ARTICLES

Fair Play Construction Act

In recent years, government agencies and legislative initiatives at both federal and state levels have indicated that independent contractor arrangements will receive enhanced scrutiny.  Government interest in misclassification of these employment arrangements stems from the significance of revenue derived from employment taxes, FICA/FUTA, unemployment insurance contributions and workers’ compensation premiums. Misclassification has also highlighted various immigration issues. Specific to the construction industry, New York has enacted the Construction Industry Fair Play Act, effective Oct. 26, 2010, adding a new article (Art. 25-B) to the state Labor Law to further specify the circumstances when a worker can be classified as an…

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An Employee Raises a Safety Concern with Their Employer and Gets Fired for It. Now What?

New York State Labor Law Section 740 prohibits an employer from taking any retaliatory action against an employee who discloses or threatens to disclose a practice of the employer which poses a substantial and specific danger to public health or safety, or which constitutes health care fraud. Retaliatory action includes, but is not limited to, termination or demotion.  To recover under a Section 740 claim, the employee must show that he or she first reported or threatened to report the alleged illicit policy or practice to their employer or a supervisor before then making such disclosure to a public body.…

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Differing Site Conditions in Commercial Construction Contracts

Encountering unforeseen site conditions is a commonly disputed area of commercial construction, with litigation ensuing to determine whether the project owner or the contractor who performed the work should be responsible for bearing those additional costs. Naturally, it is in the interest of all parties to decide this when negotiating the terms of the contract, and to conduct sufficient research prior to excavation to minimize the chance of encountering unforeseen conditions. This research is often done through Geotechnical Data Reports (GDR), which are compilations of data gathered during site investigations.  However, sometimes even properly conducted boring samples provided to bidders…

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Modern Computer Crimes Expose the Risk in Relying upon Traditional Cyber Fraud Insurance

Business Email Compromise (“BEC”), or social engineering frauds, are scams that induce a party to transfer funds according to criminally altered directions. These scams target organizations that receive payment instructions through computer systems or email. Such criminal activity has become more pervasive, as a fraudster need merely “spoof” an email, purporting to be a vendor or employee, sending an inconspicuous fraudulent wire transfer request or instruction. An organization that falls victim to such a scam will likely find that whether their insurance provides coverage for their loss is determined upon intensive interpretation of the language of the specific policies. Computer…

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New York’s Compassionate Care Act Puts Employers in a Difficult Position

Medical Marijuana in New York In July 2014, New York’s Compassionate Care Act (“CCA”) was signed into law. The CCA took effect in January 2016 and made medicinal marijuana use legal in New York. New York is now one of 29 states where medical marijuana use is legal under state law, along with the District of Columbia. The CCA is more restrictive than many state medical marijuana laws. When it was passed, the CCA only allowed for patients suffering from a few serious conditions, such as cancer, Parkinson’s disease, and ALS, to be certified for medicinal marijuana use. The list…

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Issues to be Determined in a Divorce

A divorce can be tough on all  parties involved, including children.  Divorce impacts all aspects of the family unit and  can be emotionally and financially taxing on the parties.  All economic issues, support issues and child custody issues are settled or determined by a court. The manner in which couples choose to settle these issues will determine the cost and emotional toll the process will take on the family as a whole. The Process Spouses have a number of options as to how to proceed in obtaining a divorce and resolving the issues unique to their family situation.  Not all…

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Duty of NY Employers to Provide the Disabled Reasonable Accommodations Under the Americans with Disabilities Act

Most employers know that they must provide reasonable accommodations to disabled employees upon request; however there are certain situations where employers have to be proactive and ask employees if an accommodation is necessary to ensure compliance with state and federal laws. When No Request for Accommodations is Made The Second Circuit Court of Appeals (covering New York, Connecticut, and Vermont) recently ruled that the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations if they should have known an employee was disabled. In Brady vs. Wal-Mart Stores, Inc., an employee with cerebral palsy never requested accommodations, but witnesses…

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Social Media, Smartphones and Divorce: Don’t Give Your Ex Ammunition

With smartphones and social media being so prevalent in society today the temptation to post sexy pics or type inappropriate comments is always looming. Particularly, if you’re considering divorce proceedings or custody action or are in the midst of it. It’s extremely important to think before you post on social media, tweet, text, leave a voicemail or send an email. You might be angry at your ex or want to make them jealous and anger and jealousy are known to get the best of people. Fight those feelings and refrain from typing, sending, or posting anything inappropriate. Ask yourself, if…

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Construction Law | How to Get Paid: What Are Your Legal Rights?

Do I need a Construction Law Attorney? How do I prove I honored the contract? How to write an effective contract? Too often, contractors find themselves struggling to collect payment even after spending thousands of dollars to complete a project. The reason may be a dispute over the work, the timing of the work or payment or countless other excuses from the client. In almost every situation, a stronger contract would have protected the contractor and gotten them paid sooner. Protecting Contract Rights To write an effective contract and make sure it actually protects you, you need to keep five…

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New York’s Changing Wiretap Law: Can a Parent Consent on Behalf of a Child?

I. Where a parent has a good faith, objectively reasonable basis to believe that it was necessary for the welfare of her infant child to record a conversation between the child and another person without the other person' consent, the parent can consent to the recording on the infant child's behalf and admission of the recording is not precluded by CPLR § 4506. Penal Law § 250.05 states that "[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication." Penal Law § 250.00(1) defines "Wiretapping"…

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