104 or 1104-a, such as seeking the appointment of a receiver, McKinney’s BCL §1113, the potential imposition of a constructive trust, see Cortes v. 3A North Park Ave Rest, 46 Misc.3d 670, 703-04 (Sup. Ct., Kings Cty., 2014), an injunction limiting the actions of the present board and officers of the company (McKinney’s BCL §1115) and requesting that the opposing party post a bond in the amount of the value of your client’s shareholder’s interest in a §1118 election (McKinney’s BCL §1118(c)(2)). However, the process will be long, no matter how you slice it.

Your Client and Her LLC Interest

Let’s say your client told you instead that she is a member of an LLC. What are her rights then? Without an operating agreement, your client’s claim will be governed by New York’s Limited Liability Company Law. Interestingly, the Court of Appeals held in 2008 that LLC members may bring derivative suits on the LLC’s behalf even though the State Legislature considered and rejected including such a right in the law. Tzolis v. Wolf, 10 N.Y.3d 100 (2008). However, the same rules apply to such an action here, to wit, that the allegations must be specific and the business judgment rule is always in play.

Next, can your client seek dissolution? A court may order the dissolution of a limited liability company “whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.” N.Y. Limit. Liab. Co. Law §702. The statute does not define the term “reasonably practicable.” In determining whether a limited liability company should be dissolved, the court is determining whether it is or is not “reasonably practicable for the company to continue to carry on its business” and not whether it is impossible. Matter of 1545 Ocean Ave., LLC, 72 A.D.3d 121 (2d Dep’t 2010); see also Matter of Kassab v. Kasab, 137 A.D.3d 1135 (2d Dep’t 2016). While the court will look to the operating agreement initially to determine what the purpose of the LLC is, here, the court will have to examine extrinsic evidence to determine that purpose. “[T]he dissolution of a limited liability company under [LLC] §702 is initially a contract-based analysis.” 1545 Ocean, 72 A.D.3d at 128; Matter of Eight of Swords, LLC, 96 A.D.3d 839 (2d Dep’t 2012) (the court used extrinsic evidence to determine the LLC’s primary purpose).

The petitioner in an LLC dissolution proceeding must either show that “the management of the entity is unable or unwilling to reasonably permit or promote the stated purpose of the entity to be realized or achieved or [that] continuing the entity is financially unfeasible” 1545 Ocean, 72 A.D.3d at 131. This is a very high burden. If the company is performing fine financially and doing what it set out to do, the fact your client has not received a distribution probably will not be enough to carry the day in a dissolution proceeding. Your client’s allegations of oppressive conduct or that she is being frozen out by her other member will not state cognizable grounds for dissolution. Belardi-Ostroy, Ltd. v. American List Counsel, Inc., 2016 WL 1558850 (Sup. Ct., N.Y. Cty, 2016).

Conclusion

Based on the law, your client is in for a fight if the other side has no interest in relenting. She also has one hand tied behind her back as a result of failing to insist on written agreements that clearly set forth her rights and her fellow shareholder’s obligations. You would be surprised how many people think, including those who you would consider to be “sophisticated,” that buying into a closely-held corporation is like buying shares in IBM. Therein lies the lesson—if your client thought she was saving money upfront by going ahead without legal advice, she will pay far more on the back end trying to salvage the investment of her hard-earned money.

Paul F. Millus is a shareholder of Meyer, Suozzi, English & Klein, P.C., and practices in the firm’s litigation and employment law departments.

Client Alert: New York City Council Votes to Impose New Obligations Upon Employers

In the midst of reports of widespread discrimination faced by pregnant workers and those returning to work following giving birth, the New York City Council passed a legislative package imposing new burdens on employers with respect to nursing employees.  The newly passed legislation, which is awaiting Mayor DiBlasio’s signature, will require employers to provide lactation rooms and adopt lactation accommodation policies.

Currently, all employers in New York are required to provide employees with unpaid break time to express breast milk for up to three years after the birth of a child and a private location, other than a restroom, where they can express breast milk, unless it would be extremely difficult to do so.  The room must contain a chair and a small table, or other flat surface.  Under the new laws, employers in New York City will need to provide breastfeeding employees with an increased level of accommodation.

New York City Employers Face Increased Requirements for Lactation Rooms

Under the new legislation, companies in New York City with more than 15 employees will be required to provide breastfeeding employees with a lactation room in reasonable proximity to the employee’s work area that, at a minimum, includes an electrical outlet, a chair, a surface to place a breast pump and other personal items upon, and nearby access to running water.  The employer must also provide employees with a refrigerator in reasonable proximity to the employee’s work area for the purpose of storing breast milk.  Moreover, if the designated lactation room is also used for another purpose, the primary purpose of the room must be for lactation and the employer must provide notice to all its employees that use of the space for lactation purposes takes precedence over all other purposes.

If providing such a space to an employee would impose an undue hardship on the employer due to the significant expense or operational difficulty, after an analysis of the employer’s circumstances, an employer may be exempt from the requirements imposed by the City law.  However, the employer must engage in a cooperative dialogue with the employee to determine whether any other options are available to meet the employee’s needs.

New York City Employers Must Issue a Formal Policy on Lactation

In addition to providing an appropriate space for expressing breast milk, New York City employers must adopt and implement a policy regarding the lactation room.  The policy must be distributed to all employees and contain the following information:

  1. A statement that employees have the right to request a space to express breast milk;
  2. The process for an employee to request a space to express breast milk. The policy must state:

a. how an employee can submit such a request;

b. that the employer is required to respond to the request within five (5) days;

c. that if the employer does not provide a lactation room, the employer will provide a written response detailing why the request was denied; and

d. that the employer will provide reasonable unpaid break time to express breast milk in compliance with New York Labor Law 206-c.

The policy should also include a procedure to follow when two or more individuals need to use the lactation room at the same time.  The City will be issuing a model policy that employers can review and adapt to their needs.

Employers must retain copies of all written requests for a lactation space and records establishing how the employer resolved the request.  Such records must be maintained for three years.

Employers Should begin to Plan for Implementation of the Laws

Although the Mayor has not signed the lactation legislation into law yet, he is expected to do so shortly.  The laws will go into effect 120 days after the Mayor signs them into law.  In anticipation of these new laws going into effect, New York City employers should survey their premises and determine where they can establish a compliant lactation room and begin preparing a compliant lactation policy.

 

For more information on Meyer Suozzi’s Employment Law practice, click here.

Lynn Brown Authors, “More Than a Year After the U.S. Supreme Court’s Decision in Endrew F., Little Has Changed for Parents of Children in Special Education in New York”

When the U.S. Supreme Court issued its 2017 decision in Endrew F. ex rel. Joseph F. v. Douglas County School Dist., __ U.S.__, 137 S. Ct. 988 (2017), it was hailed as an important step forward for students receiving special education.   In fact, however, at least in New York, Endrew F. appears to have had little effect on the courts’ analysis as to whether a school district has provided a special education student with a free, appropriate public education (known as “FAPE”), as required by the applicable federal statute, the Individuals with Disabilities Education Act (“IDEA”).

Before Endrew F., it was well established that a school district had to provide a special education student with an individualized educational program (“IEP”) that was “appropriate,” meaning that it was “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034 (1982).    In Endrew F., the U.S. Supreme Court purported to give some guidance on what that meant, holding that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”  137 S. Ct. at 1001.   Rejecting the contention that an IEP was sufficient where the student had received an educational benefit that is “merely more than de minimis” (id. at 1001), the Court found that “it cannot be the case that the [IDEA] typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.”  Id. at 1000-1001.  Rather, the Court held, “the IDEA demands more.  It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”  Id. at  1001.  Still, however, the IEP must only be “reasonable,” not “ideal.”  Id. at 999.  Further, an educational program need not include “grade level advancement” if such progress is not “a reasonable prospect” for the particular child.  Id. at 1000. Moreover, in making the assessment as to whether an IEP passes muster, the U.S. Supreme Court reminded the lower courts that they are not permitted “to substitute their own notions of sound educational policy for those of the school authorities which they review.”   Id. at 1001(citation omitted).

While the decision in Endrew F. was lauded as a watershed moment for special education students, in fact, that has not been the case in New York.  To the contrary,  the Second Circuit and the federal courts within this Circuit have repeatedly held, “[p]rior decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.”  See, e.g., F.L., individually and on behalf of R.C.L., 735 Fed. Appx. 38, 41, n.3 (Mem) (2d Cir. Aug. 24, 2018); Mr. P. v. West Hartford Bd. of Educ., 885 F.3d 735, 757 (2d Cir. 2018);  E.E., individually and on behalf of G.E. v. New York City Dep’t of Educ., 2018 WL 4636984, at *7 (S.D.N.Y. Sept. 26, 2018).  Thus, the courts have determined that Endrew F. imposed no higher standard than the federal courts in New York were already imposing upon school districts when crafting an IEP, and, therefore, did nothing to change the rules applicable to school districts.

As a practical matter, this means that the courts remain deferential to school districts’ Committee on Special Education (“CSE”), independent hearing officers (“IHOs”) and the New York State Commissioner of Education (sometimes referred to as the “State Review Officer” or “SRO”) despite the U.S. Supreme Court’s decision in Endrew F.   Although parents have relied on Endrew F. to claim that IEPs designed for their special education children are not “appropriate” as their children have not made the necessary advancement, since Endrew F, the courts in the Second Circuit still remain reluctant to find IEPs deficient on that basis. See, e.g., J.R. v. New York City Dep’t of Educ., 2018 WL 4664086 (2d Cir. Sep’t 27, 2018) (summary order) (although parents claimed that IEP was not reasonably calculated to confer educational benefits, the Second Circuit rejected that contention, finding it owed the state deference in that regard and found student with speech and language impairments received FAPE); G.E., 2018 WL 4636983, at *4 (rejecting parent’s claims that school district denied student with autism FAPE by failing to conduct a functional behavioral analysis, implement a behavioral intervention plan, or identify temporary transitional support services to new classroom teacher, and allegedly predetermined what was in the IEP, developed an IEP that recommended an inappropriate program and goals, failed to provide a 1:1 aide, prescribe the appropriate teaching methodology, or adequately address the student’s sensory and management needs; impartial hearing officer and SRO applied the proper legal standard).

These and other cases decided after Endrew F. demonstrate that it remains an uphill battle for parents to demonstrate that a school district has denied a child FAPE.  An IEP is likely to be deemed to provide FAPE as long as the school district can show that it was created after due consideration of all relevant evidence concerning the student’s functioning and needs. Furthermore, because IEPs continue to be judged prospectively, i.e., on the basis of what is known about the student at the time it is crafted, a parent may not challenge an IEP based upon speculation that, once implemented, an IEP may not, in fact, meet a student’s needs.  Rather, it remains the case that an IEP may have to be implemented, and actually shown to be inappropriate (meaning that a child fails to progress, or even keep up with the curriculum), before a court is willing to find that an IEP deprived a student of FAPE.  See, e.g., M.E. and T.E., individually and on behalf of K.E. v. New York City Dep’t of Educ., 2018 WL 582601 (S.D.N.Y. Jan. 26, 2018) (parents failed to demonstrate that the IEP developed by the CSE was inadequate and the district’s proposed placement was insufficient to meet their child’s sensory needs; SRO’s decision was thorough and well-reasoned); J.P., on behalf of their Son, J.P. v. City of New York Dep’t of Educ., 717 Fed. Appx. 30, 32 (2d Cir. 2017) (parents did not establish that IEP was procedurally or substantively inadequate; as the “SRO  considered the record as a whole and explicitly referred to materials that J.P.’s parents now suggest were ignored,” and “the CSE heard [the parents’] objections, considered materials they submitted, and convened a second meeting to address their objections and explain its reasoning”).

Thus, while under Endrew F. more than de minimus progress must be the goal of an IEP, that case seems to have had no practical effect in New York.  Accordingly, a parent who has concerns that the IEP developed for his child at the CSE meeting will not provide FAPE should ensure that a record is made at the CSE meeting regarding (a) what evaluations were performed, (b) whether the CSE has considered a student’s current level of functioning and needs, and (c) what evidence the CSE considered (or failed to consider) when developing the IEP.   Only if the parent can demonstrate that the CSE, IHO and/or SRO was less than thorough in determining what is “appropriate” for the student is that parent likely to be successful in any court challenge to an IEP. See S.B. and S.B., Individually and on Behalf of C.B. v. New York City Dep’t of Educ., 2017 WL 4326502, at *15 (E.D.N.Y. Sept. 28, 2017) (parents demonstrated that school district failed to timely reevaluate student in her areas of need and failed to review her most recent evaluations during the IEP meeting; decisions of the CSE and SRO were belied by a preponderance of the objective evidence and neither reconciled inconsistencies nor acknowledged their existence, and, thus, “[t]he IEP was not designed to enable C.B. to make progress in light of her educational needs”).

Judge Randall Eng Authors, “Appellate Division Adopts Statewide Practice Rules”

Judge Randall Eng, Presiding Justice, Appellate Division, Second Department, Brooklyn, NY
Photo by David Handschuh/NYLJ

The Appellate Division of the Supreme Court of the State of New York came into being in 1894 during the presidency of Grover Cleveland and preceded by four years, the consolidation of the City of New York into its present five borough/county configuration.

From that time to the present day, each of the four departments of the Appellate Division has maintained its own practice rules that govern the administration of those intermediate appellate courts which cover the 62 counties that comprise New York State.

All of that is soon to change, for effective Sept. 17, 2018, the Appellate Division will have Statewide Practice Rules that will have applicability throughout the four judicial Departments.

Those practitioners familiar with the current rules of the Second Department will find many similarities and will find as well, codification of certain practices in that court that were observed, but not formally enacted in its rules.

On Sept. 17, the Statewide Rules of Practice will be applicable to all matters commenced in the Appellate Division throughout the state, including those in which a notice of appeal has been filed. The rules will be applicable to all matters pending in the court unless a showing can be made to the court that a party would be substantially prejudiced or that it would be manifestly unjust or impracticable to apply the new rules.

The new Statewide Rules offer clarity in several practice areas and some of the highlights are as follows:

Rule 1250.1(e) Identifies materials which are deemed confidential by law and not available for viewing by the public and requires that applications for sealing and unsealing be made by motion upon good cause shown.
Rule 1250.4 Outlines in detail what is required to obtain (d) poor person relief, (e) pro hoc vice admission, and (f) leave to file an amicus brief.
Rule 1250.10(c) Addresses the process by which a matter is dismissed, and the procedure for vacating the dismissal of an appeal or proceeding on motion.
Rule 1250.15(b) and 1250.16 (a) Requires the publication of the court’s calendars and decisions on its website.
Rule 1250.1(c)(4) Permits service by electronic mail upon consent of the parties.
Rule 1250.7(e) Permits Minuscript in a record or appendix if it was submitted to the court from which the appeal is being taken in that manner.
Rule 1250.7(c) Allows greater flexibility to the parties regarding the reproduction of exhibits in the full reproduced record.
Rule 1250.8 Prescribes the form and content of briefs and contains specific requirements which have been commonly followed in practice but are now required. The email address of the attorney filing a brief must now be included and computer-generated briefs are subject to certain requirements.
Rule 1250.9(a) This rule has relaxed the filing requirement of records, briefs and appendices from an original plus eight to an original plus five. Only one copy of a brief need be served, rather than two. In addition, one digital must now be filed.
Rule 1250.9 Although some appeals may be actively managed through the issuance of a scheduling order pursuant to Rule 1250.3(b), extensions of time in which to perfect an appeal or to serve and file a brief may be accomplished by stipulation, application or motion depending upon the number of requests.

 

The new statewide rules provide definitions that have applicability throughout New York State that include “electronic,” “electronic mean,” and makes reference to “NYSCEF,” which is the New York State Courts Electronic Filing System. These terms are integrated into those parts of the rules that deal with filing and service, and are intended to expedite the flow of business through the court.

Practitioners are advised that searching for what has changed in the adoption of the statewide rules requires knowledge of the former written rules of the individual departments as well as possible unwritten rules that have been observed.

An illustration of the above may be found in the new Rule 1250.15(c)(5) which concerns requests for rebuttal in oral argument:

Prior to beginning argument, the appellant may orally request permission to reserve a specific number of minutes for rebuttal in the First and Third Judicial departments. The time reserved shall be subtracted from the total time assigned to the appellant . . . .

The current local rules of the four departments provide as follows:

First Department Rule 600.11(f)  Time Permitted for ArgumentSilent as to rebuttal but permitted in practice.
Second Department Rule 670.20  Oral ArgumentSilent as to rebuttal but NOT permitted in practice.
Third Department Rule 800.10  Oral ArgumentSilent as to rebuttal but permitted in practice.
Fourth Department Rule 1000.11(f)  Oral ArgumentNo rebuttal argument is permitted.

As can be seen, by the above, discovering what has changed as to the rules governing any area of appellate practice requires comparison of the old written rules, the old unwritten practices of the individual departments and the new statewide rules.

The statewide rules will also be supplemented by local rules of practice that will be implemented by each of the judicial departments. Practitioners should become familiar with the local rules, and may be alerted to their applicability in a matter by language in the statewide rules such as “…unless the court shall direct otherwise…” or “…the court may require …”

Illustrations of the application of local rules may be seen in Part 670 of the rules of the courts, which pertain to the Second Department. The latest version of those rules are now organized in the same manner as the statewide rules for ease in cross-referencing. The intake form (formerly the Request for Appellate Division Intervention or “RADI”) form has been replaced by initial information statements under local rule 670.3(a).  Some further notable changes to the local rules are as follows:

Rule 670.2(a) Describes the procedure by which an appeal that is pending on the court’s calendar may be withdrawn.
Rule 670.4 Covers motion practice including orders to show cause, leave to file an amicus brief, and leave to appeal to the Appellate Division.
Rule 670.11 Refers to criminal appeals and, among other things, provides that in an appeal in which only the legality, excessiveness or propriety of a sentence is raised, may be brought on by motion, denominated as an excessive sentence motion.
Rule 670.15 Pertains to the conduct of oral argument in the Second Department and provides for, among other things, a maximum of 15 minutes for each side, the procedure for requesting an adjournment of oral argument, and the matters in which oral argument is not permitted.

Randall Eng is of counsel to Meyer, Suozzi, English & Klein. He is the former presiding justice of the Second Department.

Click here to read the article in the New York Law Journal