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Tuesday, March 28, 2017

Are employees owed overtime for checking and answering email after hours?


Technology is a double-edged sword. It allows us to work remotely and to have greater flexibility as to where and when we work, but the freedom it affords can also be a burden. All the work that is being done outside of work hours is creating a compliance problem for many businesses.


Read more . . .


Monday, March 13, 2017

Hiring The Right Person The First Time -


With the improving economy has come a tightening in the job market. Good employees are becoming harder to find. While no one can guarantee that you will always make a sound hiring decision, here are several tips to improve the odds that you will find and hire the best person available for your open position.


Read more . . .


Monday, February 27, 2017

Employment Discrimination Laws in a Nutshell -

There are a variety of state and federal laws that make it illegal for employers to discriminate based on certain characteristics when making decisions about hiring, terminating, promoting, demoting or compensating employees, or any other terms and conditions of employment. Employers are also barred from retaliating against employees who file a discrimination-related complaint or engage in other protected activities. While the laws vary from state to state, all employers have an obligation to adhere to the following federal laws.

Title VII of the Civil Rights Act of 1964

This law prohibits discrimination in the workplace based on race, color, national origin, religion and gender. Title VII also established the Equal Employment Opportunity Commission (EEOC), the government agency that is tasked with investigating employment discrimination claims.  Before an employment discrimination lawsuit under federal law can be brought, it is necessary to file a claim with the EEOC. Title VII applies to employers with 15 or more employees.

Age Discrimination in Employment Act (ADEA)

The ADEA prohibits employers with 20 or more employees from discriminating against individuals who are 40 years or older and their age cannot be used as a factor in any employment decision.

The American with Disabilities Act (ADA)

The ADA prohibits employers with 15 or more employees from discriminating or harassing disabled employees and requires employers to make reasonable accommodations that will enable a qualified disabled worker to complete his or her job functions.  

The Pregnancy Discrimination Act (PDA)

The PDA prohibits discrimination based on pregnancy regarding any aspect of employment in businesses with 15 or more employees. Women who are temporarily unable to perform their jobs due to pregnancy must be treated similarly to other temporarily disabled workers. The ADA may also protect a woman who suffers from a pregnancy related medical condition.

State and Local Laws

Most states and many municipalities have laws governing the treatment of employees. For example, The New Jersey Law Against Discrimination ("NJLAD") NJSA 10:5-1 prohibits employment discrimination based on race, creed, color, national origin, ancestry, age, marital status, familial status, sex or sexual orientation, atypical cellular or blood trait, generic information, or service in the armed forces.  This law is considered "remedial legislation" and can provide relief beyond what federal law may permit.

An example of protection under municipal law is the New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York. This law prohibits discrimination in New York City and provides relief in excess of what is required under New York State law. Individuals are protected from discrimination in many areas, based on a number of protected classes.

The Bottom Line

In sum, employers are prohibited from discriminating against employees and potential job candidates because of race, religion, sex, age, disability, pregnancy or national origin. Not only can violations lead to financial penalties, a discrimination lawsuit can damage a business' reputation. By engaging the services of an experienced employment law attorney, you can establish policies and procedures to ensure that your business is in compliance with these laws.

The Law Office of Randall P. Brett assists employers to avoid claims of discrimination and provide strong legal representation in court if needed. The firm also works with employees who have suffered discrimination to achieve just outcomes for their claims.

 


Tuesday, November 15, 2016

Oral Contracts - Are They Binding? -

There is quote attributed to Samuel Goldwyn, a famous film producer in the early years of Hollywood, that goes "A verbal contract isn't worth the paper it's written on". While this is actually a misquote of what was really said, nevertheless it conveys a widespread misconception that verbal contracts are unenforceable.  However, a contract made orally with another party, without embodying the particular terms in a signed writing, can still be valid and binding. Even so, any disagreement concerning the deal may pose multiple problems for both parties. 

In order for the court to give a verbal contract legal effect, the terms of the deal will have to be demonstrated.


Read more . . .


Tuesday, November 1, 2016

Opening a new restaurant? -


Some key legal considerations for restaurateurs

Each year, approximately 30,000 new restaurants are opened in the United States. Most restaurateurs understand the great risk that comes with these ventures; in fact, some sources estimate as many as 18,000 of the 30,000 restaurants opened this year will fail within the first three years in business. Despite the risk, many chefs and hospitality professionals dive right in. If you’re a hopeful restaurateur, legal planning is an absolute necessity to ensure you don’t fall victim to many of the common mistakes that cause these businesses to fail. Consider the following:

Business Entity
All restaurant owners must carefully consider the best corporate structure for their businesses.


Read more . . .


Tuesday, October 18, 2016

Can Non-Compete Agreements Be Enforced?

Hiring a new employee or training an existing staff member in new skills is a costly endeavor. Employers want to make sure that the money is well spent and the employee will not use the skills or knowledge of the employer's business to compete. Employers try to restrict employees from going to competitor and employees, of course, do not want to be limited to working for only one company especially if a better offer comes along or things do not work out with the employer. Employees also make an investment in their skills and capabilities, and may bring to the employer decades of knowledge of their industry, their profession, or customers. Each side has valuable rights and interests that need to be balanced. What often results is that the employer requires employees to sign a document that restricts who the employee can work for if he/she leaves the current employer.

While permitted in most states (California being a notable exception) Courts typically disfavor “covenants not to compete” or “non-compete agreements.”  Therefore, the terms and provisions of these contracts must not be overly restrictive of the employee.  In order for a non-compete to be upheld, the document must “be reasonable in scope, geography, and time.”  It cannot last for years on end, or prevent the employee from working anywhere in the entire state or states. Likewise, an employer cannot prohibit an employee from working in a large variety of industries, especially if the restriction includes industries wholly unrelated to the employer’s line of work. 

Two other elements are analyzed by a court to determine the validity of a non-compete agreement:  (1) there must be mutual consideration between both the employer and employee at the moment the contract is signed and (2) the non-competition agreement must protect “a legitimate business interest of the employer.”  Preventing a former employee from working for an employer’s business rival, or preventing disclosure of trade secrets or personally identifiable information of important clientele, are typically considered justifiable business interests.

Non-compete agreements are generally implemented to protect a company’s most important assets:  its reputation and its confidential information.  However, the terms protecting these assets cannot be overly broad or vague.  Thus, in evaluating the “reasonableness” of a non-competition agreement, the court will conduct a “balancing test.”  This is a comparison of the employer’s need to protect its “business interests” with the “burden that enforcement of the agreement would place on the employee.” 

The validity of non-compete agreements is decided on a case-by-case basis. The court will consider circumstances such as the length of time certain information will be kept confidential, and the company’s reasons for limiting the employee's job search to a geographical area. If the court finds that the agreement serves a valid interest and does not exceed the range necessary to protect that interest, the entire agreement may be upheld. The agreement cannot prohibit the employee from earning a living or be against the public's interest (for example, it is in the public's interest to permit people to hire any attorney they wish to, so non-compete agreements are generally prohibited in law firms).

The court also has the option of doing away with overly intrusive terms in a non-compete, rather than invalidating the agreement entirely. In cases in which a non-compete is perceived by the court as punitive, unduly restricting an employee from obtaining employment, the agreement will not be upheld.  A licensed attorney who specializes in employment law will be able to gauge the likelihood that a particular non-compete agreement will be enforceable.

The Law Office of Randall P. Brett assists employers and employees in navigating this important but difficult area of the law. Give us a call if you have questions about non-compete agreements or any other matter.


Tuesday, October 4, 2016

Deposition Do’s and Don’t’s -

 

Litigation, or resolving disagreements through a lawsuit, are a growing concern to both business owners and individuals. While there are alternatives to litigation (and should be considered if you have a dispute), the fact is that most significant disputes end up on the path to court.

Matters that are subject of litigation are ultimately decided on facts and the applicable law. The process by which parties uncover those facts is called discovery.  There are many tools in the discovery toolbox.  A deposition (questioning of a party or witness under oath, often referred to as a “dep” or “depo”) is one of the most powerful tools.  

 
At the start of the proceeding, the judge sets a date by which depositions are to be completed.  Attorneys issue subpoenas requiring a party or witness to appear at a certain place on a certain date and time (production of documents or other evidence may also be requested).  A court reporter is present to create a record of the questions and answers.  Some depositions are video recorded.
 
At the deposition, both parties should have their attorneys present.  A witness can have his/her own attorney present if he/she so desires.  Those testifying are placed under oath, and the attorney issuing the subpoena then starts the questioning.  Next, the opposing attorney has a turn to ask follow up questions.  This normally goes back and forth until the attorneys are done.  
 
Depositions aren’t just about questions and answers.  Just as critical as what was said can be how it was said.  Was the person evasive?  Uncomfortable?  Credible?  Nervous?  Sure of the facts?  Would the person damage or help the case if testifying in court?  These issues can be critical when deciding whether to settle a case or proceed further.  If one party’s witnesses are much weaker than those of the opposition, it may make that party much more willing to settle.
 
If you’re going to be deposed, you should keep the following in mind:
 
Tell the truth.  If you knowingly make a false statement while you’re under oath, you may be charged with perjury. In addition, you will lose credibility, and weaken, your case.
 
If you honestly don’t know the answer to a question, say you don’t know.  A deposition isn’t a contest and you won’t lose points by truthfully admitting you don’t know something.
 
Stick to the point and answer the questions as asked.  Needlessly stating information not requested may damage your case.  
 
If you don’t understand a question, ask that it be repeated or re-phrased.  If you feel you need to talk to your attorney before answering, ask to speak to your attorney. After doing so, answer to the best of your ability, in light of your attorney’s advice.  Your attorney may object to a question, but you may have to answer it anyway.  Prior to trial, your attorney may ask the judge not to use the response as evidence, as the question was improper. 

 

Answer the question asked, not the one you wanted to have asked. Listen carefully to the question and wait until the person asking it has completed the question. Too often, people hear what that want to hear, which may not be what was asked. Answering a question that was not asked could put testimony into the record that could damage your case. When in doubt, ask the questioner to clarify his or her question before you try and answer it.

Though depositions can be stressful, they are not to be feared.  They are opportunities for all parties involved in a legal matter to tell their side of the story.  

 

The Law Office of Randall P. Brett represents both plaintiffs and defendants in many different types of lawsuits as well as in arbitrations and mediations. If you have litigation-related questions, need an attorney to represent you, or are considering litigation, give us a call.


Wednesday, September 28, 2016

Protect Your New Business with Preventative Legal Planning -

Most Legal Issues Can Be Resolved Before They Even Arise. Here’s How.

Most people are familiar with the idea of “preventative medicine". But business owners, especially those who are just beginning a business, should also know about "preventative legal strategies".

The term refers to anticipating legal issues and conflicts and working to prevent them, rather than solving them or “winning” them once they occur. Companies can benefit from implementing preventative legal strategies as this approach is often less expensive than litigation, mediation, arbitration, and local, state and federal fines.

By working with an attorney early on in the creation of your new business, you can build a sound foundation for your company while likely saving money down the road. The following steps can serve as a great starting point for sound legal planning:

  1. Establish a relationship with an attorney who can assist you with the legal issues your new business will face early on in the start-up process. When an attorney is familiar with your firm from the onset, he or she can more effectively anticipate and address legal challenges and provide solutions. Also, many business law attorneys will allow for a flat-fee relationship that enables you to address legal issues as they arise without incurring any additional expenses.

  2. Determine what you want, negotiate it and memorialize it in proper legal documents. Businesses encounter disagreements with vendors, landlords, employees, partners and others. To minimize the number of conflicts, it’s important to establish written contracts for all important agreements, arrangements and accommodations.

    A business law attorney can help you identify all key concerns regarding employee compensation and benefits, property usage and maintenance, relationships with suppliers and responsibility and profit sharing with partners. An attorney can ensure that, when a question, disagreement or conflict arises, your interests are written down, clearly stated and legally protected by a mutual agreement with the party in question.

  3. There are many exciting steps in starting a new business venture; selecting the type of legal entity the business will be is rarely one of them. Yet, it’s important to select a business structure early. Corporations offer numerous advantages but also require officers, boards, articles of incorporation and other formalities. Partnerships and sole proprietorships are simpler than most other business structures but open owners to potentially costly liability. Limited liability companies offer a middle ground for many, providing a liability shield and comparative simplicity. A business attorney can help you determine which business structure will work best for you by taking into account tax planning, location and other key considerations.

Even with preventative legal planning, a lawsuit may arise. If it does, it’s important to approach it from a business, not a personal standpoint. This strategy can help you make decisions that are best for your company’s future, keep your focus on the day-to-day needs of your business and avoid unnecessarily disclosing information.

The Law Office of Randall P. Brett can provide legal advice and hands-on assistance during the formation and continued operation of your business.


Tuesday, September 27, 2016

Buying Out a Partner When There Is No Shareholders’ Agreement in Place -

Like most relationships, business partnerships frequently experience highs and lows, with periods of both prosperity and turmoil. When ongoing disagreements cannot be resolved, or one partner decides to leave the business, the remaining partner(s) often seeks to buy out the shares of the departing party. If there is no shareholders’ agreement in place, and the partners are in agreement, the dissolution of the partnership can usually be accomplished with the help of a qualified business law attorney and a CPA.

If the business is a corporation, the purchase would likely be structured as a stock sale. In essence, one party would purchase the exiting partner’s shares of stock in the corporation, in exchange for the purchase price. The purchase price could either be paid up front at the closing, or some, or even all, could be paid to him over a period of time. If any of the purchase price is to be paid over a period of time there normally would be a promissory note that the remaining partner(s) would sign documenting that the departing partner is owed the money, and providing for payment terms. These payment terms would include the interest rate, number of payments, and frequency of payments. Typically the remaining partner(s) stock in the company would be pledged as security for the repayment on the note. If the business is not a corporation the steps would be similar but slightly different.

Prior to the dissolution of the partnership, all parties must consider whether the business has any debt. If it does, all partners will need to carefully review the loan documents to make certain that the partner’s departure from the business does not trigger some type of acceleration of the debt. In a small business it is normal for a lender to require the business owners to personally guarantee the debt. So, if this is the case, the business may need to negotiate with the lenders to get the exiting partner released from the debt.

Another item to consider, which should be explored with the guidance of a qualified tax advisor, is whether the partner’s sale of the business to the remaining partner(s) will trigger any taxes. This may be more so from the departing partner’s standpoint but there may be some capital gains taxes that will have to be paid and all parties should get appropriate advice.

Finally, if there is real estate involved that is used by the business, there may be steps that have to be taken to address that. Perhaps the business leases office space from someone else. The business will need to make certain that the change in ownership does not somehow violate the lease and if it does, the partners should seek the landlord’s consent. If the departing partner has personally guaranteed the lease, the remaining partner(s) may need to negotiate with the landlord to release the exiting party.

The bottom line is there are many factors that come into play when dissolving a business partnership. An attorney should be contacted before any decisions are made to ensure all of the necessary details and consequences are considered in the preparation of a purchase agreement.

The Law Office of Randall P. Brett has assisted many business owners to restructure their business arrangements, purchase other member's shares, and ensure that the organization remains on-going. Give us a call to see if we can help you, too.

 


Tuesday, May 24, 2016

Suing for Injuries Sustained while Playing Sports -


Now that the weather is getting warmer in most parts of the country, "weekend superstars" are getting their sports on again. Like spring showers bringing summer flowers, the increase in physical activity is guaranteed to lead to an increase in injuries.  Whether it is due to a failure to keep in shape over the winter, lack of toning and preparation, or just the body getting one year older, sports medicine doctors and emergency room physicians can count on an increase in patient load once the birds begin to sing and the trees grow new leaves.

Any sports can be dangerous for participants. It does not matter what the sport is, there is always the chance of injury when engaging in physical activity.
Read more . . .


Tuesday, May 17, 2016

Terminating a Franchise Agreement -


Buying a franchise can be a great opportunity for an entrepreneur to start a business using a successful operational structure of a proven model. Despite all the resources that a franchise provides, not all are successful. Unfortunately, with most franchises, you can’t just shut your doors and cut your losses; getting out of a franchise agreement can be difficult, leaving a once hopeful entrepreneur stuck in a business that may not be profitable or enjoyable to operate.

If you are looking for a way out of a franchise agreement, it’s absolutely imperative that you contact an attorney who has experience with franchise law and understands the many complexities of the franchisor-franchisee relationship. In determining whether you can terminate the agreement, you will need to carefully review the contract which should clearly outline the circumstances which must be met for either party to terminate it.
Read more . . .


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