SilvermanAcampora Appoints Jim Black To Partner

This week SilvermanAcampora, LLP proudly announces that Jim Black has been elected to Partner of the Firm. Jim has served as counsel to the Firm for almost three years as well as General Counsel to their client, Overseas Military Sales.  He specializes in guiding clients through the legal and procedural minefields that exist when doing business with local, state, and federal governments. Jim’s wealth of experience includes creating export compliance protocols and managing multimillion dollar bid/proposal processes.

Jim guides clients from the initial steps of government requests for information through proposal drafting, to the final contract negotiation and award. With over 25 years of experience, Jim’s gregarious personality and unique achievements as an attorney have enabled him to provide exemplary service to SilvermanAcampora’s clients. Jim is a prime reflection of the Firm’s core philosophy– Character Is Everything©.

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Ellevate Women’s Networking Group Explores Mental Illness

PMP’s Mary Simmons organized an event on understanding Mental Illness for Ellevate Women’s networking group. The topic was very well received. The presenter was Hakeem Rahim who is a national author and speaker on the topic and has testified in front of congress on mental health issues.


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PMP & SilvermanAcampora’s Anti-Sexual Harassment Training To Air on NHK World

Barbara DeMatteo, Director, HR Consulting at PMP and Jim Black Esq. of SilvermanAcampora LLP delivered Anti-Sexual Harassment training to over 60 managers from various companies on Long Island.  As we all know, this is a worldwide issue.  As a result, a crew from the Japanese Broadcasting Corporation (NHK World) arrived from Tokyo to interview Barbara, Jim and a few of the attendees.  Their goal was to understand the U.S. perspective on this topic and what companies are doing to proactively address it.  Keep your eye out as we await the screening of this on NHK World and will share it when it is available.




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Go Red for Women Luncheon in Support of SterlingRisk Insurance  

Keith Frank, Esq. and Christine Wittneben, of SilvermanAcampora LLP, together with their colleague, Rita Distefano, of Portnoy, Messinger, Pearl & Associates, Inc,. support their friends at SterlingRisk Insurance who were honored at the American Heart Associations’ Long Island Go Red for Women Luncheon. Congratulations SterlingRisk!

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You Can’t Say That! Or Can You? How To Handle Political Discussions In The Workplace

Most people will agree talking politics at a dinner party can certainly ruin a dinner party.  As we know political conversations can be disruptive to even the closest friend or family relationships and this is a good reason to avoid these conversations.  Similarly, politics can fracture and divide a workplace creating discord among coworkers who need to rely on one another to perform their jobs effectively.  A casual political discussion can escalate into a shouting match and possibly lead to employees passing judgment of others’ political beliefs and opinions.  Employers should understand that as professionals, neutrality of opinions must be a key strategy to keep politics out of the workplace in order to preserve employee retention, client acquisition, and revenue generation.

Here at PMP, we understand politics is a sore subject that can cause derailing effects to a workplace.  That is why we have created some helpful tips you can adopt to keep political disagreements out of the workplace without running afoul of the law.

Create a “politics-free” code of behavior and communicate the policy to all of your employees:

A provision in an employee handbook detailing a code of behavior can help employees understand what behavior is and is not appropriate for the workplace.  Creating a section in the handbook devoted to politics will eliminate any uncertainty about what the company deems to be acceptable political discourse.  This policy should be formalized in writing and employers should direct managers and supervisors to review it with their direct reports.  What employers must recognize and plan for is that short of an outright ban on non-work talk during working hours, there is nothing they can do to stop political speech.  An employer may not ban non-harassing and non-discriminatory political discussion without also banning discussion of other non-work topics.  Employers must realize a complete ban on non-work talk would be impossible to implement and enforce.  Therefore, employers should make clear political conversations in the workplace can lead to tense and precarious relationships among coworkers, and employees must understand that the stability of the workplace and the company hinges on their acceptance and adherence to the code of behavior.

Target employee disruptions instead of politics:

Even if the company’s handbook contains a strong policy about political talk, these policies will be ineffective if they are not widely known and enforced.  Business owners should ask their supervisors to be vigilant in enforcing the company’s code of behavior governing political discussion and speak with employees who are being too vocal and demonstrative about their political leanings.  Managers and supervisors must be proactive and set a precedent of adherence to the code of behavior by speaking to employees who are being “too open” about their personal political beliefs.

Additionally, it is just as important for managers to know how to conduct themselves as it is for workers.  Employers should instruct their managers and supervisors how to handle a situation where a political discussion is getting heated.  Instead of the manager inserting his or her political opinion and further instigating the political discussion, the manager should stop the conversation by telling the employees they can finish their conversation at another time outside of the workplace.

Be cautious of implicating any protected classes under federal law and protected rights under the National Labor Relations Act:

Federal law does not inherently protect political speech.  However, as a result of the wide range of political issues that often involve race, religion, and sexual orientation, political discussions and disagreements will often touch on these protected categories.  If an employer prohibits a member of a protected class from discussing an issue relevant to them personally this could run afoul of discrimination laws.  .  Employers must enforce and apply the code of behavior equally among all protected classes.  For example, an employer may be subject to a discrimination claim if the employer fires a female employee who supported Trump but not a male employee who did the same.

Similarly, the National Labor Relations Act (NLRA) does not protect political discussion.  Employers must be cognizant of the National Labor Relations Board (NLRB) and must careful not to infringe on rights protected under Section 7 of the NLRA when drafting policies to avoid issues with political speech.

Be sensitive to the potential volatility of the situation:

As a business owner, you should lead by example and demonstrate respect for everyone’s point of view regardless if it is extremely different from your own.  Remember that diversity of opinions in the workplace is a good thing and the main goal is to maintain productivity without allowing political disagreements to undermine your company’s effectiveness and cohesiveness.  In the context of the particular political climate we find ourselves in today, you must realize the importance of keeping politics outside the workplace, because politicians will come and go but your business must survive.

For further discussion or questions, PMP is available to help your business navigate how to keep politics out of your workplace.

Article Prepared By:

Keith Frank, SilvermanAcampora LLP

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Protect Yourself! A Quick Guide To Successful Workplace Investigations

Amid the almost daily media storm on sexual harassment and misconduct in the workplace, employers should take conscious steps to either amend or put in place a comprehensive plan on conducting workplace investigations involving employee misconduct.  As any internal employee complaint of harassment and/or misconduct could one day result in a lawsuit, investigations should be conducted as though its results may one day be an exhibit in a court proceeding.

So, if not now, then when will you ensure your business has an effective procedure to conduct workplace investigations?  Here are some key tips to conducting an internal workplace investigation that can protect your company’s finances and reputation.

  1. Choose the Right Investigatory Team:

Employers can choose to conduct an internal investigation or bring in an outside investigator.  The right choice is fact-sensitive and depends on a multitude of factors.  It might be best to rely on an outside investigator if the complaint is serious.  An employer might also want to bring in an outside investigator if there are specific fact-based allegations that could impose potential legal liability on the business, or if the complaint names an upper level or executive level employee.  Conversely, if the complaint is more routine in nature or includes a lower level employee, an internal investigator may be the right choice for your business.

The investigator must be objective and his/her investigatory integrity must be above reproach and cannot be impeached if the complaint ultimately turns into a lawsuit.

  1. Develop a Plan:

It is important to create a plan with a clearly defined purpose and scope to ensure a thorough and on point investigation.  A well thought-out plan will make sure nothing is overlooked throughout the investigatory process.  A good investigation will be able to answer the following questions:

  • Who will investigate?
  • What is being investigated?
  • Who needs to be interviewed?
  • What evidence should be gathered?
  1. Keep it Confidential:

The employer must take precautions to the best of its ability to protect the confidentiality of the employee.  It should be explained to the complaining party and any other individual involved in the investigation that all information gathered will be kept confidential to the extent possible for a thorough investigation.  By maintaining confidentiality, it is more likely parties will cooperate and remain truthful.

    4.  Act Swiftly:

A thorough and complete investigation can lead to resolution of an employee’s complaint in-house and prevent a lawsuit; however, if that complaint does result in a lawsuit, the quality of the investigation could be dispositive of whether the case turns out in the employer’s favor.  Once a complaint is lodged there should be no delay in initiating an investigation. An employer wants to be able to show that it swiftly took steps to investigate the complaint and that it did not waste time responding to the complaint.  Allow for an adequate period of time to develop an investigative plan, and once developed, the investigation should proceed with all due haste.

  1. Remain Objective and Cautious:

Employers should not take the allegations in a complaint at face value and seek out all sides of the story.  Even if the language in the complaint   includes buzz words that could trigger legal liability such as “harassment”, if true, a closer look at the complaint may very well reveal a benign behavior.  On the other hand, mild language can conceal the worst possible type of harassment. So employers should remain skeptical of the language used in complaints.

It is important to be sure that investigators are mindful of the choice of words chosen in their questions and reports.  Use neutral words such as “conduct” or “behavior” in order to avoid mislabeling an aggressor’s behavior or the victim’s recollection.  The investigator must always be vigilant to ask straightforward questions, act as only a fact-finder, and always remain respectful.

  1. Maintain a Record:

An employer should always handle workplace investigations with the assumption that the complaint will turn into a lawsuit.  Therefore, a clear and accurate report should be created to document every step of the investigation.  A final report of the investigation will summarize the following: the (1) incident investigated; (2) parties involved; (3) key factual and credibility findings; (4) employer policies or guidelines and their applicability to the investigation; (5) specific conclusions; (6) any issues that could not be resolved and the reasons for the lack of resolution; and, (7) any actions the employer has taken as a result of the complaint and investigation. Ultimately, the report will insure that if the investigation were to be reviewed, a person reviewing the report would likely conclude that the employer responded swiftly and appropriately, took the situation seriously, and had a justified reason for any actions taken as a result or during the investigation.

An employer is likely to quell a complainant’s urge to bring a lawsuit if it can demonstrate that a thorough investigation was conducted, a record was made that includes the contents of the complaint and investigation, and the employer has taken steps to resolve the issues in the complaint.


Article Prepared By:

Mark B. Portnoy, Portnoy, Messinger, Pearl & Associates, Inc.

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Time Is Running Out! New Employee Scheduling Regulations Soon To Take Effect

Governor Andrew M. Cuomo announced on November 10, 2017 that the New York Department of Labor (NYSDOL) will advance new regulations that address “just in time”, “call-in”, or “on-call” scheduling.  Various industries have adopted these types of scheduling practices allowing employers to cancel or schedule workers’ shifts merely hours before or even after they start.  These practices often result in workers rushing to find child care or force them to miss important family commitments, classes or appointments.  The new regulations aim to limit an employers’ ability to require an employee to be available to work only if needed, and to either wait to be contacted by the employer or contact the employer to see if they must report to work.  The proposed regulations apply to all industries and occupations that are covered by the Minimum Wage Order for Miscellaneous Industries and Occupations for nonexempt employees.  The proposed regulations will not apply to employees covered by a valid collective bargaining agreement that expressly covers call-in pay.  Once finalized, the regulations will apply statewide.

Under the proposed regulations, employers would be mandated to provide their employees with 14-day advance notice of their schedules.  Employers will be required to pay employees 2 additional hours of call-in pay at the minimum wage rate if the employee is required to work hours that were scheduled less than 14 days before the scheduled time to report.  Additionally, call-in employees must receive four hours of call-in pay: when a shift is cancelled less than 72 hours prior to its start; when the employee is obligated to contact the employer less than 72 hours before the shift to find out if he/she must report for the shift; and, when the employee is required to be on-call to work the shift.

The following are examples of how the proposed regulations would be applied:

  • If an employer sends an employee home after working only 1 hour, then the employer must pay four hours of call-in pay, with the first hour of actual attendance at the employee’s regular rate of pay and 3 additional hours at the minimum wage.
  • If an employee works a shift scheduled less than 14 days in advance, then the employee is entitled to 2 hours of call-in pay at the minimum wage, in addition to the employee’s regular wages earned during the shift.
  • If an employer cancels a shift less than 72 hours before the shift is scheduled to begin, then the employer is required to pay 4 hours of call-in pay at the minimum wage.
  • If an employee is required to be on-call but ends up not working, then the employee must receive 4 hours of call-in pay at the required minimum wage.
  • If an employer asks an employee to call in to check if they are required to work less than 72 hours before a shift begins, then the employer must pay the employee an additional 4 hours of call-in pay at minimum wage in addition to any earned wages.

Employers should take note that call-in pay premiums would not apply in the follow situations:

  • If an employee agrees to volunteer to work a new and additional shift during the first two weeks that the shift is worked.
  • During the first two weeks of employment of a new employee.
  • If an employee requests time off and the employer cancels a shift.
  • If an employer is unable to operate as a result of inclement weather or other emergency conditions, provided that the employer gives 24-hour advance notice of shift cancellations when operations are able to continue but staffing needs are reduced.
  • If an employee chooses to volunteer to cover a coworker’s shift scheduled at least 14 days in advance.
  • Employers should pay attention to these fast approaching regulations.

PMP is here to help your business take the necessary steps to implement the new employee scheduling regulations once finalized.


Article Prepared By:

Haley Trust, SilvermanAcampora


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When Inclement Weather Strikes: How to Pay Your Employees

Q: Must a company pay an hourly, non-exempt employee for the day(s) when the business was closed due to inclement weather?

A: The general rule for non-exempt employees is to pay only for time worked – this is true under federal and state law. A company may require the hourly non-exempt employee to use vacation days. However, it should be noted that New York’s Department of Labor requires employers to pay an employee who reports for work on any day at least four hours (or the number of hours in the employee’s regularly schedule shift, if fewer than four) at minimum wage. If the business was closed and the employer did not notify an employee not to report, he or she is entitled to this minimum amount as “show-up pay”.

Q: Does a company have to pay salaried, exempt employees when the business was closed?

A: The general rule for exempt employees is that an employee who performs any work in a workweek must be paid for the entire week. This includes time spent working remotely from home or another location. Alternatively, if the business was closed for an entire week due to inclement weather, the employer is not required to pay the employee his or her salary that week. Where an employee has any amount of paid time off in his or her “bank”, the employer may apply it to all or part of the missed week, in accordance with a company policy.

Q: If the business re-opens or remains open, and a salaried, exempt employee is unable to make it to work as a result of impassible roads, loss of transportation, etc., may the employer dock his or her pay without jeopardizing the exemption?

A: Typically, yes. However, deductions may be made for full-day absences only. An employee’s inability to report to work due to severe weather or hazardous road conditions is considered to be a “personal reason.” Employers should ensure that the pay of exempt employees who are performing work remotely is not being docked simply because the employee did not report to the office. Therefore, if an exempt employee worked remotely during a workweek, even if only for an hour, his or her pay cannot be docked.

Q: Must a company pay a non-exempt employee overtime for any hours worked in excess of 40 hours if the non-exempt employee is unable to leave the company’s facility due to severe weather and continues to work?

A: Yes. If a non-exempt employee has worked more than 40 hours in a workweek, the employer must pay overtime compensation at time-and-one-half his or her regular rate.

PMP is here to help you navigate the not-so-obvious effects inclement weather has on your business.


Article Prepared By:

Rita Distefano, HR Director Consulting

Rita DeStefano, Director, HR Consulting

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#Be Prepared: New Sexual Harassment Measures to be Implemented in 2018

How exposed is your company? 

Lawmakers in New York and other states are taking up initiatives following in the wake of the multitude of sexual misconduct allegations made against high-profile political and media figures and the ever-growing #MeToo movement. These actions include measures to curb the use of nondisclosure and arbitration agreements in employment contracts and settlement agreements.

Here in New York, new sexual harassment legislation is on the horizon. On January 3, Governor Andrew M. Cuomo announced in his annual State of the State address a new legislative agenda on workplace sexual harassment which will be proposed this year.

Although Cuomo has not disclosed specific legislative language, the sexual harassment legislation will likely void mandatory arbitration policies and clauses included in employment contracts that prevent sexual harassment claims from being considered in law enforcement investigations or during trials. The legislation will mandate that private companies engaging in business with the state annually report the number of sexual harassment violations the company had in addition to any nondisclosure agreements it has executed. Cuomo also proposes his new legislative package will institute a uniform code of sexual harassment policies that would be binding on all branches of state and local government, including a course of action for anonymous whistleblowers to communicate complaints across state and local government without fear of negative consequences or retribution.

In terms of federal law, the Tax Cuts and Jobs Tax Act, signed by President Donald Trump on December 22, 2017, includes a new provision that disallows the tax deduction a company may take if the company settles a sexual harassment or sexual abuse claim and wishes to maintain a nondisclosure agreement of the details. This provision also bars the business deduction taken for attorneys’ fees related to a settlement or payment having to do with a sexual harassment or sexual abuse claim. A business deduction taken in relation to a settlement for a sexual harassment claim may even be disallowed regardless of whether the employer or employee wishes to have a nondisclosure agreement.

Employers should also take note that this new provision may also disallow other deductibles a company may take that are related to the sexual harassment or sexual abuse claim. For example, if the aggressor’s employment is terminated and the employee receives a severance package, the severance package might be non-deductible. If the nondisclosure agreement calls for the employer to take other actions, such as implementing a program to raise awareness of sexual harassment, the cost to implement such a program may also not be deductible.

In light of the proposed legislation coming down the pipeline and the increased scrutiny on harassment in the workplace, it is time for you to ensure your company has taken all appropriate measures to remain compliant. This includes having a harassment and anti-retaliation policy, complaint procedures, and educating your employees. Providing training to management and employees always helps in fostering a tolerant and constructive workplace culture. Please contact us if you have any questions about implementing new sexual harassment measures into your workplace.

Article Prepared By:



Brian Shenker, Labor & Employment Law Attorney

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New Standards Employed by Labor Board Means Good News for Employers

Not sure if you can prohibit photography or curb social media chatter about your company?  We’ve got good news for you!

The National Labor Relations Board (“Board”) has adopted new standards regarding facially neutral workplace rules and the joint employer standard that employers should welcome with open arms.

New Standard to Determine Lawfulness of Facially Neutral Workplace Rules:

The Board has established a new test to evaluate the lawfulness of an employer’s facially neutral workplace policies and rules and whether those rules have a chilling effect on employees’ protected concerted activity. The Board overruled its 2004 Lutheran Heritage-Livonia decision which held employers violated Section 7 of the National Labor Relations Act (NLRA) by having handbook rules and policies that could “reasonably be construed” by an employee to “chill” protected activity under the NLRA. The Lutheran Heritage-Livonia standard has long frustrated employers because the vague standard made it difficult for them to accurately predict whether a policy or rule would pass NLRB muster. Many seemingly benign company policies were struck down as unlawful under this old standard.

Under the new standard in Boeing, the Board will assess facially neutral handbook rules and policies by balancing the extent and nature of the potential impact on NLRA-protected rights against the legitimate justifications put forth by the employer for maintaining the policy or rule.

The Board will classify rules into three categories under the Boeing standard. The first category of workplace rules are those that are always considered lawful. These are rules that when reasonably interpreted do not interfere or prohibit the exercise of NLRA rights, or alternatively, their potential adverse impact on NLRA rights is outweighed by the employer’s justifications for the rule. Rules falling under the second category are sometimes lawful, depending on the circumstances in which the rule is applied. Finally, the third category of workplace rules are unlawful regardless of the specific circumstances since these rules infringe on workers’ protected rights.

The key takeaway for employers is that the Board has explicitly overruled all cases regarding “harmonious interactions and relationships” or “basic standards of civility.” Additionally, other policies included in the handbook, such as protecting the company’s reputation, social media, and restrictions on employee use of cameras, may be retained by the employer with more confidence, so long as they are supported by a legitimate business justification.

Perhaps it’s time to conduct a comprehensive review of your workplace policies and rules to ensure your specific organizational needs are met and comply with legal requirements.  To learn more about compliance audits contact


Article Prepared By:


Keith Frank, Partner, Labor & Employment Law Attorney


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