Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

Recently, the NY Labor and Employment Blog offered a description of changes to New York’s “mini-COBRA” law, along with other recently-passed employment legislation. The Governor’s Office notes that the legislation was passed so that New Yorkers can access the subsidy available under the Federal Stimulus Program.

We practice in New York, and health insurance coverage laws can be very confusing, so we offer a few comments that might be particularly helpful to both employers and employees.

First, a little background: Since the federal COBRA law covers only employers with 20 or more employees, some states have enacted similar laws to cover employers with 2-19 employees. By “cover” we mean, of course, that terminated employees (and some others) must be offered the opportunity to continue their health insurance coverage for a limited period, albeit without the employer subsidy (but now, for some, with a temporary federal “Stimulus” subsidy). Usually, the state laws mirror the federal law, although each state may have enacted one or two variations.

The New York amendment to its “mini-COBRA” law is one such variation. The amendment extends coverage from 18 months to 36 months following termination of employment. On the surface, this new extension to 36 months seems to cover all New York employers (and, thus, all terminated employees in New York). It does not.

As mentioned by The New York Labor and Employment Blog, New York’s law applies only to insured plans. Thus, New York’s law would not apply to the largest, self-insured employers. They continue to be covered only by the federal law, even in New York.

Although well-intended and undoubtedly of benefit to some individuals and their families, the New York provision may become a source of further confusion. Employers are required to provide notice to terminated employees in a detailed COBRA letter and with all the recent changes to COBRA, state and federal, it pays to review the letter carefully and to ask appropriate questions. 
 

The NY Labor and Employment Blog offers a detailed description of these changes, along with other recently passed legislation. 
 

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Everyone loves a good story, and Books on the Common has plenty of them – including a nice one of their own.

Bev and I are avid readers and browsers - - we are not all law, all the time - - and we are going to enjoy the convenience of frequenting our new Main Street neighbor, Books on the Common.

The longtime Ridgefield bookseller recently relocated to Main Street after 25 years at their previous address at Copps Hill Common. The store has moved to historic 404 Main Street, into the space that belonged to Bedient’s Hardware for 100 years. According to the Ridgefield Press, owners Ellen Burns and Darwin Ellis are looking forward to many years in their new Main Street location.

As business owners ourselves, we applaud the efforts and success of Burns and Ellis. It takes a lot of hard work and knowledge to maintain an independent business in any situation, but in today’s economy it is especially challenging. In fact, some of the fixtures in the new store are from other local bookstores that did not fare as well.  According to the Press, Burns said the proprietors of those stores were happy to have a piece of their own history continue in another independent bookstore. 

We are pleased to call them our Main Street neighbors and wish them much success. 
 

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Attorney Rush Nigut was inspired to write in his blog about Y.E. Yang’s recent victory over Tiger Woods in the PGA Championship. Nigut compared the sporting match to a trial, correctly stating that in both cases, there is no guaranteed outcome.

He makes an excellent point; one with which we are familiar in our own practice, for many of our clients are considered the “underdog.” We, too, are often underrated by our opposition, but are often motivated even more by these situations. (And we make it a practice never to underrate our opposition.)

In 2007 the University of South Florida did a comprehensive study on “The Appeal of the Underdog.” The researchers found that for various reasons, most people do, in fact, sympathize with the perceived underdog.

As trial lawyers, it’s very important for us to keep that in mind.

However, there is a flip side, too. While it takes courage to confront a case when you’re the underdog, because of the inherent uncertainty of trials, we encourage reasonable settlements whenever we can.  Regardless of preparation or perception, in uncontrolled circumstances (courses or courts), you never know which way the ball is going to roll. 

Photo:  Tiger Woods, courtesy Wikimedia

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As indicated by a recent Employee Rights Post, firing an employee on trumped-up charges in retaliation for filing discrimination charges is a definite no-no.

The story illustrates the importance of context. For example, New York and Connecticut are both “at will” states. This means that employees can be fired at any time for any reason, even “trumped up” reasons. But, there are always exceptions, prohibited discrimination being one of the biggest, and retaliation being another.

When employer and employee are covered by non-discrimination laws (not all are), the firing can’t be for a discriminatory reason. And, even if the firing is for a seemingly legitimate reason, it can’t be in retaliation for filing discrimination charges.

Retaliation occurs when the employee has already made a complaint about some kind of discrimination and the employer takes an adverse action, such as firing the employee. Retaliation can also involve actions other than firing, such as demotion, unfavorable assignments and general harassment.

To be clear, an employee can still be fired or transferred for legitimate reasons. But, as suggested by Ellen Simon, those reasons will need to stand up to scrutiny because of the context - - a pending discrimination complaint.

Note, too, that the original discrimination claims can be dismissed while the retaliation claim survives.
 
 

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The Legal Blog Watch recently posted a story about a judge who admonished an attorney for his client’s appearance in court. Surprisingly, this happens more often than one may think.

In fact, a fellow attorney blogged about a motion recently filed in Florida, alleging that a trial lawyer is wearing beat up shoes to gain sympathy with juries: “Upon reasonable belief, Plaintiff believes that [name] wears these shoes as a ruse to impress the jury and make them believe that [he] is humble and simple without sophistication."

Admittedly, human nature often wins the battle with common sense, and subliminal perceptions may play a role in deliberations. As we know, attire can support or interfere with the message one is trying to get across to a judge or jury.  At a minimum, as a distraction (flashy drawing away attention); at worst contradicting (nervous adjustment contradicts attempts to appear truthful). So, following are some additional common sense dressing tips we’ve found helpful for court appearances:

Choose: comfortable clothing (adjusting your clothing may make you appear nervous and suspicious), conservative suits in modest colors.

Avoid: trendy clothing, expensive, excessive or flashy jewelry  (especially if one is looking for a financial settlement), loud colors , revealing outfits, inappropriate shoes. Do not wear a lot of perfume or cologne.

In general, dress as nicely as you can on your budget, and most importantly, make sure your client leaves home anything that can be perceived as a potential threat (chains, Swiss army knives, etc).

At one time we would have said the issue is respect for the law and the institution of the courts. These days, that is not a compelling argument. However - a big however – interference with a successful outcome is always a compelling argument.

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Blogs are buzzing about a lawsuit brought by a 27-year-old woman against Monroe College to get her $70,000 tuition payment back because she claims the school hasn’t done enough to help get her a job.

Through this lawsuit, she and her legal advisors have raised the question: to what degree (yes, the pun is intended) is an educational institution responsible for a student’s post-academic success?

Not surprisingly, Monroe College spokesman Gary Axelbank claims the lawsuit is without merit.

News accounts, although numerous, tell us very little about the specific facts or the legal theories behind the lawsuit. We are not in the business of trying to handicap pending cases, especially based on pure speculation. However, we are curious, so we checked out the Monroe website for background. Here’s a sampling:

According to Monroe College’s Mission Statement, the school provides “caring and effective teaching and sustain faculty who…are dedicated to student success. We build on these strengths to prepare graduates for successful careers.” The College’s Office of Career Advancement helps with career assessment, resume writing, job search and strategy, employer recruitment and placement, interviewing skills, and other job search guidance. Monroe provides every student with a Career Advisor and offers access to online and web-based career resources.

We will continue to follow this case as it develops in the judicial system. In the meantime, the court of public opinion, despite not having all the facts, seems to be readily in session.
 

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