News and Articles

Legal Update - March 2019 Newsletter

David Lloyd - Friday, March 08, 2019

Dear valued clients and supporters: This month's newsletter will focus on 1) new guidance issued on discrimination based on hairstyle in NYC; 2) possible legislation in NYC impacting fast food employers and employees; and 3) immigration status and employment law.

Hairstyle Discrimination Banned in NYC
In February 2019, the New York City Commission on Human Rights issued groundbreaking legal guidance advising that employers who have restrictive hairstyle policies are likely violating New York City Human Rights Law's protections against discrimination in the workplace. In conjunction with presenting extensive background information and context, the Commission explained that hairstyle restrictions had a disproportionate impact on non-white ethnic groups who are often required to go so far as to manipulate the natural condition of their hair to be in compliance with work place policies. Extensive guidance is now available on the Commission's website and employers are advised to amend any existing policies accordingly.

 

Possible protections from termination for fast-food employees
New York City Council introduced a new bill in February which, if passed, will prohibit a fast food employer from laying off an employee without a bona fide economic reason. The legislation defines a “bona fide economic reason” as the full or partial closing of operations or technological or organizational changes to the business resulting in the reduction in the volume of production, sales, or profit. If an employer has a “bona fide economic reason” for a layoff, the layoff must be conducted on a “last in, first out” basis — in reverse order of seniority according to the length of service of employees in the establishment where the termination is to occur. Employees senior in length of service must be retained the longest and reinstated first. The bill specifies how to compute the length of service and accounts for military service, illness, and other absences. This proposed bill will significantly change the "at-will" doctrine, which currently governs the employer-employee relationship in the fast-food industry. We will continue tracking this bill and provide additional details and guidance as it makes its way through the legislative process.

 

Immigration Status and Employment Law
Many employees who work in the US on a variety of visas often have questions about the impact their immigration status may have on their rights as employees. To address some of these issues, we co-authored an article with our colleague Steve Maggi, Esq (an immigration attorney). We encourage our readers, especially those who are working in the US on a visa or employers who frequently hire foreign workers, to read this article which is now available on our website.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Immigration Status and Employment Laws in New York

Yogi Patel - Wednesday, February 27, 2019

 

Foreign workers in the U.S. occupy every position from farmhand and dishwasher to engineer, doctor and CEO, and their visas and legal statuses also vary greatly. For the majority of the twelve-plus million undocumented immigrants, there is no such thing as legal employment, and therefore employers are not supposed to hire them at all. As we all know, this invisible working class drives the service and agricultural industries and exploitation of these workers is integral to expanding the profit margins for many U.S. employers. It is the employers who are at-risk in these cases, as they are not complying with the federal government’s E-verify program, which requires that they confirm work eligibility before they hire foreign workers. Workers in these cases have very limited rights. Their employment is generally “at-will”, however, despite this status (which is discussed in more detail below), employees are still protected by labor laws in most states. As an example, irrespective of your immigration status, an employee that is not paid overtime can assert a claim under state and federal law for under payment or non-payment.

Further across the spectrum between undocumented foreign workers and dual nationals (foreign nationals who also become U.S. citizens), there are workers with temporary work visas, from the seasonal workers on H-2B visas to the E-1/E-2, H-1B, P and L visas, who are generally bound to one employer which sponsors them and have limits on their duration (from several months up to 5, 6 or 7 years, depending on the visa). What is complicated with these visas is if the employees are laid off, there may not be a grace period to seek new employment and thus maintain legal status, and they be forced to leave the country. O-1 visa holders may have agent sponsors which allows them to work more independently, and can change sponsors for future renewals.

Spouses of E and L visa holders can get employment authorization documents (EADs) which allow them to get lawful employment with any company, but the length of the EADs is tied to the duration of their spouse’s legal status. H-1 and O-1 spouses are ineligible for EADs. Once a foreign national obtains legal permanent residence or U.S. citizenship, they cannot lose this legal status if they lose their job. So how does all this fit in with employment laws?
The majority of workers in New York, and the United States in general, are subject to the at-will employment doctrine. This judicially created at-will rule to employment law states, "where an employment is for an indefinite term it is presumed to be a hiring at-will which may be freely terminated by either party, at any time, for any reason, or for no reason." The at-will doctrine has been entrenched in employment law for almost a century and a half and the most practical effect of it is that American employees are subject to being freely terminated for any reason, or for no reason at all - provided that the termination is not for a discriminatory reason. Therefore, an employer can terminate an employee simply because they do not like the color of an employee’s shirt, however, the employer cannot terminate an employee because of the employee’s race, national origin, religion, disability, pregnancy and other enumerated protected categories under city, state and federal law.

The at-will rule is viewed as an equitable approach to employment termination decisions. The rationale is that because it grants the employer the right to terminate, at any time, for any reason - it also provides the employee with that same right; accordingly, an at-will employee has the right to quit, at any time, for any reason.

There are some narrow exceptions to this judicially created rule in New York. The first exception is the "handbook exception” which stands for the proposition that an employer could still be liable for arbitrarily discharging an employee if the employee can establish that the employer had a written policy limiting its right of discharge, which the employee was both aware of and relied detrimentally on in accepting the employment. Therefore, language in an employment contract or employee handbook could impact the at-will doctrine. The second exception is a narrow professional exception that applies only to members of the New York State bar (attorneys) that are involved in reporting misconduct that is mandated by the Code of Professional Responsibility. The third and last exception was promulgated by the New York State Legislature and is known as the "whistleblower exception." The "whistleblower exception" has been interpreted, by New York's highest court, to protect only those employees who report violations that endanger public health or safety.

Thus, short of these three narrow exceptions, the doctrine of at-will employment governs the relationship between employers and employees in New York State and an employer can terminate an employee for any reason or no reason, provided it is not for a discriminatory reason.

For more questions regarding employment law please contact Yogi Patel, Esq., at yp@lloydpatel.com. For any immigration questions please contact Steve Maggi, Esq., at smaggi@smalawyers.com.

 


Legal Update - January 2019 Newsletter

Yogi Patel - Monday, January 07, 2019

Dear valued clients and supporters: Happy New Year! As we begin 2019, this month's newsletter will highlight several changes and updates in laws impacting both employees and employers:

New York Paid Family Leave

2018 was the first year nearly all New Yorkers became entitled to paid family leave and most private employers with one or more employees were required to obtain Paid Family Leave insurance. These benefits are set to increase in 2019. As of January 1, 2019, employees will be entitled to take 10 weeks of paid leave while receiving 55% of their average weekly salary or the New York State average weekly wage, whichever is lower. The benefits will continue to increase annually until 2021. Employers are advised to ensure that this insurance is added as a rider on an existing disability insurance policy and for employers that are self-insured for disability, a separate Paid Family Leave policy is purchased or an application to the NYS Workers’ Compensation Board to self-insure is submitted.

Mandatory Use of Paid Time Off

One potential issue related to paid family leave that appears to be unsettled is whether or not an employer who is subject to the Family and Medical Leave Act ("FMLA") may require an employee to use their accrued paid time off, such as vacation days or sick days, while the employee is also on a paid family leave ("PFL"). State law generally prohibits employers from requiring employees to use their paid time off while on a PFL, however, this restriction does not apply where the FMLA leave and PFL are taken concurrently. Instead, state law defers to FMLA's rules, which generally do permit employers to require employees to use their accrued paid time off during an unpaid leave. The unsettled question here is that given PFL is a paid leave, whether or not it will be treated like other paid leaves under FMLA's rules, where employers may not mandate the use of accrued paid time off. Employers are cautioned to speak with counsel before implementing their policies.

Suffolk County Salary Inquiry Ban

Suffolk County is set to join the tide of jurisdictions banning questions by employers regarding prospective employees' salary histories. The Local Law to Restrict Information Regarding Salary and Earnings, also known as the RISE Act, will make it an unlawful discriminatory practice for an employer or employment agency to ask about a candidate's salary history. Further, it will also be prohibited to consider an applicant's salary, benefits, and other remuneration history in determining his or her compensation, even where such information is offered voluntarily. The Suffolk County Human Rights Commission will be authorized to impose fines of up to $50,000 for violations of the RISE Act and $100,000 where such violations are willful, wanton, or malicious. The RISE Act takes effect June 30, 2019.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - December 2018 Newsletter

Yogi Patel - Monday, December 03, 2018

Dear valued clients and supporters: This month's newsletter will focus primarily on 1) recent legislation regarding lactation in the workplace and 2) increases to the minimum wage.

New York City Lactation Law Update
The New York City Council recently passed two bills that seek to enhance and protect the rights of lactating employees in the workplace. Both bills were enacted on November 17, 2018 and are set to go into effect on March 18, 2019.

The first bill, Int. No. 879-A, will require employers with 4 or more employees to provide a lactation room and refrigerator for the storage of breast milk within a "reasonable proximity" to the employee's work area. A lactation room is defined as a "sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion and that includes at a minimum an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water." While the room does not have to be solely designated for lactation purposes, it must exclusively be used as a lactation room while an employee is expressing milk and employers must notify other employees as to when the room is being used exclusively for the expression of milk. Should the provision of a lactation room pose an undue hardship on an employer, the employer must engage in a cooperative dialogue with the lactating employee to determine what alternative reasonable accommodation might be made available.

The second bill, Int. No. 905-A, will require covered employers to have a written lactation room accommodation policy that meets specific requirements.

New York State Minimum Wage Increases
Wages across New York State are set to increase again on December 31, 2018. Employers in New York City with more than 11 employee will be required to pay a minimum wage of $15.00 per hour and NYC employers with 10 or fewer employers will have to pay an hourly rate of $13.50. Employers in Long Island and Westchester will have to pay employees at least $12.00, while employers in the rest of the state will have to pay a minimum hourly rate of $11.10. In the fast food industry, employees in New York City will be entitled to an hourly rate of $15.00, while employees the rest of the state will be paid $12.75.

Wages for tipped workers are also set to increase. NYC employers with 11 or more employees will have to pay at least $10.00 per hour, while the rate will be $9.00 for smaller NYC employers. Long Island and Westchester tipped employees will have to be paid at least $8.00 per hour, while those in the rest of the state must receive at least $7.50. The maximum tip credit each employer may claim is the difference between the applicable general minimum wage and the minimum wage for tipped employees. For example, the general minimum wage for large NYC employers will be $15.00 and the minimum wage for tipped employees will be $10.00, so the maximum tip credit will be $5.00.

 

Finally, we at Lloyd Patel LLP hope you all have a wonderful holiday season and a happy and healthy new year.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - September 2018 Newsletter

Yogi Patel - Friday, September 07, 2018

Dear valued clients and supporters: This month's newsletter will focus primarily on deadlines for employers to comply with recently passed New York State and City laws related to sexual harassment in the workplace.

As of yesterday (September 6, 2018), all New York City employers must display the anti-sexual harassment in the workplace poster published by the New York City Commission on Human Rights (the "Commission"). A copy of the poster can be found here. For now, the poster is only available in English, but employers will be required to display the poster in Spanish once the Commission publishes one. Employers should regularly check with the Commission or their legal counsel to ensure compliance with this requirement.

Likewise, also by September 6, 2018, employers must either provide an anti-sexual harassment factsheet published by the Commission or incorporate its contents into their employee manuals or handbooks. A copy of the factsheet can be found here.

Finally, as we previously reported, by October 9, 2018, all employers in New York State must have in place a sexual harassment policy and must implement sexual harassment training for all employees. Employers are encouraged to ensure that their respective policies and trainings are in compliance with the law and tailored to their specific business needs.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - July 2018 Newsletter

Yogi Patel - Wednesday, July 11, 2018

Dear valued clients and supporters: This month's newsletter will focus on a series of new laws that are set to go into effect today (July 11, 2018) in New York state in response to the #MeToo movement.

As we previously covered in our prior newsletters, the New York State budget for 2019 included provisions aimed at curtailing sexual harassment in the workplace. Among them includes a law that goes into effect today which prohibits employers in New York state from including confidentiality provisions in settlement agreements for sexual harassment complaints, unless keeping the matter confidential is the complainant’s preference. The new law requires a consideration and revocation period, under which the complainant has 21 days to consider whether or not to accept the confidentiality language, and then has seven days to revoke his or her acceptance before the agreement becomes effective. If the complainant chooses to revoke his or her acceptance, the entire agreement is revoked. Employers are also advised that under the Tax Cuts and Jobs Act (signed into law on Dec. 22, 2017), a new Section 162(q) to the Internal Revenue Code was added, which prohibits employers from deducting costs related to sexual harassment settlements that are subject to nondisclosure agreements.

Effective today as well, New York State law now also prohibits mandatory arbitration clauses from applying to claims or allegations of sexual harassment. This prohibition is effective for contracts entered into on or after July 11, 2018.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - May 2018 Newsletter

Yogi Patel - Thursday, May 10, 2018

Dear valued clients and supporters: This month's newsletter will cover 1) new requirements for New York State and City employers related to sexual harassment obligations; and 2) a potential payroll solution to the new federal cap on state and local tax deductions.

New York State Sexual Harassment Law Updates
As part of the 2019 New York State budget, which Governor Cuomo signed into law on April 12, 2019, new requirements and restrictions were implemented in order to further combat incidents of sexual harassment in the workplace. As an initial matter, by October 9, 2018, employers are now required to create a written sexual harassment policy and implement sexual harassment training for their employees. Additionally, effective July 11, 2018, the law will render void any agreement to arbitrate claims of sexual harassment, and confidentiality provisions in sexual harassment settlement agreements will face heightened scrutiny. Specifically, courts will only permit confidentiality provisions where i) it is the complainant's preference; 2) the complainant has been given at least 21 days to consider the agreement; and 3) the complainant is given 7 days to revoke consent to the agreement. Finally, the law extends the scope of sexual harassment protections to hold employers liable if they permit sexual harassment to non-employees.

New York City Sexual Harassment Law Updates
Simultaneously with the new state law requirements, New York City passed the "Stop Sexual Harassment in NYC Act," which also aims to make workplaces safer. Much like the new state provisions, the NYC law requires all employers to provide annual sexual harassment training for employees, though this is not effective until April 1, 2019. The law also expands the statute of limitations period for filing sexual harassment claims - now, complainants will have 3 years to file a complaint with the New York City Commission on Human Rights or to file a private lawsuit in court. In addition, the NYC law requires employers to maintain copies of their sexual harassment policies signed by employees for 3 years and to post educational posters in English and Spanish, which the City is required to create within 120 days of the passing of the law. Employers are encouraged to begin the process of coming into compliance with their new obligations accordingly.

Recent New York Payroll Law
As a work-around to the new federal cap of $10,000 on state and local tax deductions, New York legislatures have created a new optional payroll tax that would shift the state and local tax deductions from individuals who cannot fully take it to businesses that are able to do so. Under the new scheme, employers would be able to deduct the state taxes otherwise owed by an employee via the payroll tax and pay them on the employee's behalf. The result would be less pre-tax income for employees, but significantly greater post-tax income, as the new payroll deduction would be less than what certain employees would save when filing federal taxes. For now, however, many critics of the new law remain skeptical, as the administrative burdens involved may deter many businesses from implementing the new payroll scheme, and some believe that the IRS may challenge the law and invalidate it. Also, because employers would likely reduce an employee's salary to recover the cost of implementing the deduction, many are concerned about the complications this will create, from the potential impact on future social security benefits, to retirement matching plans, to how much an employee pays for healthcare. For now, while this new payroll tax appears to be an innovative work-around, the validity of this law remains to be tested and uncertainty looms around its implementation and consequences.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - March 2018 Newsletter

Yogi Patel - Thursday, March 01, 2018

Dear valued clients and supporters: This month's newsletter will cover 1) Updates to the New York Earned Sick Time Act and 2) A recent Court of Appeals decision on Facebook privacy in the context of litigation.

New York Earned Sick Time Act

Effective May 5, 2018, employees will be entitled to use their paid time off already guaranteed under the current New York Earned Sick Time Act ("NYESTA") when they or a family member is the victim of a family offense, sexual offense, stalking, or human trafficking. The amendments to the NYESTA does not award additional time off - it only expands the reasons for which it can be used. These new entitlements, called "Safe time," include taking time off to obtain services from a domestic violence shelter, rape crisis center, or other shelter service; to participate in safety planning, relocation, or other actions required to ensure the safety of the victim; to meet with an attorney in connection with a family offense, sexual offense, stalking, or human trafficking; to file a complaint with law enforcement; to enroll children in a new school; or to take other actions that may be necessary to address the physical, psychological, or economic health or safety of the employee or family member. Additionally, the definition of "Family Member" will also be expanded to include any individual related by blood and any individual whose close association with the employee is the equivalent of a family relationship. Finally, the short name of the law will be updated to the "Earned Safe and Sick Time Act." Overall, these changes affect nearly all employees in New York City and employers will need to incorporate them into their current policies and procedures.


Facebook Privacy and Litigation

The New York Court of Appeals recently addressed the issue of how much of an individual's Facebook page must be shared with the opposing party in a lawsuit. In Forman v. Henkin, the plaintiff brought a personal injury suit when she suffered serious injuries after falling off a horse owned by the defendant. The plaintiff claimed that her injuries greatly impacted her daily life, which she used to document regularly on her Facebook page, but not longer could because of her injuries. During discovery, the defendant demanded access to the plaintiff's Facebook account, alleging that it would contain pictures and other information relevant to the plaintiff's claims. The plaintiff argued that her account was private and should not be discoverable. New York's highest court in this decision held that courts should require the disclosure of information that is likely to be found on a particular Facebook page that is material and relevant to the claims and injuries at issue in a given case. The Court expressly found that the privacy settings of a Facebook page do not impact this analysis because otherwise an individual could simply set her page to private to avoid discovery. Ultimately, the Court essentially applied traditional principles of discovery in holding that courts should balance requiring the disclosure of that which is necessary with preventing the disclosure of non-relevant materials.

In sum, Facebook users should be warned that regardless of their privacy settings, pictures and other information contained on their pages is discoverable if it is material and necessary to a lawsuit.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - January 2018 Newsletter

Yogi Patel - Tuesday, December 26, 2017

Dear valued clients and supporters: Governor Cuomo has signed an emergency Executive Order that will allow New Yorkers to pre-pay next year’s property taxes this year, before the new tax law takes effect.

This is an opportunity for those with liquidity and expect to pay more than $10,000 towards state and local income, sales and property taxes in 2018 to consider, however, time is of the essence as payments have to be made by December 31. The order authorizes localities to issue warrants for the collection of early property tax payments and to accept partial payment — allowing New Yorkers to pay a portion or all of their 2018 property taxes before the end of the year to keep the deductibility. (https://www.governor.ny.gov/news/governor-cuomo-takes-emergency-executive-action-deliver-property-tax-deductibility-new-yorkers). The Governor's office advises contacting the tax collector for your county for additional information.

Over the coming months, as more clearer details emerge regarding the new tax code, we will provide periodic updates that may impact you personally, professionally and your business.

We wish all of our clients and supporters the best in the coming new year and thank you for your continued trust in our counsel. Happy holiday!

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 


Legal Update - December 2017 Newsletter

Yogi Patel - Friday, December 01, 2017

Dear valued clients and supporters: This month's newsletter will focus on a new law that impacts NYC employers and employees in the fast food and retail industries. The law went into effect on November 26, 2017.

Under the Fair Workweek Law, fast food employees have the right to:


1. Good Faith Estimate of Schedule:
On or before workers’ first day of work, employers must provide written schedules for the first two weeks of work with hours, dates, start and end times of shifts and written “Good Faith Estimates” (days, times, hours, locations you can expect to work during your employment). Employers must provide an updated estimate if the estimate changes.

2. Advanced Notice of Work Schedules:
Employers must give workers their written work schedule at least 14 days before their first shift in the schedule. Schedules must include at least seven calendar days with dates, shift start and end times, and location(s) of all shifts. If the schedule changes, employers must contact all affected workers within 24 hours, or as soon as possible.

3. Priority to Work Newly Available Shifts:
Before hiring a new employee when new shifts become available, employers must advertise shifts to existing workers in NYC first by: 1) posting information at the worksite where the shifts have become available and by directly providing the information to workers electronically, which may include via text or email; 2) giving priority to work open shifts to workers at the worksite where shifts are available; 3) giving shifts to interested workers from other worksites only when no or not enough workers from the worksite accept. Employers can only hire new workers if no current NYC workers accept the shifts by the posted deadline.

4. Consent Plus $100 for “Clopening” Shifts:

Employers cannot schedule workers to work two shifts over two days when the first shift ends a day and when there are less than 11 hours between shifts (a “clopening”) UNLESS workers consent in writing AND are paid a $100 premium to work the shift.

Under the Fair Workweek Law, retail employees have the right to:

 

1. 72 Hours’ Advance Notice of Work Schedule:
Employers must give workers their written work schedule at least 72 hours before the start of the schedule in the way the employer usually contacts workers, which may include via text and email. They must post the schedule at the workplace where all workers can see it. This schedule must include dates, shift start and end times, and location(s) of all shifts in the work schedule. If the schedule is changed, employers must update and repost the schedule and contact all affected workers.

2. No On-call Shifts:
Employers cannot require workers to be ready and available to work at any time the employer demands, regardless of whether workers actually work or report to work; or to “check in” within 72 hours of a scheduled shift to find out if they should report for the shift.

3. No Shift Additions with Less than 72 Hours’ Notice:

If employers want to add time or shifts to your schedule less than 72 hours before the change, workers have the right to accept or decline the change. If workers accept an additional shift, they must do so in writing.

4. No Shift Cancellations with Less than 72 Hours’ Notice:

Employers cannot cancel a shift less than 72 hours before the start of the shift except under the following circumstances: threats to worker safety or employer property, public utility failure, shutdown of public transportation, fire, flood, or other natural disaster, or a government-declared state of emergency. However, workers may trade shifts voluntarily.

 

Employers are advised to tailor their policies accordingly.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 



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