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Labor Law and the Salaried Employee

admin — Tue, 10 Aug 2010 08:02:09 +0000

Salaried employees are, for the most part, at the mercy of their employer. These employees are under contract to their employer for a set amount of money on a set pay day. The labor laws, in this case, are somewhat ambiguous, so many of these cases go to court or are decided by arbitrators and no one may be found at fault or “guilty” unless the excesses are blatant and obviously knowingly carried out.

Salaried employees are not usually required to keep track of their hours, though for reporting instances, your employer may require that. Some employers do this as a means to measure productivity and will require complex descriptions of the work done as well as the number of hours or even minutes spent on each task. This is legal, though on the side you may want to make notes of how much time it took you to complete this requirement, along with your regular work. It will subtract from your productivity level if you must spend minutes recounting your work every time that you perform a task. It is also wise, if you are entering into a salaried position, that it is clearly stated how many hours you are expected to work during a regular work week. Since you are not punching a time clock or filling out a time sheet, you must keep meticulous records if you regularly work over the number of hours originally agreed upon. For example, if your contract states or you know that you are required to work 50 hours a week, but you regularly put in 60 or 70 hours a week with no additional compensation, then you have the right to approach your employer about it and in the case that you and he or she disagree, you also can take them to court for reimbursement for those additional hours. But, in most cases, it is imperative that your contract spells out the expectations and if you are looking at one or two weeks over the course of a year, do not expect a ruling in your favor. You also cannot expect to be compensated at the overtime rate, though in some cases of blatant abuse of a salaried employee, that has been a decision handed down by the court.

When it comes to sick and vacation days, a salaried employee is compensated when he or she has the sick or vacation days available. By the same token that your employer is required to pay you the set amount for a week in which you worked the set hours, if you do not have sick days or vacation days available, your employer is not required to compensate you for hours you did not work. In this case, your salary is usually computed to a daily or hourly rate, and that amount of money can be withheld from your salary. This normally only happens with cases where the employer feels that the employee is abusing their salaried position. On the other hand, if you are regularly a very reliable employee who puts in more than their agreed upon salaried hours in the majority of weeks, but then has to take a sick day once or twice during a pay period and your employer decides to dock your pay, regardless of the number of additional hours that you have voluntarily worked, you may have a case. These cases are much more difficult to bring, but if a pattern of this type of abuse can be tracked and attested to, your employer may be required to compensate you and will also be required to mend his or her ways.

Yes, it’s true that salaried employees do not necessarily receive the same protection as an hourly employee, but it is also true that blatant disregard of the labor laws can land your employer in hot water. For the most part, salaried employees enter into contracts for which they feel adequately paid for the work they perform. It is really up to you, as an employee, and up to your employer to honestly carry out your contract in the way that it was intended when it was entered into.

Your Legal Rights in a Living-Together Relationship – Common Law Marriage

admin — Wed, 14 Oct 2009 04:36:36 +0000

This article is intended for anyone involved in a long-term, committed relationship, who has never been formally married, and wants to know his or her rights. Whether your relationship recently ended, it’s in crisis, or you just want to know whether being formally married makes a difference in this day and age, you’ll probably be surprised by what the law provides.

One common misconception is a belief that there is little legal difference between marriage and living together. This sometimes arises out of the mis belief that after a period of cohabitation (frequently believed to be seven years), a living-together relationship is instantly metamorphosed into a common law marriage. This myth, though it has the persistence of urban legend, is pure fiction. In truth, you cannot enter into a common law marriage within the boundaries of New York State. And, common law marriage has become less and less favored across the nation over the past hundred or so years.

According to my most recent research, there are only ten jurisdictions that continue to recognize common law marriage (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia), and five others that do so, but only if the relationship was established prior to a certain date (Pennsylvania, Georgia, Idaho, Ohio and Oklahoma). There are a few countries that also recognize common law marriage, or a status similar to common law marriage.

Here in New York, common law marriage has not been legally sanctioned since 1933. But the inquiry doesn’t quite end there. There are several states, New York being among them, that recognize common law marriage relationships that were established while the parties resided or sojourned elsewhere, namely in one of the aforementioned common law marriage jurisdictions. So, despite the abolition of common law marriage in 1933, our courts continue to recognize common law marriages that were established in other jurisdictions. And, this may be the case even where the couple only temporarily sojourned in such jurisdiction, all the while maintaining their domicile in New York.

In such instances, the court’s determination of whether a common law marriage was established will hinge on the legal standards of the particular state where the parties sojourned. These standards and precedent vary from state to state. And, contrary to common law marriage folklore, common law marriage states look to more than just whether the couple attained their seventh year of living together.

Some legal factors that are considered significant in common law marriage states are: (i) the amount of time spent in the state; (ii) whether the parties “held themselves out” as husband and wife; (iii) whether they functioned as an economic entity; (iv) whether they ever entered into an agreement stating their intent to be considered married (even though they never formally wed); (v) whether either of the parties was married to someone else at the time; and (vi) whether the parties actually physically resided together. Lastly, in each of these states, historically you’ve needed to be of opposite sexes.

Contrastingly, factors that typically won’t be considered significant (factors I might contend bear more directly on notions of fairness) include (i) sacrifices made by either party in entering into the relationship (what lawyers call “detrimental reliance”), (ii) the standard of living enjoyed by the parties, (iii) whether one partner might not be able to sustain that lifestyle after separation (or even support himself or herself period), and (iv) whether there were children of the relationship.

This issue most recently garnered public attention in New York when the prominent film actor, William Hurt, was brought into court by his then ex-girlfriend, an actress and dancer by the name of Sandra Jennings. The decision in that case underscored, among other things, how crucial issues of credibility can be.

The common law marriage jurisdiction involved was South Carolina, where the parties had sojourned during the filming of “The Big Chill”. The crux of Ms. Jennings’ claim was that during an argument, Mr. Hurt told her that, “as far as he was concerned, we were married in the eyes of God”, that they had “a spiritual marriage”, and “were more married than married people.” Mr. Hurt, for his part, denied ever making these statements. There was also uncontradicted evidence that the parties never held themselves out as a married couple, even while cohabiting on location in South Carolina. On the other hand, the parties did have a child together.

In the appellate court decision, which dismissed all of Ms. Jennings’ causes of action (Jennings v. Hurt, 554 N.Y.S.2d 220), the Court made particular note of the following facts: (i) that Ms. Jennings had never mentioned any conversation regarding an alleged “spiritual marriage” during her pre-trial deposition; and (ii) that a document, which Ms. Jennings had allegedly signed her name to as “Hurt”, was in fact an altered copy on which the name “Hurt” had been inserted.

As to the legal showing that was required under South Carolina law, the Court held that a common law marriage proponent must establish “an intention on the part of both parties to enter into a marriage contract…with such clarity on the part of the parties that marriage does not creep up on either of them and catch them unawares.” The evidence on this point, i.e., factors suggesting that neither of the parties considered themselves to be married, or held themselves out as such, also seemed to favor Mr. Hurt.

Another illustration of how difficult it can be to establish a common law marriage in a non-common law marriage state such as New York, involves one of my cases, which I’ll call A vs. A (I represented the claimant putative common law wife). In A vs. A, believing strongly in the case, we chose to first proceed solely under a common law marriage cause of action, forsaking in the first instance pleading non-marital causes of action, so as not to weaken the common law marriage claim. Subsequently, with permission of the Court, we added several non-marital causes of action to Mrs. A’s complaint. It was these claims, rather than the common law marriage cause of action, that ultimately served as her basis for recovery.

I am sure you will understand, from even a brief recitation of the facts, why we initially believed that Mrs. A’s case for common law marriage was a strong one. Most strikingly, Mr. and Mrs. A held themselves out as a married couple for more than thirty years. They also raised a child together (by then a grown woman), who was always led to believe that her parents were duly married. Each party wore wedding-style rings on the appropriate finger. In fact, no more than a handful of close friends and family ever knew the parties were not formally married. They were referred to in every writing, every joint account, every tax filing, etc., as Mr. and Mrs. A. And, Mrs. A had even legally changed her last name to A fifteen years earlier, upon becoming a naturalized citizen.

Further, Mr. A always told Mrs. A that they had no need to formalize their marital status, allegedly because they were in all respects a married couple. According to Mr. A, what was “his was hers”, and when they “got old”, they would get formally married. Needless to say, that day never came. Indeed, on the precipice of retirement age, Mr. A initiated their separation. By then, they’d established a more than comfortable lifestyle (including residence in a $1.5 Million penthouse apartment), a lifestyle that Mrs. A certainly couldn’t maintain on her own. And, all that Mr. A was initially offering to Mrs. A was a $50,000 per year stipend, for which in return he asked Mrs. A to quietly walk away from their thirty-plus year relationship.

The parties had also traveled widely, though they lived within the same borough of New York City for the entirety of their relationship. Yet, fatally to Mrs. A’s claim, the only common law marriage jurisdiction that they had traveled to was Washington, D.C. On this point, the Court’s decision, granting Mr. A’s motion for dismissal of the common law marriage cause of action, focused on the District of Columbia’s requirement that the parties to an alleged common law marriage must have done more than just cohabited as husband and wife; they must have cohabited after expressly agreeing, “in words of the present tense”, to become “man and wife”.

Rejecting our arguments, the Judge held that this agreement must have been actually and explicitly stated while the parties were physically present within the confines of Washington, D.C. It was inconsequential that the parties had explicitly made this kind of an avowal elsewhere. Because Mrs. A could not assert that she and Mr. A explicitly made this kind of an avowal, or even reiterated it, while physically present in D.C., her cause of action was deemed inadequate. Notwithstanding, Mrs. A prevailed in that portion of the Court’s decision that refused to dismiss several of her non-marital causes of action.

Conclusion
If you’ve concluded that your relationship might meet the legal criteria for common law marriage, I strongly recommend that you speak to a lawyer (preferably a family law specialist). And, for advice that you can rely on, you should plan to set aside at least a few hundred dollars for the cost of a consultation and additional legal research. The good news: if your relationship is found to be a common law marriage, you will generally have the same rights and obligations as every other divorcing spouse in this State.

On the other hand, if you’ve determined that your relationship is unlikely to qualify for common law marriage treatment (even though it may be one of significant financial interdependence), then I suggest that you read Part II of this article, which discusses a variety of other legal concepts that may be applicable to your living-together relationship.

Jonathan K. Pollack is an attorney admitted to practice in New York State (1992), and a partner of the firm of Beldock Levine & Hoffman LLP, located in NY, NY (since 2002). His area of practice is matrimonial, family law, the rights of unmarried cohabitants, and alternative dispute resolution in these practice areas. He is a graduate of Columbia College, NY (1987), and Tulane Law School, LA (1992). He has served on the Association of the Bar of the City of New York Committee on Family Court and Family Law and on the Inter-Disciplinary Forum on Mental Health and Family Law. He is also a member of the Association for Conflict Resolution, and completed divorce mediation training sponsored by the Academy of Family Mediators in 1996. He has experience handling cases in Supreme and Family Courts in all five boroughs of New York City, as well Westchester and Nassau counties.

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Law Studies

admin — Wed, 14 Oct 2009 04:33:52 +0000

A basic education in law studies can be gained at either a vocational school, college or law school. As a standard requisite to becoming a lawyer, students must earn their law degree through an accredited law studies program.

Designed for a wide range of legal professions, law schools offer the vital training and skills necessary to begin a career in law and criminal justice. Diverse in curriculum, the study of law may involve legal aspects of Administration, Business and Bankruptcy, Civil and Communications Law, Constitutional Law, Contract Law, Criminal Law, Cyberspace Law, Education and Environmental Law, as well as Estates, Trusts and Wills. Other areas covered can include Family, Health and Immigration Law, Insurance Law, Intellectual Property (Copyright Issues), Employment and Labor Law, and countless other associated studies.

Though no two law schools are the same, students who desire to work in the legal field should steer their academic curriculum toward their specific area of interest. Because undergraduate law studies encompass many of the above mentioned course topics, it is important for prospective students to focus on one or two primary areas of the law so to gain the most out of their educational experience.

A challenging academic field, law studies attained through a vocational school or college can be quite beneficial to those who are seriously contemplating a career as a practicing attorney. Prior law studies are almost always required and are extremely useful when applying to any law school or trade school geared toward law. Some of these prerequisite classes may include Introduction to Insurance, Law and Legal Processes, Business Law, Elementary Latin, Financial and Managerial Accounting, Public Speaking, and Psychology, in addition to a general education.

Law studies provided at trade or vocational schools should be considered entry-level, and may lead toward professional certification or an Associate degree. Students who have successfully completed law school can go into relevant legal professions involving legal and paralegal or justice areas including corrections and law enforcement. In addition, the ambitious student can continue his or her law studies at a college or university in order to become a practicing lawyer.

If you would like to learn more about Law Studies or even Online Law Schools, you can find more in-depth information and resources on our website.

DISCLAIMER: Above is a GENERAL OVERVIEW and may or may not reflect specific practices, courses and/or services associated with ANY ONE particular school(s) that is or is not advertised on SchoolsGalore.com.

Notice: Publishers are free to use this article on an ezine or website, provided the article is reprinted in its entirety, including copyright and disclaimer, and ALL links remain intact and active.

All About White Collar Crimes

admin — Fri, 21 Nov 2008 13:53:30 +0000

In this article we’ll introduce you to a few basics of what white collar crimes has to offer up to anyone who wants to learn more about crime and investigation and much more. When most people think about crime, white collar crimes are not the first thing that come to mind. White collar criminals do not fit the standard Hollywood depiction of lawbreakers in this country. Most of us might picture something like a bank robbery, or a lone gunman knocking over a liquor store. Maybe images of murder come to mind, or extortion schemes by the mob. White collar crimes, however, are way down the list for most of us. Nonetheless, white collar crimes are a real fact of living in this modern world. According to white collar crime statistics, they are way up in the last couple of years. Although rates for murders, assaults, and other violent offenses seem to be down nationwide, white collar crimes are still perpetrated as much or more in most areas. If you are accused of a white collar crime, it is important that you get the best representation that you can. Criminal representation is always important, of course, but the representation for white collar crimes is especially crucial. You see, white collar criminal lawyers need to have a more subtle understanding of the law than people representing other kinds of crimes. If you are representing someone suspected of murder, all you need to be able to do is cast reasonable doubt that they killed someone in a certain time or place. With white collar crimes, however, the issues are much more complicated. I have represented several people accused of white collar crimes in my time as a lawyer, so I know what I am talking about. The difference between white collar crimes cases and other kinds of criminal law is that the facts of the case are often not disputed in white collar cases. You are not trying to prove, for example, that your clients did not kill someone. You are trying to prove that your clients financial transaction was not illegal, or something like that. It is not a matter of life and death, but of shades of meaning in the law. We hope that the first part of this article as brought you a lot of much needed information on the subject at hand. There is another big difference in street crime vs white collar crime. In street crime, you are much more likely to have charges actually brought against you. People accused of white collar crimes are very infrequently tried. It is so expensive, and they are so likely to have good representation, that the government does not go after them. The public doesn’t care as much about white collar criminals, you see. If you are brought to trial, however, God help you. The government obviously thinks that it has a very solid case and has decided to make an example of you. When you thoroughly analyze each paragraph that we have discussed about white collar crimes, you will see a familiar thread of which to explore.

Are You Finding a Mesothelioma Lawyer?

admin — Fri, 21 Nov 2008 13:34:45 +0000

Patient suffering from mesothelioma not only needs emotional support but also legal support. There are many things which should be considered while you are finding a lawyer. There are many companies out there which are offering legal support. Your job is to find the best one among them. First thing you have to do is to spend some time with a professional. A professional can help you a lot in legal as well as medical sphere.legitimate work from home jobs

A reputed company always offers free consultation and support. I would recommend you to find a company which provides free of cost legal consultation. Almost every good company has a website. It is a good idea to go through the website. You should try to know about the work experience of the company which is providing legal support. You should go through the old cases which were handled by the lawyers of the company.

Mesothelioma is one of the worst forms of cancer. The main cause of mesothelioma is chronic inhalation of asbestos particles. The asbestos particles can be very harmful for human body. They can harm the lungs as well as other organs of the body. These particles specifically attack mesothelium. It is a special covering of the organs which allow them to move smoothly. The cancer developed in the mesothelium is not limited to one part of body but can also become malignant. The people who are diagnosed with mesothelioma do not live for a long time.

It is very important to diagnose the disease in a timely manner. You should have enough information about the signs and symptoms of the disease. The common symptoms of the asbestos cancer are dyspnoea, chest pain, weakness, and weight loss. If any of the above symptoms appear in your loved one then it is a good idea to visit a physician or an oncologist.

The three main organs or systems which are attacked by asbestos particles are lungs, gastrointestinal tract and heart. The most common form of this cancer is pleural form. If the cancer cells invade the gastrointestinal tract then it is known as peritoneal form. The third and the rarest type of mesothelioma is pericardial form.
You should spend some time in finding more information on this topic. You should have enough information about every sphere of the legal process. It is a good idea to find informative websites or blogs which are devoted to this type of cancer. You can also go through some article directories or online magazines which offer free articles on health related topics.