How Bar Association Membership Can Help Law Students Ignite Their Professional Passion By Daniel K. Wiig [1]

 

Recently, a well-known and long-standing media personality came up in conversation with a friend. “Why is she still working?” asked the friend, who further noted the personality’s long tenure in broadcasting and likely wealth accumulation.  “She doesn’t need to work anymore”, concluded the comment.

“Well, I don’t think she really is working”, responded me.

That does seem to be the golden egg for our professional lives: to find that which engages the inner passion, so the manner in which one earns a living is not listless and consumed with an ever-pining for the weekend, but rather filed with the joy and enthusiasm of a child entering an amusement park.

Finding that joy seems to evade the majority of professionals.  In order to avoid falling into this pool, law students should make it a mission to find what stirs the soul early in their law school career so to pave the path for a rewarding and fulfilling career. To be sure, for some, finding this is achieved by simply pursuing what comes naturally without much forethought.  Enjoying a good debate or arguing for a cause may organically lead to a career as litigator.  Those who relish in managing projects may be drawn to a career as a corporate lawyer.  But how do you drill deeper? In what areas should you litigate? Personal Injury?  Employment matters? And what projects should you put together? The next great technology merger or luxury golf course?

There are many options available for students willing to fan the flames to ignite their professional passion.  To be sure, upper-level elective courses, internships, externships, clinics, and part time jobs all can aide students in this pursuit.  But an invaluable asset in a student’s arsenal to help navigate the legal profession and find that fervor is membership in a bar association.

Joining a committee can help students become engaged in the issues currently affecting a particular practice area.  In so doing, a student can ascertain if they wish to spend the life of a career concerned with said subject matter.   Moreover, joining a committee often serves as the catalyst for forming career-long professional relationships, even friendships, with fellow committee members.  Consequently, these new-found friends and acquaintances can provide an insider’s view on the realities of practicing within a given area.

Programming is also useful.  Of particular interest here are the myriad of programs designed to expose students and attorneys to specific practice areas and those that address discrete issues within certain areas.  Here, students can hear from leaders in a given field, and ascertain whether they wish to spend the next 40 plus years dealing with these and similar issues germane to the subject area.

Finally, networking programs should not be discounted.  While usually associated with socializing, networking events can be the catalyst for those with common bonds, such as membership in a bar association, to form professional alliances.  And, as with the relationships formed through committee engagement, such alliances can blossom into one of mentor-mentee, with the student gaining valuable insight into a practice area.

Bar Associations provide numerous opportunities for law students, not only during the embryonic stages of their careers, but throughout its entire trajectory.  Students should take advantage of all that membership has to offer to help forge a meaningful and satisfactory career in the law.

 

 

 

[1] Daniel K. Wiig is In-House Counsel to Municipal Credit Union, where he is involved in the day-to-day management of the legal affairs of the $2 billion + financial institution.   Dan is also an Adjunct Law Professor at St. John’s University School of Law.  He presently serves as a Director of the NYCLA Foundation.

NYCLA’s Center for Corporate Governance

NYCLA’s Center for Corporate Governance is dedicated to educating legal practitioners, their clients and others with an interest in corporate governance, in the best practices for corporations, their officers and in particular, their boards. Greg Markel, Partner, Seyfarth Shaw LLP,  and Chairman of NYCLA’s Center for Corporate Governance has been planning educational programs to advance the Center’s objective, including a program on Special Board Committees held in January at the Yale Club and co-sponsored by The Deal. As an outgrowth of the preparation for the program, Greg Markel and Heather E. Murray, Associate, Seyfarth Shaw LLP,   wrote an article on Internal Investigations: Special Board Committees, published in the June/July 2017 issue of Practical Law. The article discusses how companies often form special committees to conduct independent internal investigations into potential misconduct and explains key issues, including preserving independence and maintaining privilege. The article further examines best practices to help companies and their counsel to avoid the pitfalls that threaten the effectiveness of these committee-run investigations.

To learn more about NYCLA’s Center for Corporate Governance and to read the full article, click here.

headshot_GregMarkel

For more information please contact Greg Markel, Partner, Seyfarth Shaw LLP, and Chairman of the Center for Corporate Governance at the New York County Lawyers Association.

Mr. Markel can be reached at gmarkel@seyfarth.com.

NYCLA Presidential Induction Speech by Michael J. McNamara

Before I begin my remarks, there are a number of people that I want to recognize and thank. First of all, thank you Michael for that overly generous introduction. In my experience, the key to success is keeping expectations very low, but I am genuinely grateful for the kind words and the confidence you expressed in me and I hope I can live up to the high bar you have set tonight. Thank you also to my beautiful children, Chris and Megan, for their moving and amusing words. I didn’t know in advance what you were going to say and I must confess I’m somewhat overwhelmed. I want you to know I could not be prouder of both of you and I am so grateful to be able to show everyone here what wonderful children your mom and I, okay mostly your mom, raised. On that note, I also want to thank my wife, Maryellen, who did nothing short of transform my life over the last 35 years, raising our children while pursuing her own career as a marketing professor at Nassau Community College, sometimes with one of them tucked under her arm (they were a lot smaller then), never missing a beat and always being patient, kind and supportive. And I would like to mention my mother and father, who are still with us but not able to be here tonight. I would not be standing here without the love, support and encouragement they gave me and they would be overjoyed to see their grandchildren here tonight.  And I want to acknowledge my son-in-law, Owen Barbour, who is here tonight and Jessica Herlihy, my son’s girlfriend, who is also here, and thank them for coming.

I also want to welcome our distinguished guests, including the many judges who are here tonight, as well as the President of the State Bar, Claire Gutekunst, the President-Elect of State Bar, Sharon Stern Gerstman and the Treasurer, Scott Karson, our Past Presidents, Board members and leaders of all the other bar associations who are here tonight. You honor me and NYCLA with your presence and I am grateful. Congratulations to the Officers who were elected tonight. Steve Lessard, Vince Chang, Asha Smith, Adrienne Koch, NYCLA is fortunate to have such an outstanding group of leaders. And congratulations to our new board members.

I also want to welcome all of my friends who are here tonight, including a contingent from Seward & Kissel, my professional home for the past 29 years. They include many of my litigation partners and associates, Jim Cofer, our Managing Partner, Kal Das, who’s been my partner for almost 24 years and the incomparable Mary Nielsen who has been putting up with me and keeping me on track for more than 15 years. I also want to acknowledge the Firm’s generosity in underwriting the costs of tonight’s reception which follows this meeting.

I want to especially note the presence of  the long-time chairman of Seward & Kissel, Gene Souther, who was the 43rd President of this Association. Gene was the President of NYCLA when I joined the firm in 1988 and he actively encouraged my involvement with the Federal Courts Committee, my home Committee, first as a member of the Committee and later as its Chair and he encouraged me over the years to get involved in leadership of the organization.  For that, and so much more, I am very grateful to him and so happy that he is with us tonight.

Finally, I want to thank Carol Sigmond for the lovely hammer and moving van she presented me with earlier this evening. To be honest, I was sort of hoping for a sports car. But I want to also thank her publicly for her hard work and dedication to this organization. And I have a few parting gifts for her as well, a framed certificate of appreciation, an Albany cap and coffee mug and some snacks which she can take with her as she embarks on her next journey in Albany as a member of the State Bar EC. Please join me in a round of applause for Carol.

Remarks

Turning to my remarks, I want to say at the outset that I am humbled to become the leader of an organization that counts among its Past Presidents legal titans such as William Nelson Cromwell of Sullivan & Cromwell and Charles Evans Hughes, who was also Governor of the State of New York, Secretary of State of the United States, an Associate Justice and later Chief Justice of the United States Supreme Court, President of State Bar and the ABA, to name but two of our great leaders. We are truly standing on the shoulders of giants. I am also very proud to become the President of the first bar association in New York and one of the first in the United States to welcome all lawyers regardless of gender, race, ethnicity or religion. And I feel fortunate to become the President of NYCLA at a time when there is so much going on at the Association and in our society.

I’m going to divide my remarks this evening in two parts: first I want to share my perspective on the process that is underway regarding the building and how that fits with some of the other things we are doing at NYCLA to engage our membership. And then I’d like to comment briefly on some of the things we plan to do to further our mission to improve access to justice and promote confidence in the justice system. And I promise to be brief.

The Home of Law: Process and Membership Engagement

In preparing these remarks and really over the past year or more, I have thought quite a bit about this grand building, its history and about the past leaders of this Association who worked so hard to establish the Home of Law here at 14 Vesey Street. This building was the dream of William Nelson Cromwell, who found the location, made a substantial donation for the purchase of the property, and selected the architect, Cass Gilbert, who also designed the U.S. Supreme Court.

On the day the building was dedicated — May 26, 1930, 87 years ago tomorrow — Benjamin Cardozo, the renowned Chief Judge of the New York Court of Appeals delivered the principal address. It is a building that houses a library that Thurgood Marshall worked in as a young lawyer in the 1940s, a building that is across the street from the chapel where George Washington prayed on the day he was inaugurated as the first President of the United States. There is extraordinary history here, all you need to do is look around this room, and the attachment that so many members feel to the building is completely understandable, indeed commendable. It was the perfect building for lawyers in the 20th Century and I have no doubt that the building contributed significantly to this Association’s great stature and attracted many members. And I understand that even the thought of change is difficult and we do not consider it lightly. As Carol indicated earlier, we are beginning to investigate our options with respect to the building. I think it is important to note in very clear terms, we are at the beginning of this process, these are early days. At this point, there is a great deal we simply don’t know. And so we have made no decisions at this point other than to engage in a process to see what options the organization might have. And while there is a lot we don’t know, there are some things we do know.

We know that the world that our members practice in today is very different than the one that existed in 1930 when this building was dedicated or even when I began practicing law in 1983. Technology has completely changed the way lawyers work, where they work, how they communicate and the tools they need to succeed. Much of our work and interaction today is virtual, the need for physical space has decreased and at the same time the demand for flexible space with state of the art technology has increased. And that trend will continue and likely accelerate.

We know that there is a very substantial and escalating cost to operating the building, both in terms of money and time. And we know that we have a new generation of lawyers, millennials like Chris and Megan and their contemporaries, many with different ideas about their careers and their lives and about the value of bar membership.

So in the event that we discover we do have options — and I hope we will — we have to keep in mind, first and foremost, that we are a membership organization and every decision we make has to take into account the interests of our members. Without members, it doesn’t matter very much where our home is or even if we have a home. So the question we must ask (and I’m confident the question Cromwell would ask) is not should we stay or should we go, but what is in the best interests of our members today and in the future? Simply put, how do we improve the lives of our members? And so we will pursue the process and it may be that we will conclude that NYCLA’s future would be better served with a moving van, or we may find we need this hammer and some more tools.

Two final points on the building.

First, having been involved for over a year in discussions about the building, having been part of the process that we engaged in with our architects to envision what an optimal space would look like for our organization, and having some understanding of the transformation the San Diego County Bar Association was able to achieve when it recently moved to a new home, depending on how this plays out we may have an opportunity to relocate to a new state of the art 21st Century home that would effectively allow us to re-launch our Association, that would serve as an incredible resource for our current and future members and that would help ensure that this great bar association will continue to thrive for many more years.

Second, we do not intend to become a purely virtual organization, whatever we ultimately decide, NYCLA will continue to have a significant physical home — a place where our members, members of other Associations and the public can come and meet — like tonight to celebrate, a place where lawyers come every day, to learn, to meet with other lawyers, to charge their phones or get a cup of coffee in the lounge, whether it is in this building or somewhere else, and it will continue to be a place that is welcoming to all lawyers.

So please stay tuned.  We are at the beginning of an interesting chapter, we will update you on our progress as we move along and we are interested in hearing from you as well.

One other point on membership:  We are going to be doing a lot more than just focus on space issues. Cromwell believed that every lawyer should belong to a bar association.  I agree but the reality is that we need to work hard to demonstrate the value proposition to existing and potential members. Our new Co-Chairs of the Membership Committee, Pam Gallagher and my partner, Jack Yoskowitz, will be working with our Director of Membership, Toni Valenti, on initiatives and projects to do just that. There are a number of different ways we will be engaging our members and prospective members, including through our  new website, but one of the things that I have asked them to keep in mind which I think is very important and underrated is the social aspect, having fun events and happy members. A point, by the way, that has been made to me emphatically by my own millennial lawyers.

Over the past few years we have held some terrific events here at NYCLA. In addition to the musical tributes and operetta that my friend Marti Stine highlighted earlier, we also had a great casino night in this hall. Those were some of my favorite bar association nights and I hope we will have many more like that in the coming year. And I hope to see many of you at those events.

Justice Center 2.0

As I embark on the leadership of this great organization, I am acutely aware that our communities and Courts are also facing many challenges. At NYCLA, we do a lot, we have outstanding programming and events, we sponsor terrific pro bono programs and we have Task Forces that are tackling important issues. But in view of the “interesting times” in which we live, we can and need to do more, so we are also relaunching our Justice Center.

Originally founded in 2003, the Justice Center was intended as a bridge between NYCLA and community leaders and organizations to help identify important social justice issues and collaborate to find solutions. One of the premises was that lawyer-citizen partnerships would lead to increased citizen understanding of the justice system and result in meaningful improvements and increased confidence in the justice system. And the Justice Center was instrumental in a number of very successful programs and initiatives but it lost a bit of its momentum in recent years.

With the current crisis in confidence and challenges our communities are facing, there has never been a more important time for a revitalized Justice Center that can act as a catalyst and a think tank for additional programs and initiatives. Over the past several months I have been working with Jim Kobak and Kevin McKay, the leaders of the Justice Center, to identify some new Advisory Board members and worthy endeavors for the Justice Center. Very pleased to report we have made excellent progress and that Justice Center 2.0 will be kicking off this fall with several new enthusiastic Advisory Board members, lawyers and non-lawyers, some of whom I see here tonight, and a renewed focus on some very timely issues, including (1) civic education, (2) racial justice, and (3) access to justice, including immigration issues, which loom large in our city and nation these days. I am very confident that a year from now I will be reporting to you on the great work Jim, Kevin and the Advisory Board have been doing at Justice Center 2.0.

NYCLA’s Relationship with the Courts

Before I conclude, I want to mention briefly NYCLA’s relationship with the bench and the organized bar. NYCLA has always had a special relationship with the federal and state courts . We have worked cooperatively with the leaders of our Courts to identify issues of concern and propose effective solutions. We have spoken out when “so-called judges” have been unfairly attacked.  We have also spoken when budget cuts threatened the operations of the Courts and the interests of the public. That role is very important to us at NYCLA and it will continue.

In the coming weeks, I will be reaching out to and meeting with court leaders to talk about the things we are doing at NYCLA and to see how we can be of further service to them.

NYCLA’s Relationship with Other Bar Associations

I also believe that there are numerous opportunities for us to work collaboratively with our sister bar associations and, where appropriate, use our collective voice to speak out on important issues. We live in a time when the collective voice of the organized bar has never been more important. I am very grateful that so many bar leaders have taken time out of their busy schedules to be with us tonight. As we go forward, we will seek out additional opportunities to collaborate with you and work to deepen our ties and further strengthen the organized bar in New York.

Before closing, I have one final thank you, to the exceptional Staff at NYCLA. It is truly remarkable what we accomplish day in and day out, year after year at this organization with very lean staff and sometimes under very difficult conditions. Please join me in a round of applause for our outstanding Executive Director, Sophia Gianacoplos, the leadership team, Bari Chase, Lois Davis, Dan Jordan, Toni Valenti and Anthe Vorkas, and their support staff.

Thank you all very much for being here tonight in the rain and please join us across the hall for the reception.

NYCLA Education Law Committee Comments on the New York City Department of Education Discipline Code

On January 25, 2017, the New York City Department of Education held a public hearing to accept comments on this year’s Discipline Code before the proposed changes are adopted later this year.  While advocates consider many of the amendments to be a step in the right direction, there is still considerably more the Code could do to cut down on suspensions, address racial disparities, and foster a positive school climate.

While the Code seeks to reduce suspensions for students in Kindergarten through second grade, except in cases of behavior that is violent, could cause serious harm, or violates the Gun-Free Schools Act, it does not eliminate the possibility of suspension entirely for these young students, as proposed by the Mayor’s Leadership Team on School Climate and Discipline last July.  Research has shown that suspending children at young ages can have a lasting negative impact on their academic success by depriving them of critical learning time in the classroom while failing to help them understand and manage their behavior in school.  Other states, such as California, Connecticut, Oregon, and, beginning this fall, New Jersey, have already prohibited schools from suspending our youngest students and instead focused on appropriate positive interventions.

The Code also neglects to eliminate suspension as an option for certain subjective offenses in an effort to address the significant racial disparity in school discipline.  Black students are nearly four times more likely to be suspended than their white peers – primarily for minor, discretionary infractions, such as disobedience or insubordination, rather than actual violent behavior.  Infractions with vague language such as B-21 – “defying or disobeying the lawful authority or directive of school personnel or safety agents in a way that substantially disrupts the education process and/or poses a danger to the school community” – have been associated with high rates of disparity not only in New York City but nationwide.  Requiring principals to seek approval from the DOE’s Office of Safety and Youth Development before invoking a B-21 principal’s suspension is simply not enough.  Addressing this type of disobedient behavior is most appropriately done through alternatives to suspension – restorative practices, conflict resolution, peer mediation, etc.

In addition, the Code provides almost no clarity on the role of School Safety Officers in schools.  In particular, it ought to provide guidance on how officers should interact with students and when restraints should be used.  The Code should also discourage criminal court summonses for minor offenses and encourage efforts to ensure that students are not subject to unnecessary arrests.  Such amendments will prevent more students from entering the criminal justice system for non-violent behavior when they could instead remain in school and continue their education.

Finally, in 2015, the Code eliminated students’ rights to receive written notice of the reasons for disciplinary action taken against them in a timely fashion.  However, this important due process right should be added back into the Code.  It is crucial that students and parents be promptly informed in writing of the accusations against them so that they may have an opportunity to dispute the charges if they are inaccurate.  Timely written notice of a disciplinary action is an essential due process right, and it needs to be spelled out clearly in the Code.

The Discipline Code has certainly come a long way in the past several years, but it is essential that the DOE seriously consider advocates’ concerns and suggestions in order to create a more positive disciplinary policy for all students.

Divorce and Credit Card Debt

By Justine Borer, Esq. and Cheryl Stein, Esq.

As cash fades into the background, credit cards are becoming a dominant currency. The credit card industry is competitive. Credit card companies often offer incentives to use their credit cards, hoping that consumers will take the bait. Under federal law, for the protection of consumers, credit card companies must follow certain protocols, which define the terms under which credit is issued to individuals.  In turn, the form in which credit is issued to spouses can impact their responsibilities at divorce.

What is the significance of the Equal Credit Opportunity Act for people considering marriage or divorce?

The Equal Credit Opportunity Act, codified at 15 U.S.C. § 1691 et seq. (the “ECOA”), enacted in 1974, protects consumers who deal with companies that regularly extend credit, including banks, small loan and finance companies, retail and department stores, credit card companies, and credit unions.[i]  Parties who participate in the decision to grant credit and arrange financing must follow this law.

Before the ECOA, a woman often faced roadblocks when she tried to establish credit in her own name.[ii]  Under the ECOA, a creditor is prohibited from discriminating against an applicant on the basis of gender or marital status (among other things). In New York and other equitable distribution states, creditors may not inquire about marital status if an applicant is applying for separate, unsecured credit.  In community property states, creditors may ask about marital status even if an applicant is applying for separate, unsecured credit.  Across the board, regardless of whether a couple lives in a community property or equitable distribution state, creditors may make such inquiries if the credit is secured by property – such as a home mortgage – or if spouses are seeking joint credit.  Whether the credit is separate or joint, secured or unsecured, creditors may not discriminate on the basis of gender or marital status when deciding to extend credit.  In addition, the ECOA requires credit card issuers to provide a nondiscriminatory reason for denying credit and credit increases, singling out a particular creditor for negative changes in the terms of his credit, or refusing to extend credit under the same or approximately the same terms as were put forth when the application was made. The ECOA further prohibits creditors from disregarding spousal maintenance and child support as sources of income, and thus provides a safeguard for divorced women seeking credit.

Other regulations further circumscribed what the creditor could inquire about when vetting applicants. One such regulation concerned inquiries about household income. The result: a consumer was able to rely on the income of his or her spouse when applying for individual credit. This regulation paved the way for married women, whether working outside the home or not, to obtain credit in their own name.[iii]

Together with these regulations, the ECOA changed the landscape of credit card usage in the United States. In addition to leveling the playing field between marketer and consumer, the ECOA made some strides in leveling the playing field between men and women.  Following the passage of the ECOA, it was possible for single women to obtain their own credit cards and to buy condominiums and co-ops on their own.[iv]

What is the significance of the Credit Card Accountability Responsibility and Disclosure Act of 2009?

The Credit Card Accountability Responsibility and Disclosure Act of 2009 (the “CARD Act”) limits the breadth of the ECOA.  A provision of the CARD Act requires every credit card issuer to consider the consumer’s ability to make required payments under the terms of the account.  The CARD Act initially prohibited credit card issuers from considering household income.  This prohibition led to concerns that the CARD Act had important negative implications for non-working, divorced, or widowed women, as such women might have no access to their own credit, and thus might lack a credit history which could demonstrate creditworthiness.[v]

In 2013, the Consumer Financial Protection Bureau “updated existing regulations to make it easier for spouses or partners who do not work outside the home to qualify for credit cards…[by allowing] credit card issuers to consider income that a stay-at-home applicant, who is 21 or older, shares with a spouse or partner when evaluating the applicant for a new account or increased credit limit.”[vi]

What are the implications of divorce for credit card debt?

Liability for credit card debt at divorce depends on whether the divorce is filed in an equitable distribution or community property state, whether the debt is incurred on a jointly held credit card, and to whom the separation agreement assigns the debt.

In equitable distribution states, credit card debt incurred during a marriage is generally the joint responsibility of both parties, as long as both are co-signers on the credit card. (Note that in community property states, both spouses are generally responsible for debt incurred by one partner).[vii]

A spouse may need to take extra steps to protect him or herself when he or she holds debt on jointly held credit cards.  Credit card companies are not bound by divorce decrees, so they can pursue either spouse if credit card debt is not paid by the spouse who agreed to do so in a separation agreement.[viii] The contractually bound spouse may fail to pay for many reasons, including bankruptcy. When such failure occurs, credit card companies may legally pursue the other spouse for the debt (plus interest and penalties). Indemnification clauses in a separation can address this potentiality.  However, enforcement of the terms of an indemnification clause may require litigation. In some cases, the money spent on litigation may exceed the amount owed to the credit card company.  Further, trying to enforce such terms in an agreement can prolong litigation, as well as the hostility and contentiousness which often accompany it.

In New York State, what can a person do to protect himself or herself from credit card debt incurred by his or her spouse?

If a person is concerned about debt his or her spouse incurs, he or she may decline to open joint credit card accounts.  If a credit card account is in one spouse’s sole name, even if the other spouse is an additional cardholder, the other spouse is not liable for the debt.

 

 

 

[i] Credit applications – know my rights, MyFico, http://www.myfico.com/crediteducation/rights/creditapplicationrights.aspx (last visited Nov. 11, 2016).

[ii] NFCC Examines History of Women and Credit, National Foundation for Credit Counseling, https://www.nfcc.org/consumer-tools/consumer-tips/nfcc-examines-history-of-women-and-credit, (last visited Nov. 11, 2016).

[iii] Id.

[iv] Betsy Israel, Bachelor Girl: The Secret History of Single Women in the Twentieth Century 234 (2002).

[v] NFCC Examines History of Women and Credit, National Foundation for Credit Counseling, https://www.nfcc.org/consumer-tools/consumer-tips/nfcc-examines-history-of-women-and-credit, (last visited Nov. 11, 2016).

[vi] The CFPB Amends Card Act Rule to Make it Easier for Stay-at-Home Spouses and Partners to Get Credit Cards, CONSUMER FINANCIAL PROTECTION BUREAU (Apr. 29, 2013),  http://www.consumerfinance.gov/about-us/newsroom/the-cfpb-amends-card-act-rule-to-make-it-easier-for-stay-at-home-spouses-and-partners-to-get-credit-cards) (last visited Nov. 11, 2016).

[vii] Amy E. Buttell, Dividing credit card debt in divorce, CreditCards.com,  http://www.creditcards.com/credit-card-news/help/dividing-credit-card-debt-divorce-6000.php, (last visited Nov. 11, 2016).

[viii] Divorce Decrees – Protecting Your Credit, Joint Accounts, Financial Obligations, Credit Infocenter (Mar. 19, 2015), http://www.creditinfocenter.com/divorce/divorcedecrees.shtml, (last visited Nov. 11, 2016).

Out of the Closet and into the Schools: How the Department of Education Handles LGBT Issues.By NYCLA Education Law Committee

On September 27, 2016, NYCLA’s Education Law Committee hosted a panel discussion, “Out of the Closet and into the Schools: How the Department of Education Handles LGBT Issues.”  Council Member Daniel Dromm (Representative for District 25 and Chair of the Council’s Education Committee), Sebastian Maguire (Council Member Dromm’s Legislative Director), Mohamed Amin (Founder & ED, Caribbean Equality Project), and Colin Schumacher (Teacher at PS 364 the Earth School) served as panelists.  The discussion was an opportunity to analyze some of the challenges that LGBT youth face in New York City schools and the adequacy of the DOE’s response to the concerns of LGBT teachers, staff, and students.

The panelists spoke about the challenges LGBT youth face in coming out and the need for more safe spaces to offer support and community to these students.  They explained that while Gay-Straight Alliances, or GSAs, should be the rule, not the exception, across all of New York City’s public schools, the unfortunate reality is that even where there is interest among students, there often isn’t a staff member in the school community who feels equipped to serve as the group’s advisor, or sufficient funding to pay for that staff member’s time.  They emphasized the need for training and funding for school staff to ensure the creation of a more inclusive environment.

The speakers also discussed the DOE’s failure to adequately address bias-based bullying in schools, and the necessary steps needed to significantly improve school climate under the Dignity for All Students Act (DASA).  According to a recent survey of NYC students, only 22% attended a school with a comprehensive anti-bullying/harassment policy that included specific protections based on sexual orientation and/or gender identity/expression.  Additionally, many school staff members are under the mistaken impression that to make a DASA report will somehow reflect negatively on them or their school and fear consequences for making these reports.  The panelists clarified that educators or their schools will not suffer negatively because of their honesty, and encouraged the use of data collection as the first step to problem solving.

In addition to the need for support of LGBT students, the panelists also spoke about the same need for LGBT educators.  While these individuals are in the best positions to be proud out role models to LGBT youth, they often fear retaliation from supervisors or bigotry from parents and other members of school communities.  The speakers urged the Department of Education to make clear that this kind of discrimination and a culture of fear that closets LGBT teachers will not be tolerated.

Finally, the panelists examined the difficulty in changing school curriculums to place the civil rights struggles of the LGBT community on par with those of other minorities.  In a 2013-14 survey from GLSEN, students in NYC schools reported that they did not have LGBT-inclusive curricular resources, with only 30% being taught positive representations of LGBT people, history, and events, and nearly half (49%) could not access information about LGBT communities on school internet.  While many teachers do take steps to engage their students in meaningful social justice work that pays the same amount of attention to the civil rights struggles of the LGBT community, others may hesitate to deviate sharply from the mandates of supervisors who insist they stick closely to state standards.  The discussion emphasized the importance of expanding culturally responsive curriculums to include not just race and ethnicity but also sexual and gender identity.

Using this panel discussion as a guide, NYCLA’s Education Law Committee submitted written testimony at a public hearing hosted by the NYC Council’s Committee on Education on October 19, 2016.  The hearing centered on bullying, harassment, and discrimination in NYC schools, with a particular focus on protecting LGBT and other vulnerable students.  The Committee’s testimony affirmed the need for more than just access to a gender-neutral bathroom for LGBT adolescents, and encouraged the creation of supportive, inclusive communities that not only condemn bullying and harassment but also recognize and teach students about the LGBT community and its important contributions to society.  The Committee hopes that continued attention to these issues, with help from advocates like Council Member Dromm, will bring about important policy changes to make NYC’s schools safe and supportive spaces for all students.

Employer Social Media Practices/Policies and the NLRA

In recent years, as the use of social media has exploded, the National Labor Relations Board (“NLRB”) has received allegations of improper discipline of employees for social media postings as well as complaints condemning employer social networking policies. We briefly discuss a few of those decisions below.

In what came to be known as “the first Facebook case,” American Medical Response of Connecticut, Inc., No. 34-CA-12576, an employee criticized her supervisor in a Facebook post for denying her Union representation, which triggered responses from co-workers voicing their support. The employee was suspended the following day and later discharged. The NLRB alleged in a complaint that the employer’s internet and social media policies were overly broad and violated Section 7 of the National Labor Relations Act (the “NLRA” or “Act”), which gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB’s complaint also alleged that the employee was unlawfully terminated for engaging in protected concerted activity when she posted on Facebook. The NLRB stressed that employees must be permitted to discuss the terms and conditions of their employment with co-workers. The NLRB asserted that the employer violated the NLRA when it discharged the employee for posting comments on Facebook that prompted support from other employees. The case settled when the employer agreed to substantially narrow the scope of its social media policies.

The NLRB addressed whether an employee could be fired for selecting the “like” option on a Facebook post in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. The NLRB found that the employer, a bar and restaurant, violated Section 8(a)(1) of the NLRA by unlawfully discharging two employees for their protected, concerted participation in a Facebook discussion in which they criticized perceived errors in their employer’s tax withholding calculations because such communications constituted concerted activities protected by the NLRA.

One of the discharged employees was terminated for “liking” a Facebook post by a former employee containing the discussion. Another employee used an expletive to describe the company co-owner. In finding the terminations unlawful, the NLRB stated that the test set out in Atlantic Steel, 245 NLRB 814, by which the Board determines whether an employee loses the Act’s protection for contemptuous workplace conduct that occurs during an otherwise protected activity, is not well-suited to address statements involving employees’ off-duty, off-site use of social media to communicate with other employees. Under theAtlantic Steel test, the Board balances the following four factors to determine whether an employee loses the Act’s protection:

  1. the place of the discussion;
    2. the subject matter of the discussion;
    3. the nature of the employee’s outburst; and
    4. whether the outburst was provoked by the employer’s unfair labor practices.

The Board stated that the first factor alone supported its conclusion that the Atlantic Steel framework should not be applied to the type of employee activities in this case.

Instead, the NLRB applied the tests articulated by the U.S. Supreme Court in the Jefferson Standard (346 U.S. 464(1953)) and Linn (383 U.S. 53 (1966)) cases to the employees’ comments. In Jefferson Standard, the Court had upheld the discharge of employees who publicly attacked the quality of their employer’s product and practices without tying such criticisms to a pending labor controversy. In Linn, the Court had limited state law remedies for defamation during a union-organizing campaign to those situations where the plaintiff could show that “the defamatory statements were circulated with malice” and caused damage. Linn v. Plant Guards Local, 383 U.S. at 64-65. Here, the NLRB concluded that the employees’ statements were neither disloyal nor defamatory under those standards because they neither disparaged the employer’s products or services or undermined its reputation and therefore did not lose the Act’s protection.

The Board also held that the company’s internet/blogging policy, which stated that “engaging in inappropriate discussions about the company, management, and/or co-workers” might constitute a violation of the law “and is subject to disciplinary action, up to and including termination of employment,” was overly broad and unlawfully restricted employees in the exercise of their rights under the Act.

The NLRB has also found that employees can lose protection under the NLRA if their conduct advocates insubordination. In Richmond District Neighborhood Center, 361 NLRB No. 74, the NLRB held that employees who engaged in specific discussions of planned insubordination on Facebook lost the protection they otherwise would have enjoyed under the NLRA. After two employees detailed their plans to disrupt the workplace and flaunted their disregard for their employer’s policies and procedures on Facebook, the discussions were reported by a co-worker who took screenshots of their exchange. Although the NLRB found the employees’ Facebook posts to be a concerted activity, the Board concluded that the employees had lost the protection of the NLRA since their statements advocated insubordination. The NLRB also considered the protracted length of the exchange between the employees and the detailed nature of the specific acts they advocated when determining that their statements had lost protection.

richard friedman picRichard B. Friedman is the managing partner of the five lawyer employment litigation and counseling and business litigation firm Richard Friedman PLLC.  Rich and his colleagues handle the following kinds of matters:

  • Counseling, drafting, and negotiating on behalf of senior and mid-level executives in connection with employment, severance, and consulting agreements;
  • Preparation of employee handbooks, codes of conduct, and social media policies on behalf of employers;
  • Employment litigation on behalf of employers and individuals aligned with employers;
  • FINRA arbitrations on behalf of finance personnel; and
  • A wide variety of business litigations, particularly in the New York County Commercial Division on whose Advisory Committee Rich and fifteen or so other judicially appointed practitioners serve with the nine judges of that court.

Rich has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors and the Task Force NYCLA in The 21st Century.

Mr. Friedman moderated How to Litigate  Non-competes and Other Disputes Over Restrictive Covenants on Tuesday, September 27, 2016; 6:00 PM – 8:00 PM.  This CLE was co-sponsored by NYCLA’s In-House and Outside Counsel Committee.  The faculty for this program included Katherine Blostein, Outten & Golden LLP; Jyotin Hamid, Debevoise & Plimpton LLP; Robert N. Holtzman, Kramer Levin Naftalis & Frankel LLP; David E. Schwartz, Skadden, Arps, Slate, Meagher & Flom LL.