The Beat of New York Law Cyberbullying and the … · Apogee Publications. 6528 Greenleaf Avenue, Ste. 219 Whittier, CA 90601 ... place rights and impose obligations on both the disabled

By Jennifer S. Yoon, Esq.

Mayor Bill de Blasio has only been in office for less than a year, and already the tremors of his legislation are being felt, rippling throughout the City for busi-ness owners. On April 1, 2014, legisla-tion requiring private sector employees with five or more employees to provide paid sick leave came into law. Under the amended law, certain employees must allow sick paid leave for employees to care for themselves, or a family member.

What is the New Law? New York City Earned Sick Time Act,

also known as Paid Sick Leave Law, has been amended to require certain private sector employers to provide paid sick leave for eligible employees. Under the law, employees are able to accrue one hour of sick leave for every 30 hours worked, up to a maximum of 40 hours per calendar year. Employees may carry over up to 40 hours of unused sick time, however, with provi-sions that an employer may choose to pay for unused sick days at the end of the year.

Among other conditions, an employee

may use sick leave when they have a men-tal or physical illness or require preventive medical care. These conditions are similar for employers who use their sick days to take care of family members.

With a medical condition, the employer can require documentation from a licensed health care provider if the employee uses more than three consecutive workdays as sick leave. However, employees are pro-tected to a certain extent in that the law prohibits employers from requiring the health care provider to specify the medical reason for sick leave.

Importantly, the Act contains prohibi-tions on employers threatening, firing, dis-ciplining, or reducing an employee’s hours for requesting or using sick time.

For the purposes of enforcement, the Act

does not authorize employees to bring a court action to enforce their rights. Instead, any employee who has a complaint or claims to have been denied sick leave must seek relief through the DCA (Department of Consumer Affairs) Employers may be fined or punished with civil penalties, rang-ing from $500 to $1,000.

Furthermore, employers must now notify employees in writing regarding their rights to sick time, including the accrual and use of the new provisions. The Notice of the Act’s provisions must be given to new hires employed after April 1, 2014 on their first day of employment.

Who Must Provide?Employers with five or more employees

who work more than 80 hours per year must provide sick leave. Smaller employ-ers will be required to provide unpaid, but job-protected sick leave.

Who Is Eligible?Employees who work more than 80 hours

or more per year for their employer are eligible. The law now covers full-time and part-time employees, transitional jobs program employ-

COUNTY LAWYERNew York

Cyberbullying and the Workplace: Employers Beware

An Apple a Day, Keeps the Doctor and the DCA Away

Written by Jael Dumornay, Esq. and Jacob Tebele, Esq. Edited by Stephen McQuade, Esq.

“Cyberbullying” is a familiar term to anyone who has access to print, televised or internet based media. The news has been inundated with stories regarding cyberbullying and its tragic results. More-over, the concern about cyberbullying has become so great that local laws discourag-ing and criminalizing cyberbullying have been enacted. Notably, on June 5, 2014, the New York Court of Appeals heard oral argument in People v. Marquan M., which is a constitutional challenge to the County of Albany’s criminalization of certain forms of cyberbullying.

As New York’s highest court evaluates the legitimacy of a local law criminalizing cyberbullying, one must consider the role of cyberbullying in the workplace. Specifi-cally, this article will briefly address some key questions regarding cyberbullying in the workplace, such as: What is the likeli-hood of cyberbullying in the workplace? Could an employer be deemed liable for its employee’s cyberbullying? How can employers limit their exposure?

With a growing number of employers permitting access to social media at work, the probability of employees cyberbully-ing co-workers is increased, and employers need to be knowledgeable about the poten-tial liability they could incur. While no U.S. jurisdiction has created a cause of action for cyberbullying in the workplace, the under-lying conduct associated with cyberbully-ing fits well within the bounds of existing employment related causes of action, which impose liability on an employer.

Prior to the explosion of technology, in particular, social media, employers faced potential liability if the company or its agents discriminated against an employee because of his/her membership in a pro-

tected class of employees. The underlin-ing principle, since employers control the workplace, was that liability may be attrib-uted to them for discriminatory conduct that occurred therein. The expansive use of technology has blurred this principle because workplaces are no longer limited to the physical walls of an office building or a factory. Today, the workplace is any-where an employee can access LogMeIn, Citrix, or other similar remote access networks. As such, the risk of liability has expanded into a murky and unclear area.

With regard to the issue at hand, the decision in Espinoza v. County of Orange is instructive. In Espinoza, employees posted anonymous comments about a disabled

employee on personal blogs, which ref-erenced said employee and contained complaints about the workplace environ-ment. The employer had no knowledge of the blogs until the disabled employee filed complaints with the employer about said postings. Despite being made aware of such potentially discriminatory postings, the employer never interviewed any employ-ees and conducted a cursory investigation of the matter. Eventually, the employer emailed all staff reminding them the blog posts in question violated the employer’s policies, instructed all staff to stop posting inappropriate comments, and only partially blocked web access to these blogs from the workplace. Based upon the foregoing facts, the court found the employer liable for harassment and disability discrimination under California law.

According to the court in Espinoza, under California law, an employer was liable for harassment based on a disability if it “knows or should have known of the harassing conduct and fails to take immediate and appropriate corrective action.” As such, the court found that the postings were sufficiently related to the workplace because employees accessed the blogs on the workplace computers; the blogs referred to the disabled employee directly; and the postings discussed work-related issues. Rejecting the employer’s argument that the imposition of liability was improper because the postings were outside the workplace and

The Beat of New York Law

Vol. 8 Issue 23 | August 2014 | www.nycla.org

Index to AdvertisersLawsuites . . . . . . . . . . . . . . . . . . . . . . . .8

Law Office of Randy C . Botwinick . . . . . . 5, 8

Collard & Roe . . . . . . . . . . . . . . . . . . .8, 9

NAM . . . . . . . . . . . . . . . . . .8, Back Cover

INSIDE NY COUNTY LAWYERCyberbullying and the Workplace: Employers Beware . . . . . . . . . . . . . . . . . .1

An Apple a Day, Keeps the Doctor and the DCA Away . . . . . . . . . . . .1

The Interactive Process: Rights and Obligations of the Employee and Employer . . . . . . . . . . . . .2

Message from Lew Tesser President of NYCLA . . . . . . . . . . . . . . . .2

Message from the NYCLA Foundation . . . . . . . . . . . . . . . . .3

Employee Engagement: A Great Defense Against Workplace Problems . . . . . . . . . . . . . . .5

Speaking Tip . . . . . . . . . . . . . . . . . . . . .5

NYCLA Recent Events . . . . . . . . . . . . . . .6

NYCLA In The News . . . . . . . . . . . . . . . .8

NYCLA Library Notes . . . . . . . . . . . . . . .9

NYCLA Upcoming Events . . . . . . . . . . . .9

{ See Cyberbullying on page 2 }

{ See Apple a Day on page 3 }

2 • August 2014 The New York County Lawyer

Published forNew York County Lawyers’ Association

14 Vesey StreetNew York, NY 10007

(212) 267-6646www.nycla.org

Lewis TesserPresident

Sophia J GianacoplosExecutive Director

Toni ValentiDirector of Marketing &

Membership Development

Ariella GreenbaumEditor

Senior Communications & Social Media Manager

Published byApogee Publications

6528 Greenleaf Avenue, Ste. 219Whittier, CA 90601

(562) 698-3424

PublisherMel Sturr

Accounts DirectorKathleen Pishotta

Art & Design AdjudicatorAude Cabaldon

EditorNicole Millman-Falk

For advertising information, call (888) 371-4933.

®2014 New York County Lawyers’ Associa-tion. All rights reserved. New York County Lawyers’ Association grants permission for articles and other material herein or portions thereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospective clients, professional colleagues and students provided that such shall not involve any matter for which payment (other than legal fees or tuition) is made and provided further that all reproductions include the name of the author of the article, the copyright notice(s) included in the original publication, and a notice indi-cating the name and date of the Association publication from which the reprint is made.

Subscription • New York County Lawyer is published monthly (except January and August) for $10 per year by New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007.

{ See Cyberbullying on page 3 }

Written by Julieanne Yanez, Esq. Edited by Stephen McQuade, Esq.

The legislative intent behind anti-discrim-ination laws such as the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL) aims to remove unjust barriers and afford protections against unlawful behavior for a lawful status in the area of employment. While each statute has distinct statutory lan-guage, the ADA, NYSHRL, and NYCHRL

place rights and impose obligations on both the disabled employee and his/her employer to insure equal opportunity in the workplace.

One right afforded an employee under the ADA, NYSHRL, and NYCHRL, arises when a disabled employee alleges a disability and sub-sequently makes a request to his/her employer for a reasonable accommodation. In turn, the disabled employee’s request for a reasonable accommodation imposes an obligation on the employer to engage the employee in an “interactive process” to ascertain what accom-modations, if any, may be provided. The extent to which an employer must engage in an interactive process has been the topic of numerous federal decisions and recent deci-sions under New York State and City law.

The Interactive Process Under Federal Law

The ADA prohibits the discrimination of a qualified individual on the basis of disabil-ity in the discharge of employees. The ADA expressly states it is unlawful for an employer to not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability. However, the ADA does not pro-vide an express definition of a “reasonable accommodation.”

The Code of Federal Regulations suggests that to determine the appropriate reasonable accommodation the employer may need to initiate an informal, interactive process with the disabled employee in need of the accommodation. The Code of Regulations describes the interactive process as a means to identify the limitations resulting from the disability and the potential reasonable accommodations that could overcome the limitations. The language in the EEOC Compliance Manual further supports the Code of Regulations.

The Second Circuit has not held or taken the position that the interactive process is a mandatory legal obligation. Rather, the Sec-ond Circuit has held that, when an employee requests a reasonable accommodation, the obligation of an employer to engage in the interactive process is triggered. Moreover, the Second Circuit has also opined that an employer’s failure to engage in an interactive process is not an independent element to demonstrate liability in a disability discrimi-nation claim, but merely a factor to consider.

The Interactive Process Under New York State and City Law

Similar to the ADA, the NYSHRL defines “reasonable accommodation” and prohibits an employer from refusing to provide reason-able accommodation to the known disabili-ties of an employee. The NYSHRL also does not define or discuss an interactive process. Similar to the ADA and the NYSHRL, the NYCHRL defines reasonable accommoda-tion but does not discuss an interactive pro-cess or the obligation of the employee and employer to engage in an interactive process. While the NYSHRL regulations employ lan-

guage to describe an interactive process, there has been a dearth of legal authority discussing the issue of whether the “interactive process” is a mandatory legal obligation under New York State and City law.

In Phillips v. City of N.Y., the Appellate Divi-sion, First Department, held that an employer could be liable for failing to engage in a good faith interactive process with the employee to determine if a reasonable accommodation could have been made to accommodate the employee’s disability. The court in Phillips held that under the broader protections of both the NYSHRL and the NYCHRL, an interac-tive process is required whereby the employee and the employer engage in a good faith inter-active process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested. The Phil-lips court stated “the process continues until, if possible, an accommodation reasonable to the employee and employer is reached.”

In the recent decision of Jacobsen v. N.Y.C. Health and Hosp. Corp., the Court of Appeals addressed the issue of whether a New York employer must engage in the interactive process with an employee even if the accom-modation requested by the employee suggests the employee cannot perform the essential functions of his job. The Court of Appeals answered this question as “yes.” The Court of Appeals held that where an employer fails to demonstrate it responded to a disabled employee’s request for a particular accom-modation by engaging in a good faith inter-active process regarding the feasibility of that accommodation, summary judgment may be precluded by the employer.

In Jacobsen, the Plaintiff, a Health Facilities Planner, was diagnosed with a form of pul-monary dysfunction and shortly thereafter was reassigned. After this transfer, the Plaintiff received a new diagnosis of “pneumoconio-sis,” an occupational lung disease caused by prolonged inhalation of asbestos or other dust particles. The Plaintiff then requested a three-month medical leave of absence. At the time, the Plaintiff’s physician stated the Plain-tiff should not be exposed to “inhaled dusts.” Three months later, the Plaintiff’s union counsel requested that the Plaintiff be given a reasonable accommodation in the form of a reassignment. The Plaintiff was not reas-signed, but returned to work in March 2006. Upon his return, the Plaintiff requested a protective respirator to prevent excessive dust inhalation. The protective respirator was not provided to the Plaintiff; instead, the Respon-dent provided the Plaintiff a standard dust mask. Shortly thereafter, the Plaintiff filed a disability discrimination complaint.

In its analysis, the Court of Appeals rea-soned that under both statutes an employee’s request for a reasonable accommodation is relevant as to whether an accommodation can be made. Under the NYSHRL and the NYCHRL, the request for a reasonable accom-modation made by the employee guides the exploration of whether the requested accommodation can be made and ultimately

granted. The Court of Appeals reasoned that the dialogue between the employee and the employer furthered the legislative intent of both the NYSHRL and the NYCHRL to cre-ate an individualized standard for determin-ing whether an employee could perform the basic and necessary functions of their job with a reasonable accommodation. As such, the Court of Appeals held that the NYSHRL and the NYCHRL definition of “reasonable accommodation” and “disability” require that when an employee seeks a specific accommo-dation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee’s proposal without further inquiry.

While the decision places a legal obligation on the employer, the Court of Appeals did explain that an employer’s failure to engage in an interactive process is just one factor to consider in deciding whether at the time the employee sought the reasonable accommo-dation, one was available to the employee. This finding still places an obligation on the employee when commencing a failure to accommodate claim and overcoming the hurdle of summary judgment. By making this finding, the Court of Appeals provides an opportunity to the employer that summary judgment is not an insurmountable hurdle that the employer cannot overcome.

ConclusionGuidance from recent federal and state

decisions firmly suggests that when an employee adequately informs his or her employer of his or her request for a reason-able accommodation, the employer has at a minimum, an obligation to engage in an interactive process under the ADA. In light of the recent Jacobsen decision, under New York State and City law, the employer must engage in an interactive process where a good faith dialogue is created between both the employee and the employer as to the feasibil-ity of the accommodation requested. Failure to do so may foreclose summary judgment in favor of the employer. The precise parameters of what constitutes an adequate, good faith, interactive process, in the eyes of federal and state courts, remains to be seen. In any event, both employees and employers can anticipate that future decisions will continue to give shape to the interactive process.

Julieanne Yanez, Esq., is an EEO/AA Officer at the New York City Health & Hospitals Corporation, and a Member of the NYCLA Labor & Employment Committee. Stephen McQuade, Esq., is an Associate at Certilman Balin Adler & Hyman, LLP, and Chair of the NYCLA Labor & Employment Law Committee.

was not conducted, dictated and/or sponsored by the employer, the court held that liability should be imposed upon the employer and that the corrective actions eventually undertaken by the employer were insufficient to absolve the employer of culpability.

Moreover, the potential for employer liability is greatly increased if the cyberbul-

lying occurs on a company forum (e.g., a company Facebook page). In Blakey v. Continental Airlines, Inc., employees posted harassing and defamatory statements about a fellow employee on the company’s online bulletin board. The court concluded that a website/forum may be deemed an exten-sion of the workplace. As such, although employers do not have a duty to monitor private communications, “employers do have a duty to take effective measures to stop co-employee harassment when the

employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the work-place and in settings that are related to the workplace.” Therefore, the employer would have a duty to monitor these sites and cor-rect any potentially violative posting; failure to do so shall render the employer liable.

The Espinoza and Blakey cases are particularly instructive as to the risk of liability that New York City employers

The Interactive Process: Rights and Obligations of the Employee and Employer

CYBERBULLYINGContinued from page 1

The New York County Lawyer August 2014 • 3

{ See Sigmond on page 9 }

Dear Readers:What do lawyers

need? A strong sup-port system? Pro-fessional develop-ment? Continuing education courses? NYCLA provides the ingredients for law-

yers of all fields and experience to get to the top of their game and stay there. With an open committee structure, lawyers can participate on any committee and be a part of the great work that they do—pub-lish articles, speak at public events, engage in exciting programming and fabulous social events. Public sector employees, like you, receive a huge dues discount – 60%. Joining is a great value!

NYCLA is a community of nearly 9,000 attorneys, judges, academics, and law students. We offer a range of benefits and opportunities. As a Member, you can take advantage of numerous publications, courses, lectures, community programs, and exciting networking events with lawyers and judges. Members receive our monthly newspaper, New York County Lawyer, written for lawyers, by lawyers and our weekly eNewsletter. Both will keep

you up to date on the latest happenings at NYCLA, as well as offer professional expertise on legal trends.

Being a NYCLA Member also entitles you to great personal benefits and dis-counts, such as car rentals including Zipcar, retail discounts savings at Brooks Brothers, and special NYCLA Member pricing on gym memberships at Equinox, Crunch, NY Health & Racquet Club, and NY Sports Club. These are just a few ways to leverage your NYCLA Membership.

If you’re looking to expand your legal career and are not already a NYCLA Mem-ber, I encourage you to join us. Visit nycla.org/joinus to learn more or call 212-267-6646 x208. If you are already a Member, speak to me about ways to get involved: Join a Committee; volunteer for one of NYCLA’s pro bono programs; or pick up new skills through NYCLA’s acclaimed CLE offerings. Feel free to tweet me at @nyclapres, or email at [email protected].

Lew Tesser, PresidentNew York County Lawyers’ Association

Message from Lew Tesser President of NYCLA

Dear Member:As we usher in

new leadership at NYCLA, I encour-age everyone to take a moment to reflect on the importance of our programs, our roles as lawyers,

and the great spirit of inclusion and justice that define our community. As our new Board President, Lewis Tesser expressed at this year’s Annual Meeting, it is truly an honor and a privilege to serve people in our capacity. And to that end, I might add how vital it is that we consider our future capacity to continue to serve and defend those who need us most. This, in essence, means finding new resources and methods to increase our impact in the community and also our efforts to educate and encour-age young lawyers.

As the new President of the NYCLA Foun-dation, my priority is to build upon the very spirit that defines our work and traditions as lawyers by investing in the development of a plan that will serve to strengthen the financial and moral support of our current programs. As you know, NYCLA’s pro bono programs are a top priority to the Associa-

tion and to the Foundation. Equally, such is the Hon. Harold Baer and Dr. Suzanne Baer Minority Judicial Internship Program, which provides invaluable opportunities to law students from a wide array of back-grounds. Currently, NYCLA depends on the generous donations of its Members, as well as that of a few outside foundations and corporate donors. Although we have done well to support our programs in the past, we can and should do more. While I only mentioned two of the many initiatives we have at NYCLA, I hope to emphasize that we have merely scratched the surface in terms of what we can do to support and develop all our programs.

So we must charge forward and begin to plan and take action. We will become cre-ative, innovative, and enterprising when it comes to doing business, fundraising, and serving the patrons of our community. Yes, we still need your donations and thoroughly encourage you to keep giving to NYCLA, as we cannot continue this work without you. However, I also hope that you will keep an open mind as well roll out new ideas, ini-tiatives, and build new relationships with other organizations and companies who can AND WILL support NYCLA’s work.

Message from the NYCLA FoundationA Future Made of Innovation and Enterprise

ees, undocumented employees, and employees who reside outside of New York City. Under the law, employees can use their sick leave to care for themselves, or a family member.

The law recognizes the following as fam-ily members: children (biological, adopted, or foster children), grandchildren, spouses, domestic partners, parents, grandparents, siblings (including half, adopted, or step-siblings), and children or parents of an employee’s spouse or domestic partner.

Who Is Not Eligible?Employees who work less than 80

hours a year, students in federal work study programs, employees whose work is compensated by qualified scholarship programs, and employees of government

agencies are not eligible.

Why Has the Law Changed?According to the legislative intent of the

City Council, the amendment of the Paid Sick Leave Law was enacted in attempts to “have a positive effect on public health of the City [New York City] and lessen the spread of and exposure to diseases.” Furthermore, the Council found that “supporting a healthy workface will foster greater employee reten-tion and productivity” and that “providing sick time to workers at a time when the economy is improving, and ensuring that workers’ jobs are protected when they need to take a sick day, strikes the right balance and will result in a more prosperous, safe and healthy City.”

With this new mantra, the City Council has made hefty strides in advertising its campaign across the City. One can find the advertise-ment, in English and Spanish, running on

nearly 1,000 subway cars and 1,000 buses, as well as phone kiosks and waiting stations. The advertisement features the City Council’s campaign tagline: “Feel 100%. Work 100%. Together We Can Keep Businesses Strong and Keep New Yorkers Healthy.”

When Does the Law Become Effective?The law came into effect on April 1,

2014, as the official date that started toll-ing the accrual time for sick days. Days that are accrued are available for use as early as July 30, 2014 for existing employees who began working prior to the enactment of the legislation.

For new employees, the date of accrual begins on the first day of their employment, and the days are available for use 120 days after the first day of employment.

Where Can I Find More Information? This is not an exhaustive list of the provi-

sions of the law, but merely to be used as an overview of the “who, what, where, when, why” of the new legislation. For detailed information regarding the provisions of the law, employers and employees can visit nyc.gov/paidsickleave or call 311. In attempts to modernize and steadily stream infor-mation flow, further information may be found within the Department of Consumer Affair’s webpage, or Twitter, Facebook, and Instagram account using the handle @NYCDCA and hashtag #paidsickleave.

Jennifer S. Yoon, Esq., is a Litigation Defense Attorney at Wilson, Elser, Moskowitz, Edelman & Dicker, specializing in medical malpractice. She also

practices general litigation in New Jersey and Florida, and is a board member of a nonprofit organization in New York.

APPLE A DAYContinued from page 1

CYBERBULLYINGContinued from page 2

potentially face regarding cyberbullying. The New York City Human Rights Law (NYCHRL) defines cyberbullying as “will-ful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices that is intended to frighten, harass, cause harm to, extort, or otherwise target another.” Although this provision does not constitute an indepen-dent cause of action under the NYCHRL, conduct that underlies the cyberbullying can potentially constitute a cause of action currently authorized under the NYCHRL.

Section 8–107(1) (a) of the NYCHRL makes it “an unlawful discriminatory prac-tice ... for an employer or an employee or agent thereof, because of the actrual or per-ceived age, race, creed, color, national origin, gender, disability, marital status, partner-ship status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to dis-criminate against such person in compen-

sation or in terms, conditions or privileges of employment.” To establish discrimina-tion under the NYCHRL, a plaintiff must demonstrate “by a preponderance of the evidence that [he/]she has been treated less well than other employees because of [his/]her [status in a protected class of employ-ees].” Furthermore, the NYCHRL imposes strict liability on an employer for the dis-criminatory acts committed by its employ-ees where (1) the offending employee or agent “exercised managerial or supervisory responsibility;” (2) the employer “knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropri-ate corrective action;” and (3) the employer “should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.”

Extrapolating these principles and apply-ing them to the NYCHRL, employers should be vigilant regarding activity on social media sites that they administer and/or sponsor, par-ticularly because employers in the City of New York may be held to be strictly liable for dis-criminatory acts perpetrated by its employees.

Further, employers should be vigilant regard-ing the effective and efficient investigation of complaints filed by employees regarding potentially discriminatory posts, blog entries, pictures, and other similar representations that appear to have been made by other, fellow employees, especially when taken in context with an employee’s status in a protected class of employees. In the event that complaints are found to be legitimate, employers should take swift, ameliorative actions, in order to address said complaints, to limit its exposure to liabil-ity, and to prevent future, similar abuses from occurring.

Additionally, given the potential liability that can originate from cyberbullying in and out of the workplace, how can employers deal with the increased risk of liability without having to worry about being the Internet police for their employees instead of running their business? One option is to draft specific workplace policies that forbid this conduct, encourage reporting of cyberbullying, provide a procedure for investigating such complaints, and prohibit retaliation. Still, the issuance of such a policy may not shield an employer from liability under the NYCHRL, unless the employer takes immediate remedial action

when any individual with supervisory author-ity learns of the harassment. Thus, employers need to ensure that its management takes immediate and diligent action upon learning of conduct which could amount to cyberbul-lying or discrimination in any way, no matter how insignificant it appears.

Jael Dumornay, Esq., is an Associate at Trivella & Forte, LLP, and member of the NYCLA Labor & Employment Law Committee. Jacob Tebele, Esq., Law Office of Michael Botton, LLC, is a member of the NYCLA Labor & Employment Law Committee. Stephen McQuade, Esq., is an Associate at Certilman Balin Adler & Hyman, LLP, and Chair of the NYCLA Labor & Employment Law Committee.Association.

4 Evening Bridge the Gap:A Program for Newly

Admitted Attorneys16 NY Credits: 3 Ethics; 7 PP/LPM; 6 Skills

16 NJ Credits: 3 Ethics; 13 GeneralTransitional and Non-transitional

www.NYCLA.org

By attending the 4 sessions held on Wednesday evenings beginning September 10, and continuing on September 17, October 1 and October 8, newly admitted attorneys can complete their first or second year New York MCLE requirements. If you can’t attend all 4 sessions, mix and match the sessions that fit your needs and your schedule. These sessions also serve as great refreshers for more experienced attorneys looking to learn about new practice areas, brush up on their skills or learn about recent developments in the law. Topics include:° BYOD: Using Personal Devices in the Workplace° Ethics° Privilege and e-discovery° What You Need to Know About Privacy Law° 12 Cases from the Past Year Every Real Estate Attorney Should Know

Check our website for updates and September course schedule!

Beginning September 2014

The New York County Lawyer August 2014 • 5

By Russ Korins, Esq.

As the other articles in this issue of New York County Lawyer demonstrate, there are many ways an employee can cause prob-lems in a workplace. There are also many legal rules and remedies attorneys use to address these problems.

But what if you could do something proactively to lower the chance that these problems occur in the first place? Even bet-ter, what if you could rally all employees around a common set of goals and values, so that brought into a united mission, their energy goes into working together rather than breaking apart?

This has been a hot topic among chief executives and business owners of compa-nies large and small, as businesspeople now have a better understanding than ever of what it means to increase employee engage-ment. This is also valuable knowledge for attorneys, like those at my firm, who work with HR and talent management executives on hiring and retaining the best employees in a competitive marketplace.

To learn more about this, I spoke with Jeremy Wortman, Ph.D., whose career in talent management has included leading employee engagement initiatives at a large online brokerage, teaching on organiza-tional psychology, and consulting to busi-ness leaders across the country on talent management issues.

RK: What does it mean for an employee to be “engaged?”

JW: When we say an employee is engaged, it is a function of three things. First, they are emotionally connected to their orga-nization, meaning they feel proud to be a member. Second, they are psychologically connected, meaning they believe in the organization’s mission, vision, and values. And finally, because of these two aspects, they will go above and beyond the call of duty for the organization and are much less

likely to leave. For an engaged employee, the workplace is much more than a cubicle and a task list. It has a greater meaning in the employee’s mind.

RK: So it makes sense that a lack of engage-ment would be related to the number of problems a company has with employees.

JW: That’s right. In fact, study after study has shown that disengaged employees undo all of the great work of engaged employees by spreading negativity and behaving counter-productively. That’s why companies are more attentive than ever to making sure their rate of employee engagement is as high as pos-sible. It saves them these problems caused by disengaged employees and the high costs of replacing employees after they leave.

RK: What are some of the day-to-day inter-actions and larger programs that make a dif-ference in employee engagement?

JW: You’re right that it’s both day-to-day interactions and larger programs because both are so important. Take a simple conver-sation between a manager and one of his or her direct reports about job performance. The words used in that conversation and how the manager motivates the employee to do a bet-ter job next time can make all the difference in how the employee feels about the company. Companies put a lot of effort into coaching supervisors and managers into having these conversations in a way to make employees feel more connected and engaged, regardless of how positive or negative their feedback is. In fact, years of evidence have proven that the most critical driver of employee engagement is the employee’s direct supervisor.

RK: What about other kinds of company-wide programs?

JW: Businesses all over the country are doing all kinds of things, but here are a couple of examples. Many companies have employee recognition programs that highlight those who demonstrate desir-able qualities and behaviors. Recognized employees are leading examples of how to work together with colleagues, show

integrity in decisions and judgment, and put clients or customers first, for example. Another example is what companies are doing with intranets and the way executives communicate with employees. The way these messages are delivered through words, video, and internal news makes a difference. A chief executive or business owner might use language of collaboration and com-mon goals to inspire the desired behavior, rather than commandeering or patronizing language that leaves problematic employees even more disillusioned.

RK: Is engagement important at compa-nies of all sizes?

JW: Absolutely yes. What we’re talking about is not just a concern at large corpora-tions with thousands of employees. Engage-ment is also crucial at smaller businesses as well. A bad apple in a small group has the potential to bring down an entire team. If there are poor interactions in a small busi-ness, their effects will influence the dynam-ics of everyone. So smaller companies may not have the same size budgets for employee engagement programs, but they still need to be attentive to this and address the same issues on a smaller scale. And the good news is that a lot of the tactics we have been talking about don’t take a lot of money.

RK: In our previous conversations about employee engagement, you’ve talked a lot about “modeling.” What do you mean by that?

JW: Modeling means showing employees what it means to do what is valuable, proper and desired. It is so important. We all come from different backgrounds with different professional experience and different goals and expectations. If you’re going to get me to buy into this common cause and mission, you can help me by showing me how I’m supposed to act. The employee recognition programs I described earlier are one way to do that. Show me what it means to work with integrity and define what that means. Another example is ethics. Rather than just telling me that being ethical is important,

show me examples of employees who act ethically in day-to-day situations I recog-nize and understand, so I can emulate their behavior when the time comes. All employ-ees within any size organization are always looking upwards to learn what behaviors are really desired and rewarded.

RK: Why do you think employee engage-ment has become such a talked-about topic in recent years? What changed?

JW: The psychology of employees and the group dynamics in business are very com-plex. We needed a solid understanding of why people act the way they do in different situations to look at how we can motivate and inspire employees individually and col-lectively. Science has come a long way in the last twenty years, and there has never been a more exciting time in our field. Companies large and small understand that employee engagement is one of the great opportuni-ties they have not only to prevent the prob-lems that delinquent employees may cause, but also to inspire their teams to do even more of what it takes to drive a company towards its business goals.

Russ Korins, Esq., is a NYCLA Member and is the Director of Client Development at Cohen Tauber Spievack & Wagner, P.C., a New York

City-based business law firm with practices in corporate transactions, commercial litigation, corporate immigration and corporate tax. He can be reached at [email protected] or 212-381-8761.

Jeremy Wortman, Ph.D., is Founder of HRD Initiatives, a talent management and organizational development consultancy.

He can be reached at [email protected] and 402-817-4902.

Employee Engagement: A Great DefenseAgainst Workplace Problems

By Maria Guida

Some attorneys make the mistake of rehears-ing their talks, pitches, openings, summations, etc. in front of a mirror. Rehearsing with a mir-ror simply reinforces the bad habit of focusing on yourself.

When viewing yourself in the mirror, don’t you focus on how you look?

When you rehearse with a mirror, it’s very difficult to focus on the task at hand! Prepa-ration/rehearsal for any speaking moment should be a process of training your mind to focus on your purpose/objectives and your listeners’ needs.

Consider the slow-motion films of Olympic runners crossing the finish line, drenched in sweat, their faces distorted with effort, expend-ing every last ounce of energy to achieve a goal. In their passion to win, they don’t have the slightest care about how they look. They simply cannot waste their energy on such a concern.

Actors understand this. Unless the character he is playing is focused on how he looks, the actor cannot spare any energy thinking about how he looks. In order to be convincing, he must use all his energy to pursue the objectives he has with regard to the listener.

Of course, when preparing to speak, it is important to consider your visual impres-

sion: body language as well as attire, hair, and makeup, etc. But these factors must be considered before you appear in front of your audience. As soon as your audience can see you, you must forget all this, so that you will be free to focus on them.

Remember, too, that any speaker’s preoc-cupation with self is usually detected by the audience and can be interpreted as a sign of insecurity or arrogance!

Rehearse constructively: with your face out, focused on an imaginary spot on the wall, and imagine a friendly face on that spot as you speak. Your rehearsal (like every rehearsal in the theater) should always be a rehearsal of behaviors that will help you appear spontane-ous and un-rehearsed.

Take a tip from actors: Don’t use a mirror to rehearse!

Maria Guida is a speaking strategist/coach at major law firms and law associations, as well as a corporate and TV spokesperson. As an actor

on Broadway, TV, and film, she has worked with Paul Newman, James Earl Jones, and Kevin Kline. Maria can be reached at 718-884-2282 or via email: [email protected].

The Mirror Is Not Your Friend LEGAL PROFESIONAL CORNERTo advertise here, contact Kathleen Pishotta at 888-371-4933

or by email at [email protected].

6 • August 2014 The New York County Lawyer

Recent Events

On May 23, NYCLA and the Justice Resource Center co-sponsored the seventh NYC Youth Law Conference at New York Law School. One hundred thirty students from six public high schools attended a plenary session on computer forensics and workshops on criminal law and civil rights issues. The third edition of NYCLA’s NYC Youth Law Manual was launched and provided to participants.

NYCLA HostsYouth Law Day

Gordon Eng; Sarah Jo Hamilton; Barry Temkin; Carol Sigmond.

First Row (left to right): Megan Davis; Hon. Joseph Kevin McKay; Scott Mitchell Berman. Second Row (left to right): Michael McNamara; Carol Sigmond; Hon. Sherry Klein Heitler; Lewis Tesser; Charles Kerr; Martin Minkowitz; Susan Lindenauer; Stephen Lessard.

(L to R) Shauna-Tesser Friedman, Hon. Ariel Belen, Carol Sigmond

(L to R) Alison Wilkey, Klaus Eppler

(L to R) Michael Miller, Barbara Moses, Hon. Stephen Crane (Ret.)

Lewis Tesser and Barbara Moses

(Left to right): Lisa Grumet, Associate Director, Diane Abbey Law Center for Children and Families, New York Law School; Lew; Jasmine Brancati, 11th grader at New Dorp High School in Staten Island and winner of the cover art design contest for the2014 NYC Youth Law Manual.

(Right): Students participate in Youth Law Conference on May 23.

NYCLA’s Annual MeetingOn May 29th NYCLA held its Annual Meeting, which included the induction of Lewis Tesser as NYCLA’s 60th President. The meeting was followed by a reception to celebrate the Association’s accomplishments over the past year and the induction of the new Officers and Directors. In addition, the Eppler Prize was awarded to The Criminal Justice Section for its Report and Recommendations on Bail Reform in New York State, which was published in January 2014. The Kobak Prize was presented to the Alternate Dispute Resolution (ADR) Committee and the Professional Ethics Committee for innovative programs and The President’s Commendation, a new honor, was awarded to the Task Force on Judicial Budget Cuts to recognize its superior contribution to NYCLA and to the justice system. You can view Lewis Tesser’s Annual Meeting remarks here: (https://www.facebook.com/photo.php?v=10152107957856766)

The New York County Lawyer August 2014 • 7

Recent Events

On June 10th NYCLA’s Federal Courts Committee hosted its annual summer party at Battery Gardens Restaurant. Gregg Kanter, the former Federal Courts Committee Chair, received the Federal Courts Committee’s David Y. Hinshaw Award.

Federal Courts Committee Summer Party

Judith Leibowitz and Lewis Tesser

Luwick Francois and Dan Wiig

David Hinshaw, Richard Williamson, Gregg Kanter

Lew Tesser, NYCLA President, Sam Cohen, Judith Leibowitz, Brett Ward, Oriana Carravetta

Sam Cohen and Lewis Tesser

(Left to right): Elliott Wales, former Federal Courts Committee Chair; Stewart Aaron, former Federal Courts Committee Chair; Gregg Kanter, former Federal Courts Com-mittee Chair; Richard Williamson, former Federal Courts Committee Chair; Mike McNamara, former Federal Courts Committee Chair; and Vince Chang, current Federal Courts Committee Chair.

Brett Ward and Dan Wiig

NYCLA Hosts First Annual Young Lawyers’ Awards and Reception

On June 12th NYCLA’S Young Lawyers’ Section held its first awards and reception to honor attorneys and law students for their contributions to the legal profession. 2014 Awards and recipients included: The NYCLA YLS Rising Leader of the Bar Award given to Samuel B. Cohen, Esq., Partner, Stecklow Cohen & Thompson; The NYCLA YLS Law Student Award given to Judith Leibowitz, Law Student, New York Law School (class of 2015); and The NYCLA YLS Appreciation Award given to Brett Ward, Esq., Partner, Blank Rome LLP.

8 • August 2014 The New York County Lawyer

The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below.

Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplinary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New York County Lawyer.

September 1-15Barry Temkin212-804-4221

September 16-30Glen Schleyer212-558-7284

October 1-15Ellen Yaroshefsky

212-790-0386

October 16-31Sarah Jo Hamilton

914-725-2801

November 1-15Phil Schaeffer212-819-8740

November 16-30Whitney Elliot973-623-9448

December 1-15Gordon Eng

203-769-8812

December 16-31David Wiltenberg

212-837-6880

Ethics Hotline

Please Note: Assignments are subject to change.

BUSINESS TO BUSINESSLegal Office Space

LEGAL OFFICE SPACE

Lawsuites

• 305 Broadway (All Courts)

• 26 Broadway (Bankruptcy Courts)

Block from courts, perfect for Lawyers :

Plug and work; Office solutions for every budget; micro offices from $850; larger offices from $1,300; workstations from $450; Virtual packages from $125; Mail Plans from $50; Meeting Space; War Rooms; Deposition Rooms; 212 numbers; Call Answering. Admin Support. Brokers protected.

www.lawsuites.net

212.822.1475

[email protected]

Employment Lawyer

Law Offices Of

Randy c. BOtwinickSpecializing in

Personal Injury

From Orlando to Miami… From Tampa to the Keys

1-877-FLA-ATTY(352-2889)

www.personalinjurylawyer.ws

Patents & Trademarks

Collard & Roe, P.C.Patent, Trademark & Copyright Attorneys

Over 10,000 patents granted

Over 17,000 trademarks obtained

Over 45 years of experience

516.365.9802www.collardroe.com

Arbitrations/Mediations

NAMNational Arbitration

and MediationThe Better Solution

Complex Commerical& Employment

Personal & Catastrophic Injury

122 East 42nd Street, Suite 803

New York, NY 10168

(800) 358-2550www.namadr.com

New York Law JournalYoung Lawyers AwardsJune 17, 2014This article covers the June 17 first Young Lawyers Section Awards Program hosted by NYCLA’s Young Lawyers’ Section to honor attorneys and law students for their contribu-tions to the legal profession.

The Metropolitan Corporate CounselLetter From The President of the New York County Lawyers’ AssociationMay 30, 2014This article introduces Lewis Tesser as the 60th president of NYCLA, as he was inducted during the Annual Meeting on May 29, 2014.

Read MediaThe New York Bar Foundation Awards $390,000 in Charitable and Educational GrantsMay 29, 2014This article highlights the 64 organizations across New York State that received grants through the New York Bar Foundation Grant Program, inclusive of NYCLA.

New York Law JournalCourts Offer Olive Branch on Pro Bono RuleMay 29, 2014This article covers the May 27 Pro Bono Forum NYCLA hosted that brought together propo-nents and critics of the mandatory Pro Bono rule. The mandate that lawyers disclose their annual pro bono hours and any charitable con-tributions to legal services groups every two years went into effect in May 2013.

In The News

A roundup of recent national and local news stories featuring NYCLA and its members

Want to advertise in the next issue of the New York County Lawyer?

Contact Kathleen Pishotta at 888.371.4933 or [email protected]

www.apogeepublications.com

The wheels have been set in motion and we are transitioning into a new phase of business planning which includes aggres-sive fundraising and strategic planning. The first of our projects was to invest in and hire a Director of Development, and we did. Stephanie Rivers started with NYCLA in May 2014 and has been tasked with guiding our leadership as we strive to build a robust fun-draising program to take NYCLA to the next level. With her expertise, we will be able to standardize our fundraising practices, as well as present new and engaging ways we can all support NYCLA. Feel free to contact her at

[email protected] with your ideas.Simply put, we are aiming for a future

made of innovation and enterprise—one that positions NYCLA at the forefront of justice for all and as a service provider to the New York community. I hope you will become as excited as I am, for what I know will be a refreshing change for the NYCLA community.

Carol SigmondPresident, NYCLA Foundation

SIGMONDContinued from page 3

Upcoming Events

The New York County Lawyer August 2014 • 9

Library Notes

By Dan Jordan

All libraries have changed, and the NYCLA Library has changed too. The NYCLA Library contains a superb his-torical print collection and a core New York collection in print. Most other cur-rent resources are now available only in digital format, and the digital resources are extensive. Lexis, Westlaw/WestlawNext, Loislaw, and other databases are now the primary way to access cases, statutes and administrative materials, secondary source materials, and finding tools in the NYCLA Library.

Today’s practitioner needs to be able to

perform research on Lexis, Westlaw/West-lawNext and other databases, as needed, for their unique secondary source mate-rials. The NYCLA Library offers training in Lexis and WestlawNext every month. Check the schedule and register on the CLE Calendar on the NYCLA website at www.nycla.org.

Asking the Library Staff for assistance is a great timesaver. Oftentimes, we can point you to desired materials or point you to resources you were unfamiliar with.

To develop expertise in legal research read the main treatises and databases on the subject. I regularly refer to Zimmer-man’s Research Guide, an online ency-clopedia for legal researchers by Andrew Zimmerman. The Guide can be found at Law.Lexisnexis.com/infopro/zimmer-man’s. There is no charge, no sign-in, and no password to gain access to the Guide. While the Zimmerman’s Research Guide is hosted by Lexis, it is broad and deep in its coverage and has references to all pub-lishers’ titles and websites. Zimmerman’s Research Guide covers international and foreign research resources in addition to

U.S. law.My second favorite research resource

is the current edition of Fundamentals of Legal Research, 9th Edition (2009), by Bar-kan, Mersky, and Dunn. Like Zimmerman’s Guide, this treatise is broad and deep. This book can be purchased at store.westaca-demic.com, the publisher, or new or used through amazon.com.

Gibson’s New York Legal Research Guide, 4th Edition (2014), by Bill Manz and Karen Spencer, is a great book if you plan to develop expertise in New York research. Twenty chapters of the book are devoted to New York State Legal Research and 12 chapters focus on New York City Legal research. This book can be purchased at [email protected]. To see information about the publication go to www.wshein.com.

I regularly use Paul Axel-lute’s book, New Jersey Legal Research Handbook, 6th Ed (2012), published by the New Jersey Institute for CLE, and find it very helpful in understanding the finer points of that state’s research nooks and crannies. This book can be bought at www.njicle.com.

For home access to legal research mate-rials, most NYCLA Members qualify for the New York State Library-Attorney Bor-rower’s Card, which is available to New York State residents who are admitted to practice law in New York. For information about this free internet-based access to substantial legal and non-legal databases, contact Dan Jordan at [email protected] for an application for the NYSL-ABC.

Lawyers have a professional obligation to be proficient in legal research, and the NYCLA Library stands ready to help our NYCLA Members as needed.

In regards to our professional obligation to be proficient in legal research in behalf of our clients, the NYCLA Library stands ready to help our NYCLA members.

To make suggestions about book, ebook, or database purchases for the NYCLA Library, please contact Dan Jordan, Director of Library Service, at [email protected] or at 212-267-6646, x201.

SeptemberPublic Service AwardsMonday, September 15, 6:00 pm

Law Student Reception and Mentor AuctionThursday, September 18, 6:30 pm

NYCLA Networking RoundtableHosted by NYCLA’s Solo & Small Firm Practice Committee Tuesday, September 23 – 6:30 p.m. Sessions will be held every fourth Tuesday of the month for six consecutive months thru February, including a December holiday party.

All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.

122 East 42nd Street, Suite 803, New York, New York 10168

Additional Locations: Garden City, Brooklyn, Staten Island, Westchester and Buffalo (800) 358-2550 | www.namadr.com

The Better Solution®

WHEN YOU LOVE WHAT YOU DO, IT SHOWS.

NAM RANKED #1 ADR FIRM IN THE U.S.National Law Journal Reader Rankings Survey

NAM MEDIATORS RANKED #1 AND #2 IN THE U.S.

National Law Journal Reader Rankings Survey

RANKED #1 ADR FIRM IN NYFOR THE THIRD STRAIGHT YEAR

New York Law Journal Reader Rankings Survey

7 OF THE TOP 10 MEDIATORS IN NY New York Law Journal Reader Rankings Survey

8 OF THE TOP 10 ARBITRATORS IN NY New York Law Journal Reader Rankings Survey