How the Recession Has Impacted the Area of Employment Law

Employment law is a big umbrella and within that, there are many different practice areas in the Outten and Golden, LLP law firm in New York.  Representing only employees or the plaintiff's side, they have the Executive and Professional Practice Group, dealing with offer letters and contracts, the Financial Services Practice Group, dealing with bonus claims and arbitration, the Wage and Hour Practice Group, dealing with a lot of class action, and the Discrimination and Retaliation Practice Group, to name just a few.

When one talks about employment law, Tammy Marzigliano, partner at Outten and Golden, LLP, says it's not really "pigeon-holed" like real estate.  Instead, it is pretty diversified so in times when the economy is not doing well, they're not impacted like other firms or specialities.Source: www.outtenandgolden.com

Outten and Golden, LLP is seeing more severance agreement claims because of all of the layoffs, due to the recession, says Marzigliano, who thinks that employers definitely try to cut corners when things are bad and this impacts wages that they're paying people and they don't want to pay out bonuses, creating an uptick in bonus claims.

The big thing, Marzigliano says, is how the recession impacts their area of law.  "While there's a lot more cases, there's also a lot more fighting," she says, explaining that when the economy is doing well, employers are more willing to settle cases and have conversations and when there is a recession, they're more likely to fight it.

The approach at Outten and Golden, LLP remains the same, regardless of the economy, says Marzigliano but points out that a big part of their practice is advising clients and helping them navigate through their employment matter.  Now they are seeing that more during the recession as employees are confused and don't know what their rights are.

Marzigliano stresses that an employee should always be really careful before they sign anything and have someone review it, whether it's an employment contract or severance agreement.  When someone signs a severance agreement, they're waving their rights and they may have more viable rights.  The challenge, says Marzigliano, is that when you're dealing with a recession, people don't want to spend the money to have it reviewed.

Marzigliano thinks the hot trend right now is the Whistle Blower Retaliation Group, specifically the Dodd Frank Act, section 922, which was passed in 2010.  There are two pieces, she says, that are of particular importance when it relates to employment law - the whistle blower bounty and the anti-retaliation piece.  The whistle blower, who may not necessarily be an employee, would get a large percentage of any recovery.  The anti-retaliation piece, which Marzigliano believes is pretty robust, is to incentivize people to speak out and the law will protect them and give them significant damages that were not otherwise available.

"This is an exciting time," says Marzigliano, as she sees this playing out more and more.

Tammy Marzigliano is is a partner at Outten & Golden LLP, representing employees in litigation and negotiation in all areas of employment law.  For more information on her, click here.  She spoke with the Employment Law Channel, part of The Legal Broadcast Network, providing online, on-demand legal video content.

Massachusetts Crime Lab Chemist Falsified Thousands Of Tests

In what might be the largest case involving crime lab test tampering, it will be catastrophic in terms of the results, says retired Superior Court Judge of Santa Clara, California, Eugene Hyman.  He believes that the motivating factor for this Massachusetts Crime Lab analyst to falsify thousands of tests was just being recognized and appreciated for the volume of work that she produced.Source: www.vimeo.com

"It becomes a nightmare in terms of going through all of the records to determine if she was the analyst," says Hyman.  After identifying the population, Judge Hyman believes that the state will have to notify every defendant in every case that this lab analyst touched and as a defendant, they would most likely want to contest their conviction as a result of this.  Each case is going to have to be examined and in Hyman's experience from drug cases, is that in a lot of them it's not going to matter because there's other facts, statements, witnesses and other analysts testing different samples.  There could be different counts where different analysts were assigned and Hyman believes very few defendants are actually going to leave as a result of this.

Source: rsc.orgThat being said, Hyman points out the huge potential for civil liability, as one has to say to the state that there needs to be a system of review with regards to their analysts.  "Not having an appropriate system where a person can do this for years and not get caught is a violation of duty and depending upon if the convictions get reversed, there might be economic consequences," Hyman says.  He believes that it is going to be more expensive to figure this all out than it will potentially be in terms of damages.

Hyman believes the analyst might be facing criminal charges, under both state and federal law.  Under state law, she is interfering with justice and under federal law, it is a violation of a person's civil rights in terms of falsifying data.  For every test she falsified, that is a count and there are a lot of counts, so she is going to be looking at quite a bit of jail time, Hyman adds.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

Employer Bonus Offers and Importance of Terms

In a bonus offer or letter, Katherine Blostein, attorney and associate with Outten and Golden, LLP in New York, likes to see a few terms that actually say it is guaranteed bonus.  The amount, she says, should be qualified by words such as "a minimum guarantee," or "an amount equal to a certain amount of dollars."

The offer should also describe what portion of the bonus will be paid in cash and what will be allocated to deferred compensation, such as granted stock options or any other form of deferred compensation, says Blostein.Source: outtengolden.com

Blostein says that if the company isn't willing to commit to a certain percentage or number, there should be at least a representation that the employee will be treated the same way as other similarly-treated employees at the person's level.

Regarding when the payout should occur, Blostein says that is definitely should be specified in the offer letter itself or on the plan when the bonus should be received.  It is important, she notes, because any bonus, whether it's guaranteed or not, should be paid to the employee within 2 1/2 months of the end of the company's end of fiscal year.  If not, the employee might be subject to deferred tax issues and thus possible tax fines.

It is important to get the correct language in the offer letter to protect the bonus and a reason the employee might not get it is if they're terminated for cause or if they resign voluntarily, notes Blostein.  In terms of death or disability, typically, an employee should get the entire guarantee or at least a pro rata portion of it dated to the termination.  If the terms are not written down, the company can make an argument that the person wouldn't be entitled to it, Blostein adds.

One term that is important is the form selection and choice of law, which states where an employee would be able to bring a dispute over their offer letter or contract and what state law would govern that dispute, Blostein says.  It is important, she says, because the employee needs to know where they'd be filing a lawsuit or proceeding if they want to enforce the terms of the contract.  For financial services employees in particular, it's important to know that most of the time the offer letter or contract they're asked to sign will require mandatory arbitration, Blostein points out.

"All terms of an offer letter should be carefully reviewed by the employee and their attorney, especially if there's a guarantee because that needs to be protected," says Blostein.

Katherine Blostein is an associate in Outten & Golden’s Executives & Professionals Practice Group in New York.  For more information about her, click here.  She spoke with the Employment Law Channel, part of The Legal Broadcast Network, providing online, on-demand legal video content.

Bankrupting Terror Organizations Legally

A terror organization is fundamentally a business, just like drug cartels or organized crime. The belief that terrorists are just bunch of violent fanatics is true for a lot of the low-level terrorists. For the ring leaders it’s mostly an act, part of the way they impress their donors and the populations under their control. On a day-to-day level, every terror group is first of all a financial organization, expending the bulk of its efforts to raise, invest, allocate, and transfer money. 

Attorney Darshan-Leitner is the director of the Tel Aviv-based Shurat HaDin – Israel Law Organization, a worldwide network of lawyers who seek to go after the terrorist money trail.

Leitner says..."If you stop the money – you can stop the flow of the terrorism."


The common token of how cheap bombs are, as proof that the amounts of money needed to fund terrorism are very small, implicates that funding is only a secondary issue in fighting terror, since the terrorists will always be able to afford their homemade rockets and bombs. This reflects a radical misunderstanding of how terrorism works.

Global terror is very big, very organized, and able to hide behind the obscurities of international law, the protective veil of rogue states, and the support of whole parts of the world where their acts were seen as righteous and godly. The terrorists, it often seemed, are too dedicated to their cause, too cut off from the world of Western courts and judgments, and their attacks too much a low-budget affair, to be really hindered by lawsuits. 

According to The Israeli Security Services (Shin Bet), the standard profile of a suicide bomber, for instance, is not someone suffering from mental illness. Rather, he’s gone through a long process of conditioning, with terror funding playing a decisive role at every turn: From his foreign-funded elementary school, where he was taught to idolize the shaheed, the martyr who kills as many civilians as possible on his road to Heaven; to youth programs, sports camps, and health clinics—all of which bought his loyalty to the cause and convinced him that the terrorists treat their people far better than official government institutions—to massive internal PR efforts, like posters and trading cards promoting past suicide bombers. Finally, after he’s been filled with visions of martyrdom from his childhood, he is offered the chance of a lifetime: He can both become a shaheed and solve his family’s financial woes for the rest of their lives by blowing himself up. Therefore, while an explosive vest or car bomb might not cost all that much, the creation of a suicide bomber is a long and expensive process.

Money makes terrorism go round—and dealing with money takes up the largest part the terror leaders’ time and energy. Yet, since this is their most important pre-occupation, it’s also their greatest vulnerability. The vast majority of terror funds are held, transferred, and switched into usable currencies (dollars and euros) either through established money changers or international banks—both of which have long been under the watchful eyes of law enforcement agencies around the world in their efforts to fight drug trafficking and organized crime. If these were to be brought under heel, a large part of the machinery of terrorism would grind to a halt. 

It was not so long ago that the idea of fighting terrorists through lawsuits was seen by most Westerners as ridiculous, like trying to put out a brushfire by spitting on it. Global terror is enormous, very organized, and able to hide behind the obscurities of international law, the protective veil of rogue states, and the support of whole parts of the world where their acts were seen as righteous and godly. The terrorists, it often seemed, were too dedicated to their cause, too cut off from the world of Western courts and judgments, and their attacks too much a low-budget affair, to be really hindered by lawsuits. 

But things have changed over the last decade, and now one regularly hear about massive court judgments against states like Iran and North Korea, about big banks like Lloyd’s and Barclay’s shutting down accounts of suspicious charities because of “exposure” to “liability”, about terror organization not being able to use the banking system any more. Fearing lawsuits, terror sponsors like Iran have pulled billions of dollars out of the US and Europe, and are having a much harder time finding banks willing to convert their money into dollars and euros—hard currencies the terrorists desperately need to build their bases and buy their weapons. Boxed out by the banks, terrorists have had to resort to ever more risky methods of transferring ever smaller amounts of cash—such as in suitcases or through underground tunnels. Yet even then, terrorists have often found their money corralled by Western courts. After decades of building their networks around the world, terror financing has today swung into heavy retreat, in large part due to a sweeping dragnet of ever-more-creative creative international lawsuits.

Did Lindsay Lohan Violate Her Probation with Hit and Run Arrest? Featuring Judge Eugene Hyman

Lindsay Lohan has found herself in trouble again.  This time, the scene was set in New York City and she was the star in her very own hit and run accident.  After hitting an employee of a restaurant on the driveway shared by the restaurant and her residence and leaving the scene, the question of her probation comes up and whether or not she is in violation of her probation.Source: www.philly.com

When you’re on formal probation, there is no official mechanism to get you back in front of the court when you’re in violation and historically, nothing happens unless the person picks up a new offense while on court probation, according to retired Superior Court Judge of Santa Clara, California Eugene Hyman.

To be convicted of a hit and run, a person needs to have reasonably known they were involved in an accident and according to the press Judge Hyman has read, Lohan claims she didn’t know she hit someone.  In terms of violation of probation, the standard of proof is a preponderance of more than 51%.  Judge Hyman says that it is very common when a case is more difficult to prove beyond a reasonable doubt standard to bring it in as a violation of probation because it is heard in front of judge, not a jury, thereby lowering the burden of proof.

Judge Hyman does not believe that a judge in California will get “excited” about this case, based on what he’s read in the press, especially when no drugs or alcohol have been involved.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.