Welcome to the Law Offices of Peter J. Lamont & Associates's Legal & Business Blog. The firm is a top-rated and nationally recognized business and litigation law firm with offices in New Jersey, New York, Colorado, & Puerto Rico. The firm also has affiliated offices throughout the U.S. & Canada.

Sunday, March 1, 2015

Tweet Gets Employee Fired Before She Even Started the Job!

By: Peter J. Lamont, Esq.

In all of my HR seminars I explain the perils of improper social media usage to employers and employees.  Here is yet another example of how NOT to use social media. 

The day before a Texas woman started her new job at Jet's Pizza in Mansfield, Tx, she posted the following tweet, “Ew, I start this F*%#ing A*% job tomorrow” followed by seven “thumbs down” emojis. 

When her soon-to-be boss, Robert Waple, caught wind, he tweeted back, “No you don’t start that FA job today! I just fired you! Good luck with your no-money, no-job life!”

Remember, Federal labor law does give employees (at both union and nonunion shops) the right to use social media to collectively discuss wages and work conditions. But you can still discipline workers who drop such unsolicited e-bombs on your company.

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Wednesday, February 25, 2015

Pro Se Rules May Let You Go It Alone in Court -- But Should You?

By Peter J. Lamont, Esq.

The Latin term “pro se” means “on one’s own behalf,” and many courts have adopted pro se rules allowing individuals to represent themselves in litigation, including appearing in court without a lawyer.

For civil (i.e., non-criminal) cases in federal courts, the right to act pro se is spelled out in §1654 of Title 28 of the United States Code, which allows parties to “plead and conduct their own cases personally or by counsel,” subject to court rules. State rules vary, but nearly all states have similar provisions, often in the state constitution, allowing pro se participation.

The Sixth Amendment, which applies to federal criminal trials, protects the right of accused persons to be informed of the charges against them, to confront witnesses against them, to summon witnesses on their behalf, and to have the assistance of counsel. In the well-known 1963 Supreme Court case of Gideon v. Wainwright, those rights were extended to state courts as a requirement of due process of law, giving indigent criminal defendants the right to have the assistance of counsel.

Far less well-known is a 1975 Supreme Court decision, Faretta v. California, upholding a criminal defendant’s right to mount a pro se defense without the assistance of counsel, as long as that decision is reached intelligently and voluntarily. In the Faretta case, the Supreme Court held California had wrongly forced an accused to accept the services of a public defender, disregarding his request to represent himself without a lawyer.But knowing the right exists doesn’t tell you whether it’s a good idea to exercise it. Here’s some basic advice on factors to consider in deciding whether to represent yourself in a lawsuit or criminal proceeding.

The importance of the interests involved: The larger the stakes -- as in criminal cases where your good name, employment prospects or even your liberty may be at risk – the more important it is to make sure you have the strongest possible defense. Similarly, when your case involves significant amounts of property or potential damages, not having expert legal advice increases what you can lose by handling your own case (while at the same time increasing your chances of finding lawyers willing to take on your case for a share of any eventual gains).

The complexity of the case: Pro se plaintiffs and defendants often appear in small-claims cases, which handle lower-value claims and often have simplified rules. Similarly, in uncontested divorce proceedings without complex property division, spouse support or child custody issues, often neither spouse obtains legal counsel.

Your ability to find, grasp and follow rules: Taking on responsibility for handling your own case will require understanding and following numerous procedural rules. For example, statute of limitation rules set firm deadliness for bringing a lawsuit; miss the deadline and your lawsuit becomes a non-starter. Court personnel can provide rudimentary information, but are forbidden to give you legal advice. Likewise, your case can be lost if you fail to respond to court filings in the allotted time.

Your ability to stay focused and deal with the stress: If your picture of legal proceedings comes only from TV shows like People’s Court or Judge Judy, you may think that being in a lawsuit just requires you to be able to shout louder and longer than your opponent. But to be effective, you’ll need to be able to present your case clearly and persuasively. You won’t accomplish that if you can’t maintain your composure. That’s also true when it comes to negotiating with the opposing side, and all the other out-of-courtroom parts of a lawsuit that don’t turn up on your TV set.Even if you decide to represent yourself, it could very well be advisable to consult with an experienced attorney, to get some grounding in the legal issues and potential options in your case.

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.© 2010-2015, Law Offices of Peter J. Lamont & Associates. 

This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Thursday, February 19, 2015

Business Book Review: It's Your Ship - Peter J. Lamont, Esq.

It's Your Ship: Management Techniques from the Best Damn Ship in the Navy By: D. Michael Abrashoff

Book Review by Peter J. Lamont, Esq.
PJLLAW Rating: 5 out of 5




Download It's Your Ship FREE from Audible!
Go to www.audibletrial.com/utlradio.com

The story of Captain D. Michael Abrashoff and his command of U.S.S. Benfold has become legendary inside and outside the Navy. Now Abrashoff offers this fascinating tale of top-down change for anyone trying to navigate today's uncertain business seas.

To Listen to Utlradio Interview with Captain Abrashoff click http://www.blogtalkradio.com/understandingthelaw/2014/12/11/utlradiocom-understanding-business--special-guest-capt-michael-abrashoff

http://www.utlradio.com
http://www.peterlamontesq.com

Sunday, February 15, 2015

Pluses and Potential Pitfalls of Employee Social Media Policies

By: Peter J. Lamont, Esq.

Part of today’s workforce cannot remember a time the Internet wasn’t part of their lives. So it’s probably inevitable when they’re chatting, blogging or otherwise sharing their thoughts with acquaintances or the world at large, their workplace is among the subjects they discuss. Unless you mistakenly believe there’s no such thing as bad publicity, your business probably has adopted, or at least considered, policies on its employees’ use of social media. After all, you’ve invested effort and money building the good name of your business, so you have good reasons not to want your workers engaged in loose or harmful social media chat about it.

The same probably holds true for protecting other facets of your business – customer lists, trade secrets, promoting regulatory compliance, and preventing abuse of co-workers or customers via the social media. Effective social media policies can set useful rules, and even provide defenses to employers disciplining workers engaged in actions harmful to the company. At the same time, it has become much more difficult to craft an employee social media policy that will hold up under increasingly common challenges. The main reason has been an increasingly activist National Labor Relations Board (NLRB), which has moved against the social media policies of numerous employers, claiming they interfere with workers’ rights.

Section 7 of the National Labor Relations Act gives workers, in union and non-union workplaces, the right to engage in “concerted activities,” whether for collective bargaining or other mutual protection or assistance efforts. In the NLRB’s very broad and recently expanded view, this covers just about any action by one worker on behalf of employee interests, and interactions between two or more workers related to pay or job conditions.

On this basis, the NLRB has responded to worker or union complaints by striking down as unfair labor practices workplace rules against such things as discussing pay rates, disclosing information that was “confidential,” “sensitive” or “embarrassing” (too overbroad), using social media while at work (for failing to differentiate between time on duty and break times), and much more.

While some employee actions on social media can still be barred – for example, defamation, disclosure of trade secrets, purely individual issues – crafting such restrictions requires great precision and clarity. That’s because the NLRB judges employer-imposed restrictions not on what they say, but on what employees would likely take them to mean (any ambiguity in the wording is construed against the employer).

So the NLRB can disallow a social media policy not just for explicitly restraining employees’ Section 7 rights (for example, a “never-disparage-the-company” rule, or one adopted in response to a unionization campaign), but also any rule, no matter how neutrally expressed, that the agency feels would likely restrict employee exercise of those rights.

In another recent, controversial move, the NLRB has voted 3-2 to reverse an earlier rule that employers need not make available their internal communications -- including their email systems -- to unionization campaigns. Like a welter of other NLRB decisions and advisory statements on employer social media policies, this demonstrates the need for employers who already have adopted policies in the area to stay apprised on the many changes in this rapidly-shifting area.

As complex as federal interpretations and requirements can be, they are not the only legal hurdle for company social media policies. An increasing number of states, currently around 20, have adopted laws in the area to do such things as forbid employers and their agents from requiring employees or job applicants to disclose their personal Internet accounts or passwords, with certain exceptions. 

The key lesson for employers: as social media becomes more significant, you need to find ways to protect your legitimate business interests without running afoul of the many pitfalls for the uninformed or unwary. A skilled, experienced business attorney can play a major role in helping you achieve that result.

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Saturday, February 14, 2015

A Useful Employee Manual Isn’t Automatic

By: Peter J. Lamont, Esq.

In a new business’s early days, time and money may be tight. Only the most important or urgent tasks usually win the fight for funds and management attention. So when it’s time to develop an employee manual, cutting corners may be tempting. After all, on the Internet you can find manuals from actual companies, free or low-cost ready-made handbooks, and manual templates for do-it-yourselfers. 
But that’s not as good an idea as it might seem. 

Even if you plan to start with a draft of your own (or of someone else’s you found on the Internet), you should ask an experienced business lawyer to review it carefully, and listen carefully to the comments and suggestions you get. That’s because writing an employee manual that prevents problems, rather than causes new ones, is far from a simple task. Why bother to develop an employee manual for your new business? 


In part, because it’s an important way to communicate with new workers and to document for your entire workforce significant policies and procedures your company follows, and to address your expectations of them, and manage their expectations of you. Also, depending on the size, type and location of your business, you may be required under any number of federal, state and local laws to deliver specific information to your workforce on their rights and your responsibilities. Further, your company’s adopting and distributing to workers an acceptable policy statement can be a valuable part of your defense if the company is ever accused of a violation. 


So maybe just find another company’s employee manual and replace its name with yours? Well, suppose you had an up-to-date copy of Google’s employee manual: think it would be a good model? A good fit in type and scope of operations, compensation and benefits, and so on? Even if you could lay hands on the manual used by your closest competitor in your industry, would you feel comfortable adopting all its practices and values, without first undertaking a careful review? 


In the first place, your company has made choices in how it operates, and your employee manual needs to reflect them. In addition, if you think that things change rapidly in your industry, that’s nothing compared to the pace and size of changes in the legal and governmental issues you may want to, or have to, address. True, you can find forms and model statements, especially for the widest-ranging laws. But the more specialized, complex or local the mandate, the harder it will be to rely on the accuracy and applicability of what you find. 


There’s also more to why you need to have an experienced business lawyer help you customize your employee manual to the needs of your particular business: a minor-seeming difference in the language you use can have far-reaching effects.For example, consider the employment-at-will doctrine. In states where it’s in force, employers are generally free to hire or fire workers for any lawful reason. But you could lose that ability, or at least have to litigate it, if your employee manual does not carefully disclaim that providing an employee with a copy of the employee manual has any effect on the employment-at-will doctrine. Similarly, other innocuous-seeming wording can spell unwanted and expensive trouble with aggressive agencies. 



As I’ll discuss in my next article, employers whose workers use social media must be very careful in setting their policies in that area, to avoid the National Labor Relations Board coming after the employer. So get the advice and help of an experienced business lawyer before you adopt an employee manual, and at regular intervals to keep it current.


If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.



Monday, February 2, 2015

In this Video Business Attorney Peter Lamont Answers the question: Is it Illegal for an Employer to Talk to an Employee about his Accent?




In this video business attorney Peter J. Lamont talks about national origin discrimination and the 3rd Circuit Court of Appeals decision in Park v. U.S. Dept of Veterans Affairs. Here is what employers and employees need to know about national origin discrimination. For more information please check out: http://www.topbusinesslaw.com/2015/01/did-you-know-that-comments-on-accent.html


If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Saturday, January 31, 2015

Don't Count on Attorney's Fees Even if You Win Your Case


It can be frustrating to have to defend your company or business against what you consider frivolous legal claims by employees. Unfortunately, that’s just another cost of doing business.

As the following case shows, even when you win the case and thought it should never have been filed, you probably won’t persuade a court to penalize the employee by having him pay your legal fees.

A Texas county’s collective bargaining agreement specified that qualified applicants could bid on promotion opportunities and the most senior employee would be awarded the job.

Carry, a municipal trash collector and a member of the county’s union, applied for a promotion to a different city job. While he technically was the most senior worker who applied, he also had a terrible attendance record and had come close to being fired because of it.

A different employee was selected. Carry sued, alleging breach of contract.
The county argued that while Carry was technically qualified, it wasn’t limited to considering just experience; it could also consider other factors like reliability. The court tossed out the case after agreeing with the employer’s definition of “qualified.”

The county asked that Carry be forced to pay for its attorneys’ fees, arguing that it had expended time and money defending against a frivolous claim.
The court refused to make Carry pay. It reasoned that while his claim wasn’t a winning one, it wasn’t entirely frivolous. (Amos v. City of Mon­ roe, No. 14-30780, 5th Cir., 2014)

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Can You Fire Violent Workers Even if Criminal Charges are Dropped or if You Were Wrong?

Can you fire an employee for reported violent or hostile behavior even if they were not convicted of a crime? What if the police drop the charges? What if you were wrong? 

Well, as long as you have an honest belief that the worker broke company conduct rules you can - even if you are wrong. 

In a recent case,  LaShaunda, a U.S. Postal Ser­­vice custodian, was romantically involved with a co-worker. When the co-worker broke it off, LaShaunda became upset. The two argued in the parking lot and continued their argument down the road.

According to the police, LaShaunda physically assaulted the co-worker and spat on his car. She then sent him text messages suggesting she was going to kill him. She was arrested. When her boss found out, LaShaunda was fired.

Eventually, charges were dropped. LaShaunda sued and argued her co-worker should have been fired, too.

But the court said it didn’t matter that she wasn’t prosecuted or that the co-worker might have played more than the innocent victim. What mattered was that the supervisor honestly believed LaShaunda had violated workplace rules against threats and violence. (McDaniel v. Donahoe, No. 12-CV-054944, ED CA, 2014)

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
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