You probably spend much of your time at work in front of a computer. When you are on the run, you use your Blackberry or iPhone for both work and pleasure. But who owns the data that is created, viewed and stored while working?
If you work in New York for a private company, you have a reasonable expectation of privacy for your electronic devices, work computers and cellphones. This is especially the case when the company that you work for does not have a policy regarding internet usage. As a result, I have been advising companies to cover their bases by clearly and specifically drafting internet usage policies that explains their employees expectation of privacy.
Restrictive internet usage policies usually include the following:
- All the data that is stored on work computers is company property;
- Employee’s have no expectation of privacy;
- The Employer may monitor its employees computer usage without their knowledge.
The law regarding restrictive internet usage policies have been looked at with increasing scrutiny by the courts. For example, a recent court ruling did not allow an employer to access the Hotmail account of its employee.
Despite a written internet usage policy, employers are not immune from potential lawsuits from employees. Listed below are restrictions that employers should be aware of:
- PRIVILEGED DISCUSSIONS. Discussions regarding attorney-client communications may continue to be privileged. If an employee is using the internet for legally permitted employee, like union organizing her communications may be privileged.
- DISCRIMINATION. Be aware that you cannot treat your employees differently while monitoring their computer usage.
- ACCESSING PRIVATE ACCOUNTS. You cannot access your employee’s Twitter account simply because they accessed their account at work.
- NEW YORK STATE LAW. Believe it or not, New York State does not have an invasion of privacy law. Be aware that you cannot fire an employee simply because she tweets.
Be aware that case law is changing on this subject. As a word of caution, use your common sense and think about the golden rule.
For more reading: Who Owns all the data in the Workplace
If you have any questions about who owns your data at work, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.
I have written extensively about the potential problems employers can have by misclassifying their workers as employees. The IRS has been cracking down on companies that try to pass off regular employees as independent contractors. It now may become a crime.
Congress is about to act on a bill entitled the Employee Misclassification Prevention Act that would impose criminal penalties on companies that misclassify workers. It appears that both the House and Senate is behind the bill, so it is likely to become law.
If this new law is passed, it would impose finds of $5,000.00 for each worker that is misclassified as an independent contractor. According to the American Bar Association Journal, the new law would also require employers to provide new hires with notice concerning their rights
There is an excellent and lengthy article on the subject by the large law firm Pepper Hamilton, LLP.
The new law is a natural progression of the Obama administration focus on cracking down on employers who improperly classify employees as independent contractors.
I would suggest that companies review all of their employment classifications to avoid potential criminal liability. You may be able to minimize the risk to your company by:
- Wholesale review of all of your workers.
- Restructuring the relationship that you have with your independent contractors that fall within a gray area of the law by re-classifying them as employees. I would suggest that you should err on the side of caution and classify your workers as employees if you are not sure.
- Draft written agreements with all of your workers stating their employment status.
- If you want to limit the workers that you classify as employees, you may have a third-party such as a staffing agency performing the hiring.
If you have any questions regarding independent contractor agreements or classification of employees, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.
Fraud is not limited to the Bernie Madoff’s of the world. Because of the recession, it should come to no surprise to learn that financial problems are more likely to lead to more fraud.
Fraud is a huge problem. According to the Association of Fraud Examiners 2008 report on occupational fraud and abuse, companies lose 7 percent of annual revenue due to this problem. The report also indicates that small businesses are more likely to be victimsthan large companies.
Small businesses are having more difficulty with fraud not only because employees have an increased workload, but also because they have less resources to stop it.
Generally fraud occurs in four primary areas. I will provide a brief overview and let you know of ways that you can help limit your company from being a victim.
Altered checks is a major problem for businesses. What out for mistakes from payroll companies and bookkeepers.
- limit the use of rubber stamps
- have an outside accountant check your books monthly
Fraud to order
Employees can make fake orders. Check inventory to see if anything is missing.
- Conduct surprise audits
- limit access to cash
- install security cameras
Encourage employees to report Fraud
According the ACFE study, most fraud was uncovered by co-workers.
- Encourage tips and make sure they reach you.
- Make it easy for an employee to report the problem anonymously.
This fraud is especially prevelent in the construction industry. A foreman on a construction site mays say has ten employees and he really has 9. He collects the 10th paycheck for himself. You can avoid this by:
- handing paycheck personally
- create a computer program to detect missing hours.
If you or your company is a victim of fraud, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.
Wage Garnishment is a very powerful tool for either the government (most commonly the IRS), a company or an individual to collect money damages. If you are a plaintiff in a civil action, if you obtain a judgment you may be able to have the sheriff garnish the wages of the person you are suing.
If your wages have been garnished, the court has the final say on how much money can be withheld from your paycheck. Your employer is powerless to stop your wages from being withheld.
What to do if you do not believe that you owe the money?
- Go to the court clerk’s office in the county where the judgment has been entered. In the file there must be an affidavit of service. The affidavit of service will state the manner in which the lawsuit was served upon you. In New York Civil Court, after a judgment has been entered, the plaintiff is required to file a notice of entry and an affidavit of non-military service. The court protects people serving in the military from being subject to a lawsuit while on active duty abroad.
- If you have not been properly served and you have a valid defense to the underlying action, you may make a motion to vacate default. In addition, you may make an order to show cause to have the wage garnishment removed. It is not uncommon for some law firms to use process servers who “sewer serve.” I reported about this issue a few months back, where American Legal Service was accused by the Attorney General of sewer serving.
- Once in court, the judge may schedule a traverse hearing where the judge will determine whether service of process was proper.
- You also need to move for a motion to vacate default within one year of the judgment being entered.
What should you do if you want to garnish someone’s wages?
- Perform case investigation before starting your lawsuit. If the person you are suing is insolvent, it may not be worth the expense of starting an action against him or his company.
- You must obtain a court order. If you are owed money, in New York you may commence in action in either Small Claim, Civil Court, Supreme Court or Federal Court. The court where you start your lawsuit is dependent among a variety of factors.
- You must then enter judgement with the court. Be aware that in most cases you can recover costs of the action.
- Obtain the name of the employer.
- Bring the judgement to the sheriff. The sheriff will garnish the wages.
The Law Office of Frederic R. Abramson practices civil litigation in New York State. If you have any questions regarding wage garnishment, contact me at 212-233-0666.