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This publication is intended as an information source for clients, prospective clients, and colleagues. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Fire District Materials: Batavia Conference 2013

I am looking forward to speaking at the Western New York Fire District Legislative Association Workshop tomorrow, and I wanted to write a short post as a resource for those attending.

As I wrote last December, New York expanded the “piggybacking” exception to competitive bidding.  Since that time, a number of fire districts have been approached by vendors offering goods and services under other governmental contracts, claiming that the contract falls within the newly expanded “piggybacking” exception.  But, as the State Comptroller noted, “It is the responsibility of local officials to review each proposed procurement to determine, on advice of the local government’s counsel as appropriate, whether the procurement falls within the exception.”  Thus, we expect to spend quite a bit of time discussing this exception tomorrow, as well as the Comptroller’s November 2012 bulletin discussing this relatively recent amendment.

A copy of the Comptroller’s bulletin may be found here, and I highly recommend reviewing this bulletin before considering whether to make a procurement under this exception to competitive bidding.  It is essential that you also involve counsel in the process.

The Comptroller’s Office has an excellent website, with a lot of very useful publications, and one that I recommend every year at this conference is the Comptroller’s Local Government Management Guide titled, Seeking Competition in Procurement.  This guide was just amended and reissued on May 2013, and it includes a sample procurement policy–which is one of the first things the Comptroller’s Office asks for when they show up at your door to conduct an audit.  This edition of the procurement guide also includes a discussion of the “best value” standard which is now also permitted in New York.

Another topic that will be discussed is the Open Meetings Law.  In the beginning of 2012, the Open Meetings Law was amended to require prior disclosure of agendas, proposed resolutions and other documents.  Shortly after this amendment was enacted, I wrote about it here.

Thank you for visiting my blog.  I hope you will consider subscribing by email, liking my page on Facebook, or following me on Twitter.  You may also want to subscribe to our firm’s email newsletter, In Confidence, here.  You can subscribe to only the topics you are interested in, and from time to time, I write about developments impacting New York municipalities, including fire districts.

Court Rules that “Like” on Facebook is Free Speech

Appellate court held that clicking this button is protected by the First Amendment

Appellate court held that clicking this button is protected by the First Amendment

Earlier today, the U.S. Court of Appeals for the Fourth Circuit, held that clicking the “like” button on a political candidate’s Facebook page is speech, protected by the First Amendment.  The case, which may be found on the Court’s website here, involved six sheriff’s deputies from the City of Hamton, Virgina, who alleged that the Sheriff retaliated against them in violation of their First Amendment rights when he chose not to reappoint them because of their support of his electoral opponent.  The ruling reverses, in part, the decision of the District Court, which had ruled, among other things, that the plaintiffs had not engaged in any expressive speech.

The District Court had concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” After analyzing what it means to “like” a Facebook page (Facebook filed an amicus brief in the case, and the Court’s decision contains a good description of how Facebook works to those wondering but who are afraid to ask at pages 37-39), the Court concluded that “[o]nce one understands the nature of what [Plaintiff] did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.”  [Decision at 39].

In reversing the District Court, the Court of Appeals held:

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it.  In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.  [Decision at 40].

The main take-away from this decision is the fact that a federal appellate court has now held that clicking the “like” button is speech.  This is not surprising to those of us who regularly use social media, like Facebook.  Hopefully, this issue will not find itself before the Supreme Court, as some of the Justices reportedly haven’t quite figured out email yet.

How to Defend Against “Excessive Wear and Tear” Claim When Car Lease Ends

Earlier today, my law partner, Kevin Cooman, posted an article on our firm’s website with some good tips for avoiding problems when your car lease expires, and I wanted to share it with my readers here as well.

Before we leased our minivan, our family always owned our cars outright.  For many people, leasing makes a lot of sense.  And often at the end of a lease term, many people either buy the car they’ve been leasing, or they lease another car from the same dealer or manufacturer.  But what happens if you decide to buy or lease from another manufacturer or dealer?  Kevin’s article, Car Lease Terminations–And the Unwelcome Surprises has some useful tips to prepare you to defend yourself from the almost certain claims that will be made against you when you turn your car in.  Armed with the evidence you’ve gathered, you will be in a strong position to prevail in any arbitration proceeding you may find yourself in after you dispute the claims.

Domestic Workers’ Bill of Rights

It’s Labor Day, and soon our kids will be off to school.  For our family, it also means that Mommy–who is a school psychologist in a local school district–is also back to school.

When our kids were just a little younger, this was also a very stressful time of year because we had to make arrangements to care for our children while we both worked.  Fortunately, my wife was able to enjoy the benefits of having a job with parenting leave for most of the time before our children were in school.  But last year we decided to hire a nanny to watch our children when they were not in pre-school.

It’s hard enough to sift through countless resumes, interview candidates, and conduct all the necessary background checks and make sure that the person hired is the right fit for your children.  But on top of that, you have to become an employer!  That means at a minimum that you have to:

  • Obtain an Employer Identification Number (EIN) from the IRS;
  • Verify employment eligibility by completing a federal form I-9 for your employee;
  • Register with the New York State Department of Labor; and
  • Report to the New York State Department of Taxation and Finance.

We also hired a payroll service, obtained Workers’ Compensation insurance and New York State Disability insurance.  Finally, I also drafted a contract between our family and our nanny to outline expectations and compensation, among other things.  I am amazed how thick all my files are for this one employee who only worked for us for a year.

During the process of preparing our paperwork and reviewing the laws and regulations applicable to domestic workers (which include nannies), I was actually surprised to learn that New York had recently enacted a Domestic Workers’ Bill of Rights.  Signed into law by Governor David Paterson on August 31, 2010, it went into effect on November 29, 2010.  Thus, it is still relatively new.

If you hire a domestic worker or nanny, here are the key points of the Domestic Workers’ Bill of Rights that you should be aware of:

  • You must pay at least minimum wage;
  • You must pay overtime at 1 1/2 times the basic rate of pay for all time worked over 40 hours a week (or 44 hours if worker lives in the employer’s home);
  • You must provide one day (24 hours) of rest every week (or if the employee agrees to work that day, overtime pay for the entire day’s work);
  • You must provide at least three paid days off after one year of working for you;
  • You must provide a written notice about your policies on sick leave, vacation, personal leave, holidays and hours of work;
  • You must provide written notice about rates of pay and pay day that are now also required by the Wage Theft Prevention Act; and
  • You must not retaliate against your employee for complaining to you or the New York State Department of Labor.

The Domestic Workers’ Bill of Rights also amended the New York Human Rights Law, to extend the protections from certain forms of harassment and retaliation to domestic workers.

If you are thinking about hiring a nanny or other domestic worker, and would like to set up a consultation to discuss the applicable legal requirements involved with such a hire, I would be happy to help.  Please contact me to set up a consultation.  The best way to reach me is my direct office line: 585.512-3542.  You can also contact me through my contact page.

One last thing.  While this post is primarily concerned with some of the legal aspects of hiring a nanny or other domestic worker, it is probably not the most important part of the process.  The most important part is to make sure that the person you hire is not only qualified and a good fit, but also has nothing in their background that would make them unfit to care for your child or other loved one.  The New York State Office of Children & Family Services has information on its website:, where you can find out more about the background checks available to parents under Kieran’s Law.  Among other things, you should be able to obtain criminal background information, as well as Department of Motor Vehicles information.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

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