NY Legal Protection For Employees With Disabilities In New York

As part of our ongoing series of postings bringing awareness to certain laws every New York business owner must know, we bring your attention to laws that protect employees with disabilities. (For other stories in this series, you can read our posts about best practices to avoid age discrimination and New York’s new laws involving family and medical leave.) The Americans with Disabilities Act requires employers in many cases to provide a “reasonable accommodation” to employees with disabilities.  The law, as amended by the ADA Amendments Act, protects employees from job discrimination based on: Physical or mental disability; Recorded history of disability or impairment; or A substantial impairment that limits a major life activity (defined in the law as hearing, seeing, speaking, walking, breathing and many other manual tasks – broadly defined). Having a disability covers only half of the standard.  Employees making a discrimination claim based upon ADA must also

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New York Defamation Law: Yelp Alerts Reviewers To Business’s “Questionable Legal Threats” In Response To Negative Reviews

Some New York businesses, including a New York dentist, have been turning to litigation to respond to negative reviews left about their businesses on the popular website, Yelp. Yelp is a website that crowd-sources recommendations and reviews of local businesses. Many businesses see an increase in business activity based upon positive reviews and recommendations left on the website, while others believe that their business good-will and reputation are harmed by negative reviews that may or may not be accurate. Buzzfeed recounts the story of a New York dentist that has sued at least three negative reviewers for speaking their mind about the services provided by this business. The increase in such activity has led Yelp to alert reviewers to businesses who make, in Yelp’s words, “questionable legal threats” against reviewers speaking their mind. The story also states that Congress is currently considering bills designed to protect consumers from such lawsuits based

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Liability of New York Shareholders for Unpaid Debt of a New York Company

If you reside in New York or wish to run a business in New York , it may be convenient to incorporate a business in New York. But before you do so, you should know a major disadvantage of incorporating a business in New York. Business owners tend to desire the protection that incorporation gives to its shareholders’ personal assets. But you should know of a significant exception to that rule in New York. Under N.Y. Business Corporation Law § 630, the ten largest shareholders in any non-public company can be held liable for wage claims made by corporate employees. This includes salaries, overtime, vacation, holiday, severance pay and a whole host of other types of pay. To compound matters, liability under this law is “joint and several,” meaning that a claimant can enforce a judgment against just one of the ten largest shareholders, who would then have to seek

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Franchisors Filing of NYS Tax Documents

With the new year fast approaching, franchisors in New York should begin focusing on updating their franchise disclosure documents, renewing their franchise registrations and preparing their New York state tax filing documents. Tax Filing Obligations of Franchisors in New York New York reporting requirement applies where the franchisor-franchisee relationship falls within the broad franchise definition under the New York franchise statute. The statute was created so that New York tax authorities can verify state tax filings submitted by New York franchisees so that the franchisor’s filing matches what the franchisee disclosed. Franchisors in New York that have at least one franchisee doing business in New York are required to register as a sales tax vendor and must file information returns with the New York State Department of Taxation and Finance. The reporting period is from March 1 to February 28 of the subsequent year – in most cases. The returns

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Successor Liability Pitfalls in New York

When buying or selling a New York business or any of a business’s assets under NY law, potential successor liability of the buyer is of primary concern.  New York Successor Liability Law is complex and the following is, only, intended as a brief overview of the matter. Successor liability in New York is liability that the buyer of a New York company’s assets may have for the liabilities of the seller of those assets performed prior to the purchase.  Essentially, a buyer would be compelled to pay off debt that the seller accumulated prior to completion of the transaction. The general rule in New York is that the buyer of company assets does not assume and is not liable for the seller’s liabilities unless otherwise expressly stated in the asset purchase agreement.  However, exceptions exist. New York Successor Liability Exception to General Rule Express or Implied Assumption by Buyer. This exception

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U.S. Patents for New York businesses

The common types of U.S. patents that are available to innovative New York entrepreneurs seeking to protect their  intellectual property falls into three common categories based on the type of invention in question: design, utility and plant patents. Utility patents are chiefly concerned with how an invention functions.  A utility patent may be applied to a wide range of unique and innovative new products or processes. It prevents others from manufacturing, selling, using or distributing your invention.  Utility patents last for 20 years running from the date that the patent application was filed.  In addition to the initial patent filing fees, inventors must submit maintenance fees throughout the life of the patent in order to keep the patent’s protection. Design patents are any enhancement or adornment applied to an existing item or the design for a new product. It protects the aesthetic appearance and can be issued for the appearance, design,

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NYC Landlords Sue To Overturn Second Year Of Imposed Rent Stabilization Freeze

New York City landlords want the courts to intervene on the rent freeze on rent stabilized units that takes effect for second straight year.  According to the Courthouse News Service, four landlords, Benson Realty LLC, Danielle Realty LLC, Milagros Huertas and Marilyn Percy, and the Rent Stabilization Association, a trade group that represents 25,00 landlords across New York City, filed a petition in Manhattan Supreme Court seeking to overturn an order adopted by the New York City Rent Guidelines Board that freezes rent increases at 0 percent for one-year leases and 2 percent for two-year leases. This is the second year in a row that the freeze has been ordered. The petition claims that the Order in question is “arbitrary and capricious,” as well as “constitutionally dubious” and asks the Court to annul the Order in question, declaring it unconstitutional under the 5th and 14th Amendments, alleging violations of the

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Buying a Business in New York

When buying a business in New York, we recommend a more nuanced approach that contemplates matters beyond a mere cost benefit analysis.  Small businesses are the engine of the American economy.  According to a 2012 Small Business Administration report, small businesses “produced 46 percent of the private non-farm GDP in 2008 (the most recent year for which the source is available), compared with 48 percent in 2002.”  New York is one of the best places to establish a business in many industries, because of its educated labor force, high net worth and business infrastructure. Here are a few of the important steps to consider when buying a New York business. What is the Deal Structure? When buying a NY small business, consider the reason for the purchase. The reasons shall, often, dictate the structure of the purchase and the risks associated with the anticipated deal. What is the primary reason for the

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New York Reverse Mergers Basics

If you are looking to take your New York private business public, consider the benefits and drawbacks of a New York reverse merger.  Often executives and owners of successful New York businesses may wish to capitalize on that success by making shares of the business’s stock available to the public. Having a public company provides additional benefits to businesses, including expansion of business dealings and attracting highly talented hires with offers of stock options.  However, of course risks abound. In a reverse merger in New York, investors of a privately-held company acquire a majority of the shares of a publicly-held “shell company,” which is then merged with the privately-held company.  To consummate the deal, the private company trades shares with a public shell in exchange for the shell company’s stock, transforming the acquiring private company into a public company. An advantage of undertaking a reverse merger is the comparative ease

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Starting a Home-Based Food Business in New York

If you are looking to create a home-based food business in New York, then you should become familiar with what you can and cannot make, as well as other rules and regulations that exist. Before you even think about launching your home-based food business, check with your city or town to see if you will be able to comply with local zoning laws that govern where you can run a business and,thus, if you can run a business from your home. In many cases, there are limitations on the percentage of your square footage within your home that you may dedicate for a home business. There may even be a complete restriction on running certain businesses in your neighborhood. Obviously, this can only be addressed on a case-by-case basis, so consult with an NY attorney before taking any further steps. Also, before you can operate a home-based food business in

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New York Commercial Lease Basics: Negotiate a Good Guy Clause For Your New York Start-Up

New York start-up businesses can negotiate a Good Guy Clause into their NY commercial leases to gain flexibility in terminating leases should things go upside down. A New York Good Guy Clause is commonly used in New York City as a personal guaranty within a commercial lease.  In exchange for a guarantee from the tenant or an affiliate of the tenant to fulfill all obligations under the lease, the commercial NY landlord agrees to allow the New York tenant to terminate the lease early so long as all rent has been paid in full and the tenant gives sufficient notice.  The premises must be delivered “broom-clean” with all possessions and trash removed. Good Guy Clauses in New York may protect both the commercial landlord and tenant.  These clauses protect commercial landlords in New York City because these clauses avoid landlord-tenant litigation and, if there is a party other than the

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Some Uber Drivers May Be Entitled To Unemployment Benefits

An administrative ruling out of New York state found that, under certain conditions, Uber drivers may be entitled to state unemployment benefits. The NYS Department of Labor (DOL) ruled that two Uber drivers were eligible for weekly jobless benefits. This represents the first time that a state government determined that drivers for a ride-sharing company are employees. To date, states have found – and companies like Uber have argued – that drivers for ride-sharing companies were independent contractors who are ineligible for jobless benefits. We here at The New York Law Blog have discussed the differences between an employee and an independent contractor in the context of continuing federal litigation involving Uber. Uber and other ride-sharing companies are part of a larger development in business termed the “gig economy,” which is an environment where independent workers contract for temporary positions for short-term engagements. Uber’s critics have argued for some time that it

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Use A Cease and Desist Letter in New York

Proper use of a cease and desist letter is the first measure a business can take to protect itself from copyright and trademark infringement – as seen in recent news articles.  GiGi New York sent Gigi Hadid and her Tommy Hilfiger collaboration a cease and desist letter because of the similarities in the styling of their name of a new line of clothing called “GiGi,” which GiGi New York believes has the potential for customer confusion between the brands. GiGi New York has owned their trademark, “GiGi New York” for certain leather goods it produces, but only filed an application for the trademark “GiGi” after Hadid’s recent runway show. A cease and desist letter is a tool that businesses use for any number of reasons including to stop harassment, assert ownership rights, or when they just want to formally tell someone to stop doing something harmful to their business. It

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What NY Businesses Should Learn From the United States v. Texas Immigration Decision

The Supreme Court’s decision in United States v. Texas this past June upheld a challenge to a pair of executive orders on immigration. While the political rancor continues on the issue of immigration, especially on the grand stage of election politics, businesses should remain vigilant in the evolution of immigration law on this front. First, businesses are still obligated to use Form I-9 to verify the legal status of new employees even though the form expired.  Noncompliance may lead to monetary penalties up to $16,000 per violation. Second, businesses relying on foreign skilled workers eligible for an H1-B visa should start planning for the next fiscal year – now.  As a result of this Supreme Court decision, the cap on skilled foreign employees remains at 65,000. The USCIS has began accepting H1-B petitions for the 2017 fiscal year, with more than 236,000 petitions filed. Clearly, businesses cannot turn a blind eye

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NLRB Judge Rules Chipotle Is Liable For Labor Violation For Enforcing “Unlawful” Social Media Policy

This week, the National Labor Relations Board (NLRB) ruled that Chipotle Mexican Grill had an “unlawful” social media policy that violated the National Labor Relations Act (NLRA). According to published reports which detail the facts of this particular case, the dispute stems from charges filed on the worker’s behalf by the Pennsylvania Workers Organizing Committee regarding Chipotle’s social media policy and allegations that the employee was wrongfully terminated. Apparently, Chipotle sought to enforce an “oudated” social media policy that was not lawful under the NLRA. This policy had already been replaced, but supervisors sought to enforce the older policy against an employee who made postings on Twitter criticizing his employer about adverse working conditions. Since the outdated policy is what prompted Chipotle to act, the NLRB found that Chipotle was liable for violations that occurred resulting from enforcing that improper policy.   According to the NLRB’s website, the NLRA protects the

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Proposed Change to NYC Hiring Practices Intended To Tackle Wage Inequity

A proposed change to New York City local law seeks to make certain customary hiring practices illegal for employers in New York City. This week, the NYC Office of Public Advocate introduced proposed legislation that would make it illegal for employers to inquire into a job applicant’s wage history during the hiring process.  The bill would prohibit New York City employers or employment agencies from asking about an applicant’s salary history or searching publicly available records or reports for the same. New York City employers would also be prohibited from relying on any such information in determining the compensation package at any stage in the employment process unless the applicant disclosed information willingly and without prompting.  The proposed new New York law would not apply to any actions taken by a NY employer in following any federal, state or local law. Similar legislation recently passed in Massachusetts.  Indeed, the issue has

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COBRA Basics for New York Businesses

To conclude our series on federal laws that every small business owner must know, we discuss an employer’s obligation to provide health insurance under New York law.(For other stories in this series, you can read our posts about best practices to avoid age discrimination, New York’s new laws involving family and medical leave and federal and state protection of employees with disabilities.) Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), employees and their families are protected should they lose employer-sponsored health benefits. In general, most employers with 20 or more “employees” sponsoring health plans on more than 50 percent of its typical business days in the previous calendar year must offer each “qualified beneficiary” who would otherwise lose coverage under the plan because of a “qualifying event” an opportunity to elect continuation of the coverage received immediately before the qualifying event. The definition written above can seem complicated at first because it contains

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Can a Hashtag Be Registered As A Trademark?

Talking to a colleague today, we both came upon an interesting legal question: is a social media hashtag a trademark that one can register? For those who are not familiar with hashtags, it is a word or phrase preceded by a “#” that accompanies text. Hashtags are used to categorize the content of a social media posting on Facebook, Twitter and other platforms, group content together and make social media postings searchable. Businesses use hashtags to promote product and engage audiences throughout social media. Social media platforms have even developed a stream of revenue by allowing businesses and individual to “promote” hashtags and receive preferential listing on their websites. The emergence of social media hashtags has had a huge impact in social media marketing. It is a great way to communicate social media messages, build brand loyalty and associate identifying characteristics with a brand and its audience. According to the

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New NLRB Labor Rules Negatively Impact U.S. Franchises

Revised federal rules from the National Labor Relations Board that give employees more leverage in settling workplace disputes are negatively impacting franchisors and franchisees, leaving them with higher costs and forcing them to scale back plans for future expansion. The new policy adopted by the National Labor Relations Board (NLRB) broadens the circumstances in which two businesses can be deemed as employers of the same pool of workers. This means trouble for fast-food, construction and other industries reliant on contract workers and employees of franchisees, who will now be exposed to increased labor disputes before the NLRB, which adjudicates workplace disputes and oversees union-organizing. The intention behind the NLRB’s revision is to ensure workers can unionize and collectively bargain with businesses that help control their fates.  As things stand now, the NLRB will review “test cases” in the franchising industry to further define what critics have called a vague and

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Filing a DBA Name In New York

If you want to conduct business under a trade name that is different from the name used to form your New York business, then you need to file a DBA, or a “doing business as” name, in New York. DBAs are useful for a number of reasons. They allow a business to open a bank account under a different name. They also allow a business to build a brand or product in a name other than the legal name of the business itself. Perhaps the most well-known example of a company using a “DBA” is Doctor’s Associates Inc., which is doing business under the well-known brand “Subway.” As the story goes, Doctor’s Associates Inc., which derives its name from the principal owner’s initial goal to earn enough money to pay for school tuition, was created for the operations of “Subway.” There are different requirements for different entities wishing to create a

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