Author Archives: Chris D'Angelo

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About Chris D'Angelo

Chris D'Angelo is an employment attorney at Vandenberg & Feliu, LLP in New York, New York.
EMAIL: cdangelo@vanfeliu.com
BIO: About Chris
PHONE: 212-763-6822

Parting is Such Sweet Sorrow – Especially With a Severance Package (Part 1 of 2)
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Parting is Such Sweet Sorrow - Especially With a Severance Package (Part 1 of 2) | Chris D'Angelo

Whether severance packages are right for your firm always, sometimes or never, can only be answered by management. {4:42 minutes to read} This month’s post is the first in a 2-part series addressing the issue of severance packages, first from the employer’s perspective and then from the employee’s perspective. In its most basic form, a severance package offers additional compensation to a terminated employee. Many, many years ago, it was common for employers to offer small severance packages without any strings attached. Today, however, the situation is much different, and very few severance packages are offered on an unconditional basis.

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2015 Q1 Results
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2015 Q1 Results | Chris D'Angelo

{3:42 minutes to read} As 2015 cruises into the 2nd quarter we wanted to bring you up to date on some of our recent accomplishments here at Vandenberg & Feliu, LLP. 1. Summary judgment and sexual harassment: In March 2014, the firm was successful in having a sexual harassment claim against one of its clients dismissed on a motion for summary judgment. About one month ago, the Second Circuit Court of Appeals affirmed the granting of summary judgment in favor of the client, dismissing the claim in its entirety.

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Tweet Tweet: Employment Law & Social Media
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Tweet Tweet:  Employment Law & Social Media | Chris D'Angelo

{4:12 minutes to read} Curt Schilling made headlines recently when he lambasted Twitter users who directed unprovoked vulgarity towards his daughter. One of the users, an employee of the New York Yankees, was promptly fired for his “cyber-lewdness” even though there is no evidence the “tweet” was accomplished at work or using employer equipment. This individual had very little legal protection. However the last several years the National Labor Relations Act (“NLRA”) has provided an unlikely ally to employees, both union and nonunion, who contest company policies or discipline covering social media.

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Do Your Supervisors Know the Rules?
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Do Your Supervisors Know the Rules? | Chris D'Angelo

Have you tested your supervisors lately? How well do they know the rules of your business? {4:15 minutes to read} Late last year, there was a case pending in Oklahoma state court involving a high school football game. The state playoffs were being delayed due to an erroneous call made by an official, who called a penalty on an assistant coach. The assistant coach inadvertently obstructed the official’s path on the field during a 58-yard touchdown pass in the final minutes of the game.

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NFL Fumbled Ray Rice Investigation-Second Half
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NFL Fumbled Ray Rice Investigation-Second Half | Chris D'Angelo

[Time to Read: 4.4 mins] There are several important lessons employers can learn about investigatory technique and the imposition of discipline from a review of the decision written by Judge Jones.

  • Gather the evidence … all of it:
While the second video showing the assault was known to exist, the NFL seems to have made haphazard or half-hearted attempts to obtain it. Indeed, according to Judge Jones, “Rice had received this video in discovery during his criminal case, but the NFL never asked Rice” for a copy.

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Rejoice and be Glad, New York State Employers!
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Rejoice and be Glad, New York State Employers! | Chris D'Angelo

[Time to Read: 3.0 mins] On December 29, 2014, Governor Andrew Cuomo signed a bill which repealed the Annual Notice Provisions of the Wage Theft Prevention Act (WTPA). Enacted in 2010 and effective in 2011, the WTPA required employers to give all employees written notice of the employee’s wage rate (hourly and overtime), exempt or non-exempt status, and other information relating to their pay and the business they work for, by February 1 of each year.  The Notice had to be signed by the employer and the employee, and maintained by the employer.

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NFL Fumbled the Ray Rice Investigation – Kickoff
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NFL Fumbled the Ray Rice Investigation - Kickoff | Chris D'Angelo

[Time to Read: 3.9 mins] By now, you have no doubt heard of Ray Rice, the former star running back of the Baltimore Ravens who, to put it mildly, encountered legal and employment trouble, after hitting his then fiancé, Janay Palmer, in an elevator in Atlantic City, knocking her unconscious. Initially, after being charged and indicted for felony assault, Rice’s criminal troubles ended with his entrance into a court-ordered pretrial intervention program, where his case would be dismissed in 1 year if he satisfactorily completed an anger management course, attended counselling, and committed no additional crimes.

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NYC Living Wage Law Adds Life To Minimum Wage Debate
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NYC Living Wage Law Adds Life To Minimum Wage Debate | Chris D'Angelo

If you are a business operating in New York City, you should be aware of a recent change, via Executive Order, to NYC’s “Living Wage” Law. The NYC Living Wage Law establishes a “minimum wage” based not on a standardized minimum, but upon the cost of living in a certain area. Up until recently, it applied exclusively to companies directly receiving City subsidies, but Mayor de Blasio’s recent Executive Order now changes that. Who is Covered?

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What Does 2015 Have in Store for You?
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What Does 2015 Have in Store for You? | Chris D'Angelo

As 2014 nears its conclusion, we thought it would be prudent to take out our trusty “crystal ball” to see what’s in store for employers in 2015. Background Checks For many years the legal issues involved in conducting background checks were a minor nuisance for employers. Sure, there were federal, state and local laws that governed:

  • What an employer could and could not do
  • The process an employer needed to follow to conduct a valid background check.

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Idioms and Employment Law
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No doubt we've all been admonished at some point in our lives to “never judge a book by its cover.” This idiom provides good counsel in the employment arena.

Exhibit A, if you will, is the recent case of Ellis v Century 21 Dept. Stores, 975 F Supp 2d 244, 273 [EDNY 2013], where Plaintiff claimed she was discriminated against on the basis of her sex when she was passed over for a promotion. The Court refused to dismiss the case and instead ordered a jury trial, based in part on the following statement made to the plaintiff by a superior at the time the decision was being made: “[Y]ou are young, you have young children. It’s a lot of hours. You don’t want the position. You are the mom.” According to the Court, this statement was evidence of an impermissible, sex-based motive for passing over Ellis.

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And the Oscar Goes to … Prison
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by Jonathan E. Goldberg

When last we discussed the trial of Oscar Pistorius, we concluded that many of the prosecution’s argumentative and “pit-bull-like” tactics would be prohibited in the United States for the prejudicial effect they might have on a jury. We further took note of the South African legislature’s unbridled trust in their judges to render verdicts, and patiently awaited the outcome of what has become a highly publicized case.

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To Mediate or Not…That Is The Question
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It is more and more common today for management employment lawyers to address the pros and cons of mediation at the commencement of a dispute. In most instances, mediation is voluntary, but it may also be mandatory, either due to a company policy, or the rules of a particular court or agency. (For the uninitiated, mediation is a process where the parties utilize a neutral third party to facilitate a resolution of the dispute.) Multiple factors should be considered in determining whether to mediate a case, or how to approach the mediation if it is mandatory.

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How do I discipline thee? Let me count the ways … The Pros and Cons of Progressive Discipline Policies
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Employee discipline is a nettlesome issue. Employers should strive to be fair and consistent in all disciplinary matters, but as they say, the devil is in the details. Circumstances, the people involved, the environment, and how certain conduct impacts a company will always vary from one situation to the next, making it a tall order to mete out “punishment” in a fair and consistent manner without fail, each and every time.

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Oh, and did I mention joke emails? Email Guidelines for the Workplace
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In the first part of this article, we considered the perils and pitfalls inherent in email and other forms of electronic communication, citing the criminal indictment of several former leaders of Dewey & LeBoeuf (based in part on their email communications) as highlighting the need for care and caution about what one puts in one’s email correspondence.

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Stupid Human Tricks 101: Incriminating and Ill-Advised Email Communications
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The recent indictment of several former leaders of now-defunct Dewey & LeBoeuf, including the firm’s chairman, has dramatically and publicly brought to the fore the dangers inherent in email and other forms of electronic communication. According to news reports, the evidence that formed the basis of the 106-count Dewey indictment included email communications in which the accused used such terms as “fake income” and “accounting tricks,” and referred to their skill in fooling a “clueless auditor.” Allegedly, one of the former Dewey leaders even used the term “cooking the books” in an email circulated among the group.

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Taking the Unpaid Intern Test
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Does your company bring in students as “unpaid interns?” According to the U.S. Department of Labor (“DOL”), interns in most “for profit” companies should be compensated with at least minimum wage. When the intern’s work serves only the interests of the intern and not the company, however, compensation is not required.

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No Oscar for These Prosecutorial Tactics: Pistorius Cross Impermissible in U.S.
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by Jonathan Evan Goldberg

The South African trial of famed Olympic hero Oscar Pistorius for the alleged murder of his long-time girlfriend, Reeva Steenkamp, has riveted the world’s attention. At times, more attention has been paid to the way evidence has been presented than to the merits of the prosecution’s case. The prosecutor, Gerrie Nel, has been dubbed a “pit bull” by the media for his aggressive and unrelenting cross-examination techniques. Nel’s renowned style raises questions about whether it would be permitted in a U.S. court. The unanimous view of our litigators is a resounding “no.”

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Paying Proper Wages to Restaurant Employees
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V&F represents numerous restaurant employers in the defense of wage and hour claims. These claims are typically brought by employees who allege they have been paid less than minimum wage, have not been paid proper overtime and/or spread of hours.

New York Minimum Wage is currently $8.00 per hour. On 12/31/2014, it will increase to $8.75 per hour and $9.00 on 12/31/2015. That means all employers of workers who are to be paid minimum wage, should be paying that amount.

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How To Protect Your Business: The Fundamentals of Trademark and Copyright Issues Part 3
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by Monica McCabe, reprinted with Permission of Modern Miracles Magazine

Common Misconceptions About Copyrights.

One common misconception is that a creator must register a work with the U.S. Copyright Office in order to receive copyright protection. Copyright protection is afforded as soon as the work is embodied in physical form. Creators should indicate that they have ownership by placing a © date of creation, name of owner on the work. So, for example, at the bottom of the text, the creator should use the copyright symbol with the name of the owner and the date of creation. In any event, it is a good idea to copyright a work. It can be done online or you could consult a copyright attorney to complete the form and deposit a copy of the work with the U.S. Copyright Office.

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How To Protect Your Business: The Fundamentals of Trademark and Copyright Issues Part 2
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by Monica McCabe, reprinted with Permission of Modern Miracles Magazine

Common mistakes made by start-up businesses regarding Intellectual Property.

Probably the biggest mistake that start-ups encounter is not checking to make sure that no other business or person is using the name that was selected. Sometimes, a new owner will check the records with the Department of State in which he is doing business but he fails to obtain a trademark search. The state records only show what businesses are incorporated – they do not indicate what names have been registered with the U.S. Patent & Trademark Office or which names are in use in the state but have not been formally recorded.

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How To Protect Your Business: The Fundamentals of Trademark and Copyright Issues
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by Monica McCabe, published in Modern Miracles, Summer 2014
So you want to obtain a trademark, a copyright or is it a patent?

Trademarks are usually names, symbols, designs or phrases that are used by a person or business to identify its/his products and/or services and to distinguish those products or services from competitors’ products or services.

As long as a trademark is in use in commerce in the U.S., it can last indefinitely. Five years after registration, the owner must show commercial use of the mark in the U.S.  A trademark registration must be renewed every 10 years from the registration date.

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Deductions from Wages…Continued
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In our last submission we spoke generally about New York State Law, which has a broad, general prohibition that prevents employers from taking deductions from employee pay. We then focused on some exceptions to the rule, such as deductions “for the benefit of the employee,” as well as deductions for overpayments and advances. In the case of overpayments and advances, the regulations promulgated by the Department of Labor (DOL) provide more detail. A link to these regulations (See Deductions from Wages Section 193 of the New York State Labor Law and 12 NYCRR Part 195.) was provided in our last submission, but we thought it would be helpful to pass along some of the specifics.

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Deductions from Wages
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As my mother used to say, “The road to hell is paved with good intentions.” Good intentions, in this case, can involve an employee responsible for payroll, deducting an overpayment to an employee directly from the employee’s next paycheck, or deducting all or part of an advance or loan when due. After all, the payroll employee reasons: This is my company’s money, and the company is entitled to have it back. This rationale is logical, but will not pass legal muster if certain requirements are not met.

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Master Recordings — A Re-Emerging Asset Class Part 2
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My last blog discussed how master recordings, or masters, are re-emerging as an asset class. In acquiring masters, however, a buyer has to be mindful of a number of significant legal issues.

Limited Rights: As a practical matter, the exploitation or licensing of masters is limited when the owner does not have the related music publishing rights, or at least a strong relationship with a publisher.

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Master Recordings — A Re-Emerging Asset Class Part 1
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There is a topic within the music industry that is attracting attention for the first time in quite a few years. This is the increased interest in purchasing the rights to master recordings, or “masters” as they are known in the industry. Masters are the original sound recordings made by recording artists under recording contracts. Owners of masters have the rights to sell, distribute, reproduce and perform these recordings, and authorize others to do the same.

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How Are You Feeling? NYC’s Earned Sick Time Act Takes Effect April 1
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On April 1, 2014, New York City will join several other municipalities including San Francisco, Washington D.C., Portland, Seattle and Connecticut in requiring employers to provide paid sick leave for employees, under a new law called the Earned Sick Time Act (ESTA).

ESTA covers employers with 15 or more employees, but initially will go into effect for employers with 20 or more employees. Employers with 15 or more employees are not required to provide paid sick time until October 1, 2015. Employers with fewer than 15 employees must provide up to 5 unpaid sick days annually, beginning October 1, 2015.

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HR Resolutions for 2014: A Checklist – Part 2
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In our last blog, we began a New Year’s checklist of Human Resources items. In this blog we complete that list.

6.  Employee Classification:

The last few years have seen a rise in the number of employee misclassification cases being brought in both state and federal court.  2014 looks like more of the same. These cases, in which a single plaintiff can bring a class or collective action on behalf of others who are “similarly situated,” pose a significant risk to companies, both large and small.

The danger comes from misclassifying employees as “exempt”, or treating workers as Independent Contractors, when they are really employees. In either case, the potential damages, in the form of unpaid wages, unpaid overtime, unemployment insurance contributions, liquidated damages, and attorney’s fees, can be quite substantial. This potential liability means it is a good idea to conduct an annual audit of how different groups and categories of workers are treated, and to make the necessary adjustments in order to minimize or eliminate potential claims.

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