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.
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.
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.
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:
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 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.
The NYCLA Civil Court Practice Section had its annual dinner on June 20, 2016 at the beautiful Battery Gardens Restaurant. Our honorees were the Honorable Anthony Cannataro, Honorable Ellen Gesmer, and Civil Court employees, Peter Di Genova and Che Che Solivan.
The New York City Civil Court is a special place. The Civil Court Practice Section seeks to recognize those individuals whose hard work and valuable services help make the Civil Court the unique and wonderful institution that it is. The Section also seeks to educate lawyers and the public about the Civil Court and offers practical advice about how to achieve fair and just results for the thousands of litigants who have cases there.
Over the past year, the Section has heard from several fine speakers who have recounted the important work performed in the Civil Court, including practitioners, judges, and our county clerk. We have worked on projects designed to help attorneys and litigants understand the role and purposes of Civil Court, as well as get a better understanding of how to navigate through its many technical and complex proceedings.
Our honorees reflect the ideals and work ethic of our Section. Judge Cannataro is the Supervising Judge of the New York County Civil Court and has helped initiate many important improvements to the functioning of the Court. Justice Ellen Gesmer has risen from a respected Civil Court judge to the Appellate Division. Serena Springle, the Chief Clerk of New York County Civil Court, accepted the Melvin C. Levine Distinguished Service Award on behalf of court employees, Che Che Solivan, an Associate Court Clerk assigned to the Housing Division who has been working in the courts since July 1994 and Peter DiGenova, a Senior Court Clerk assigned to the Civil Division who has been working in the courts since November 1992. Additional speakers included the Honorable Fern Fisher, the Honorable John J. Kelley (Co-Chair of the Civil Court Practice Section) and NYCLA President, Carol Sigmond, Esq.
The Co-Chairs of the successful dinner were Suzanne Adams, who also serves as a Co-Chair of the Section, and Nicholas Moyne. The weather was perfect and a good time was had by all! We look forward to your participation in next year’s dinner. Until then, please join our committees, as they are an essential part of the NYCLA experience.
Many employers try to limit former employees’ actions at the conclusion of the employment relationship through restrictive covenants. A restrictive covenant is a contractual agreement restricting the post-employment activities of a former employee for a fixed period after the termination of an employment relationship in order to protect the employer’s legitimate business interests.
A. Protectable Interests
Non-compete agreements offer the widest range of protection for employers by limiting a prior employee’s ability to work for a competitor after the employment relationship ends. However, this type of restrictive covenant is often the most difficult to enforce and is generally disfavored in New York. New York courts will enforce non-compete provisions only to the extent necessary to protect an employer’s legitimate interests and where they are reasonable in time and geographic area. Such courts consider the protection of the following kinds of information to be legitimate protectable interests:
1) trade secrets;
2) confidential customer relationships; and
3) confidential customer information.
For example, in Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 71 (2d Cir. 1999), the court noted that an employer has sufficient interest in retaining its current customers to support a covenant not to compete where the employee’s relationship with the customers is such that there is a substantial risk that the employee may be able to divert all or part of the business.
B. Temporal and Geographic Restrictions
New York courts have repeatedly held that temporal restrictions of six months or less are reasonable. See Ticor Title Ins. Co. v. Cohen, 173 F.3d at 70 (2d Cir. 1999); Natsource LLC, 151 F.Supp.2d at 470-71 (three-month non-compete). However, courts have also enforced non-competes of three years or more, usually where geography is limited. In Novendstern v. Mount Kisco Med. Grp., 177 A.D.2d 623, 576 N.Y.S.2d 329 (1991), the court found that a covenant restricting a physician from competing with his previous employer was enforceable because the prohibition on the physician’s practicing in his specialties for three years was in a limited geographic area.
To determine whether a non-compete provision is reasonable in geographic scope, courts in New York examine the particular facts and circumstances of each case. For example, in Natsource LLC v. Paribello, 151 F.Supp.2d 465, 471-72 (S.D.N.Y.2001), the court was willing to enforce very broad geographic restrictions on employees where the “nature of the business requires that the restriction be unlimited in geographic scope,” so long as the duration of those restrictions was short. (Emphasis added). However, in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489 (S.D.N.Y. 2011), the court held that the non-compete provision in a fitness center operator’s employment agreement with prior employees, which prohibited employees from working at a competitor center anywhere in world for ten years following employment at center, was unenforceable since it was unreasonable in terms of duration and geographic scope.
New York courts have also examined whether there was sufficient consideration, whether the agreement was incidental to the sale of a business, and whether an employee was preparing to compete to determine if a non-compete was reasonable. Such courts have found that future employment constitutes sufficient consideration to support a covenant not to compete.See Poller v. BioScrip, Inc., 974 F. Supp. 2d 204 (S.D.N.Y. 2013) (holding that “the fact that a restrictive covenant agreement is a condition of future employment does not automatically render such an agreement coercive and unenforceable”). Similarly, in Ikon Office Solutions v. Leichtnam, 2003 U.S. Dist. LEXIS 1469, *1, 2003 WL 251954 (W.D.N.Y. Jan. 3, 2003), the court found that the non-compete covenant was enforceable because the employee was an at-will employee who received continued employment as consideration. Moreover, financial benefits and an employee’s receipt of intangibles such as knowledge, skill, or professional status, are also sufficient consideration to support a non-compete provision under New York law. See Arthur Young & Co. v. Galasso, 142 Misc. 2d 738, 741 (Sup. Ct. N.Y. County 1989).
D. Selling a Business and Preparing to Compete
New York courts are most likely to enforce non-compete agreements that are incidental to the sale of business. See Mohawk Maint. Co. v. Kessler, 52 N.Y.2d 276 (1981) (stating that courts give covenants not to compete made in connection with the sale of a business and its accompanying goodwill “full effect when they are not unduly burdensome”).
New York courts have held that an employee preparing to compete violates a non-compete provision where affirmative steps have been taken that would give the individual a head start on competing once the restricted period ends. For example, in World Auto Parts, Inc. v. Labenski, 217 A.D.2d 940 (4th Dep’t 1995), the court found that conduct such as making personal loans to the principal owners of competitors and divulging to competitors price information acquired while working with the former employer constituted preparatory behavior that violated the non-compete agreement. However, in some instances, employees may prepare to compete prior to their departure provided that they do not use their employers’ time, facilities or proprietary secrets to do so. See Stork H & E Turbo Blading, Inc. v. Berry, 932 N.Y.S.2d 763 (2011).
Richard Friedman is a former AMLAW 100 employment and business litigation partner and an experienced trial lawyer. He counsels employers on all kinds of employment-related matters and assists them and individuals aligned with employers in litigation through his five lawyer firm, Richard Friedman PLLC. Mr. Friedman also assists senior and mid-level executives with employment, severance, and consulting agreements and represents well compensated employees in FINRA arbitrations. Mr. Friedman 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. Mr. Friedman can be reached at rfriedman@RichardFriedmanlaw.com. His complete biography is available at www.richardfriedmanlaw.com.
As president of NYCLA, I have been invited to say a few words about the committee and Stewart Aaron, the 58th President of NYCLA, the 2016 David Hinshaw Award winner.
From the time that Stewart first joined the Federal Courts Committee, he was core contributor, rising to committee chair.
The Federal Courts Committee has traditionally been an active and important committee at NYCLA, commenting on the Federal Rules of Procedure, hosting monthly dinners for the bar to meet and talk with federal judges from both the southern and eastern district and supporting court initiatives including the Loretta Preska Security Pavilion.
In 2008, Stewart became the Vice President of NYCLA. He worked hard during his time on the ladder. In May 2010, Stewart became the 58th president of NYCLA. He was an outstanding president, active on a policy and administrative front, advancing what is today the Loretta Preska security pavilion, the crisis of court budget cuts, gun control and judicial retirement age, to name but a few. Stewart brought social media to NYCLA.
It is a testament to Stewart’s presidency, that now, some 5 years later, he is beginning his 9th year of continuous service on NYCLA’s Executive Committee, having been invited to serve on that committee by the last 3 presidents, including me.
I cannot speak for my two immediate predeccessors but I will say for my self, that I value Stewart’s judgment, knowledge of the bar world, his knowledge of the administrative side of the law business and his ability as a lawyer. Stewart has provided solid advice on a variety of subjects, including most remarkably, the need to tweet about NYCLA events, which I have learned to do, fat fingers and all.
I cannot imagine anyone more deserving of recognition from his peers for his many contributions than Stewart Aaron.