crimes

Employer Misclassification May Become a Crime

by Fred Abramson on April 29, 2010

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.

4 Ways to Protect Your Small Business from Fraud

by Fred Abramson on March 31, 2010 · 1 comment

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.

Checks

Altered checks is a major problem for businesses. What out for mistakes from payroll companies and bookkeepers.

Owners should:

  • 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.

Owners should:

  • 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.

Fake employees

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.

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The bar is high for Defamation Lawsuits against reviewers on Yelp and “Gripe” sites.

by Fred Abramson on November 3, 2009

Larry David

Image via Wikipedia

Unhappy customers are a fact of life for small businesses.  In the past, if a customer was was not pleased about the Miso Black Cod he would simply kvetch to a hundred of his closest friends and never return (unless he was Larry David).

Web 2.0 has changed the way people complain.  Disgruntled customers now spend their time logging on to Yelp, Facebook and “Gripe” sites to express their feelings to the net citizens of the world.  A  poor review on Yelp could create losses of thousands of dollars.  If the review is defamatory, should you sue?

The New York Law Journal (pay wall) reports that the bar is very high for a company to win a defamation lawsuit against an individual. In Intellectual Art Multimedia v. Milewski, New York Supreme Court Justice Hon. Judith Gische recently ruled against the company in its Internet defamation lawsuit against a customer who posted negative comments on the Rippoff Report.

Intellectual Art runs the Swiss Finance Academy which operates a school of business. It sued a customer for defamation due to a negative review. Here is a sample of the alleged defamatory comments:

  • “[t]hey tell you where the location is then a week before the program starts they change the location and say no refunds whatsoever.”
  • “everything they taught was a “JOKE.”

Judge Gische decided that the “speech [was] merely an alleged statement about [the customer’s] personal opinion about the quality of the services of the plaintiff (Intellectual Art).”  In addition, the judge ruled that on issues dealing with advocating on part of the consumer, courts are reluctant to stifle criticism of goods or services.

Conclusion

Don’t get me wrong,  small businesses can still sue a customer for defamation. If the remarks are more than criticism, contact a lawyer.  However, in this era of transparency, it is much cheaper to engage in business practices that foster trust than to start a  lawsuit.  Use Google Alerts and establish a Twitter account to monitor your brand.  If a customer is unhappy, ask him why. Companies such as Zappos built an empire on listening to their customers through social media.  So should you.

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Internet Defamation Law: Twitter, Facebook and Bloggers.

by Fred Abramson on October 29, 2009 · 2 comments

Internet Defamation Law is becoming an increasingly important problem. Bloggers and anyone else using social media need to be aware of what they post online.  There is a serious threat of what you post can result in litigation.

I recently reported that there has been a 216% increase in libel lawsuits against bloggers.  Courtney Love’s Twitter defamation case is not going away.

Yelp, the popular review site, has been at the center of the debate because people are using the service to write reviews that are untrue.

A $1 million judgment, including an injunction and costs was granted against a defendant who persisted in posting false and defamatory statements in online forums regarding his fraudulent transactions at the expense of an online company. (thanks @jdtwitt)

How do you know if a statement that is written online rises to the level of  Defamation?

Defamation is an invasion of the interest in reputation and good name of a living person, which holds that person up to hatred, contempt, ridicule, or shunned by others (William Prosser, Law of  Torts 737 (4th ed 1980). You can sue both an individual and a company for defamation. Libel is written defamation, slander is oral.  A defamation claim may also raise the issue of intentional infliction of emotional distress.

Publication: The statement must be disseminated to a third party before a lawsuit can be commenced.  What this means is that other people must be aware of the remark before you can claim that someone’s business interests are damaged.

If the conversation is in email form and only the sender and recipient are  involved in the conversation, there is no cause of action.   Section 230 of the Communications Decency Act generally protects online service providers from being sued as a result of defamatory postings by users.

Damages: You must prove that you have been harmed in some way.  There are some cases where you don’t have to prove damages.  They are:

  • any remark about the unchastity of a women (sounds really antiquated)
  • imputation of a crime or of a loathsome disease
  • any statement about that person that affects his or her business reputation.

Before you race over to my office, you need to consider the following  issues to assess whether there are any defenses :

  • Is the work a parody? “Fake” Web sites and social media profiles appear to be a developing trend.
  • Is the person a alive, a public figure, private person or politician?
  • Is there anyone else objected to the post?
  • Are the statements made wrong?
  • Has anyone changed any of the content?
  • Is the statement or any of the alleged remarks true?
  • Is the remark accurate?
  • Has the publisher of the statement checked whether the remark was accurate?
  • When was the statement made? You must be aware of the statute of limitations.
  • Does the person who you would like to sue have insurance?  Without a deep pocket, your judgment is worthless.

What should you to protect yourself from Defamation lawsuits if you are a blogger?

If you are a content provider or blogger, you may find yourself facing a defamation lawsuit even if you did not write the remark.  For example, you may be liable for not reviewing the material posted on your site.  I would recommend that you purchase  E&O insurance.  You should also check your homeowners insurance policy, as many policies provide  coverage for defamation related lawsuits.

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