North America

UPDATE – COBRA Subsidy: DOL Issues Updated Model COBRA Notices and Other Guidance

As we advised you in our Client Alert that was issued on December 24, 2009 (“UPDATE: Cobra Subsidy: What it Means for Employers Now“), President Obama signed into law the Department of Defense Appropriations Act of 2010 (the “Act”), which, among other things, extended and expanded certain provisions of the American Recovery and Reinvestment Act of 2009 (“ARRA”) pertaining to premium assistance for benefits under the Consolidated Budget Reconciliation Act of 1985 (“COBRA”). The Department of Labor (“DOL”) has issued the following updated information, of which we wanted to make you aware:

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MARJORIE SUISMAN NAMED ONE OF BOSTON’S 2010 FIVE STAR WEALTH MANAGERS

February 12, 2010 – Boston, MA
For more information contact: Jeanie Griggs
(617) 589-3895; jgriggs@davismalm.com

Davis, Malm & D’Agostine, P.C. is pleased to announce that Marjorie Suisman was selected as one of Boston’s 2010 FIVE STAR Wealth Managers. Ms. Suisman is featured in the February issue of Boston Magazine. In a survey conducted by Crescendo Business Services by mail and phone, more than 100,000 high net worth residents in the Boston area and subscribers of Boston Magazine, and more than 10,000 financial services industry professionals, were asked to evaluate wealth managers. After a very thorough selection and evaluation process, the resulting list of 2010 FIVE STAR Wealth Managers was chosen by a blue ribbon panel comprised of individuals from within the financial services industry. This elite group represents less than 4% of the wealth managers in the Boston area and only 536 of the top-scoring wealth managers made this year’s list. For more information about the FIVE STAR Award please visit the FIVE STAR website.

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A Benefit for the People of Haiti

If your schedule permits, please join us on March 12, 2010, for an event in Manhattan to raise funds to help the people of Haiti. Daniel Boulud and other chefs will graciously donate delicious treats for all guests to enjoy. The benefit also will feature music, art, and a silent auction. Click here for more information.

Money raised at the event will be given to World Hope International, a faith-based relief and development organization that is deeply committed to the long-term, sustained rebuilding of Haiti after last month’s tragic earthquake.

Please save the date. I hope that you can make it!

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DAVIS MALM ATTORNEY DAVID M. COGLIANO CONDUCTS EMPLOYMENT LAW PROGRAM FOR SBANE

February 11, 2010 – Boston, MA
For more information contact: Jeanie Griggs
(617) 589-3895; jgriggs@davismalm.com

On February 11, Davis Malm attorney David M. Cogliano conducted an employment law program, “2010 Legal Update,” for the Smaller Business Association of New England in Waltham, Massachusetts. David was joined by two other employment attorneys on the panel. The interactive program provided a comprehensive overview of the many employment law changes that came about in 2009 that directly impact employers and their HR practices and the consequences of non-compliance. Specific topics included: the importance of properly classifying workers; utilizing non-compete, non-solicitation and confidentiality agreements; changes to the Americans with Disabilities Act; the use of social media in the workplace; the duty to accommodate persons with disabilities; and the Employee Free Choice Act.

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BC’s 2010 Throne Speech – Untapping BC’s Clean Energy Potential

Today, the Lieutenant-Governor of British Columbia delivered the Speech from the Throne (click to read), which opened the Second Session of the 39th Parliament of British Columbia.

The 2010 Olympics and the economy were principal topics of course, but the BC government’s commitment to revamping the Province’s clean energy industry also featured prominently. Below are some of the highlights from the Speech relevant to the clean energy sector:

  • The BC government will take a fresh look at B.C.’s regulatory regimes, including the BC Utilities Commission.
  • BC can harness [BC’s untapped energy] potential to generate new wealth and new jobs in its communities while it lower greenhouse gas emissions within and beyond our borders.
  • Clean energy is a cornerstone of BC’s Climate Action Plan to reduce greenhouse gas emissions by one‑third by 2020.
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President Obama Backs Department of Labor Misclassification Fight

by Evan J. Spelfogel

February 2010


On February 1, 2010, President Barack Obama released his federal budget for the coming fiscal year, including $117 billion for the United States Department of Labor, of which $25 million was set aside expressly to help the DOL combat employee misclassification. This includes, specifically, identifying and litigating against employers that categorize workers as independent contractors when, in fact, they are employees, and that classify as exempt from overtime those employees who do not meet the requirements of the White Collar Exemptions under Part 541 of the Wage and Hour Regulations.

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BCUC Approves BC Hydro’s $825M Purchase of 1/3 of Waneta Dam

Following up on an earlier blog post, today, the British Columbia Utilities Commission approved BC Hydro’s request to purchase a 1/3 interest of the Waneta Dam from Teck Metals Ltd., calling it “in the public interest“. See the attached order from the BCUC.

The BCUC also determined that BC Hydro’s consultations with First Nations with respect to the Waneta Transaction were adequate and upheld the honour of the Crown. The BCUC’s reasons for the decision will be released at a later date.

When the transaction closes, the Waneta Dam, located in Trail, BC, will provide BC Hydro with access to 167MW of firm capacity and 890 GWh/year of energy. Adding the interest in the Waneta Dam will also help the Province meet its electricity self-sufficiency objectives.

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New York Appellate Division Revisits Post-Termination Payment Of Commissions

by Dean L. SilverbergJeffrey M. Landes and Anna A. Cohen

February 2010


The New York Appellate Division, First Judicial Department’s recent decision in Arbeeny v. Kennedy Executive Search, Inc., — N.Y.S.2d —-, 2010 WL 114948 (1st Dept. Jan. 14, 2010), serves as a valuable lesson to employers with commissioned employees. When drafting written commission agreements, as required by N.Y. Labor Law § 191(c), employers must ensure that they clearly define when a commission is considered “earned.” In Arbeeny, the Appellate Division reinforced the long-standing policy that once a commission is earned, it cannot be forfeited, even if the employee who earned the commission is no longer employed when the commission is payable and the commission agreement provides that commissions are only paid if the employee is still employed when the commissions are due to be paid.

In Arbeeny, the plaintiff was employed by Kennedy Executive Search (“KES”), an executive recruitment firm, as a Senior Executive Search Consultant. Plaintiff’s commission agreement provided that he was eligible “to earn commission compensation in respect of placements arranged by Employee on behalf of KES.” (Emphasis added.) According to the wording of arrangement, the commission was earned at the time it was arranged. Payment of the commissions was to be made in the calendar month following the month in which KES received payment from the client, provided KES recovered certain costs. The commission agreement also provided, “[n]o commission shall be due” in the event plaintiff “is not in the employ of KES at the date the commission payment would otherwise be made.”

KES terminated plaintiff’s employment in March 28, 2007. KES received payment from a client in March for a placement that plaintiff had arranged; however, pursuant to plaintiff’s commission agreement, plaintiff’s commission would have been payable in April, after plaintiff’s termination date. As plaintiff was no longer employed by KES when the commission was due, KES attempted to avoid a dispute with plaintiff by paying him a portion of the commission, but did not pay plaintiff the entire amount due. The court noted that after plaintiff’s termination, KES received other fees from placements also arranged by plaintiff; however, KES did not pay any further commissions to plaintiff.

Although the lower court dismissed plaintiff’s complaint with respect to his claim for unpaid commissions, noting that “the employment agreement expressly deprives plaintiff of post-termination commissions,” and there was “no allegation that [KES] failed to pay to [plaintiff] commissions for placements he finalized and for which fees were received prior to his termination,” the Appellate Division reversed this decision and found that plaintiff “has sufficiently stated a breach of contract claim for unpaid earned commissions that he ‘arranged’ prior to his termination.”

While Arbeeny does not prohibit employers from foreclosing the possibility of an employee earning a post-termination commission, to do so, employers should explicitly state that commissions only become earned by the employee if (i) the entire transaction is completed during the employee’s employment, and (ii) the employee remains employed by the company on the date the commissions are due to be paid. To ensure that existing commission agreements are enforceable in the manner intended by the employer, we recommend that employers consult with their Employment Law attorneys to review all commission agreements.

For more information about this Client Alert, please contact:

Dean L. Silverberg
New York
(212) 351-4642
Dsilverberg@ebglaw.com
Jeffrey M. Landes
New York
(212) 351-4601
Jlandes@ebglaw.com
Anna A. Cohen
New York
(212) 351-4922
Acohen@ebglaw.com


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DAVIS MALM ATTORNEY PAUL L. FELDMAN PARTICIPATES IN MCLE ZONING PRACTICE SEMINAR

February 03, 2010 – Boston, MA
For more information contact: Jeanie Griggs
(617) 589-3895; jgriggs@davismalm.com

On January 26, Davis Malm attorney Paul L. Feldman participated in the “Zoning Practice: MCLE BasicsPlus” seminar. This seminar was designed for the practitioner who needs a solid understanding of zoning including the basics for both residential and commercial properties, handling issues that arise when special permits or variances are required, dealing with nonconforming uses and structures, and dealing with municipalities. Updated information on recent important legislative changes and important judicial changes were also discussed during the seminar. Mr. Feldman was part of a faculty comprised of experienced real estate experts.

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How Can You Telemarket? The OIG Adds a New Twist to DME Suppliers’ Telemarketing Prohibition

by Jana Kolarik Anderson and George B. Breen

February 2010


On January 13, 2010, the Office of Inspector General (“OIG”) revised and reissued its 2003 Special Fraud Alert regarding prohibited telemarketing conduct by durable medical equipment (“DME”) suppliers. There is a new twist.

Both the previous and new OIG Special Fraud Alert explains that DME suppliers are statutorily prohibited from making unsolicited telephone calls to Medicare beneficiaries regarding the furnishing of a Medicare covered item, except in certain limited circumstances.[1] The OIG explained that the statute also prohibits payment to a supplier who “knowingly” submits a claim generated pursuant to a prohibited telephone solicitation and that such claims are false. Consequently, violators are potentially subject to criminal, civil and administrative penalties, including exclusion from the Federal health care programs.

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