Attig Law Firm P.L.L.C

In an article at NorthJersey.com, it was reported that Yankee second baseman Robinson Cano volunteered to switch to #24 to make #22 available for the Rocket. What struck me in the article is that he did so without any prompting from the Yankees’ front office.

In addition to being an amazing glove at second base, and an incredible young left-handed bat at the plate, this guy is always putting the team first. I remember before the Yanks signed Damon last year, Cano volunteered to fill the void in center-field.

My only question is this…why did he pick #24? Hopefully, Ru-Bench Sierra didn’t leave his “clutch-strikeout” hex on the number.

A recent Federal Circuit decision held that the Agency breached a settlement agreement it made with its former employee.

The former employee, a USPS worker, was terminated for “Failure to Maintain a Regular Work Schedule/Tardy“. In fact, the Plaintiff suffered from Sleep Apnea, a disability that affected his breathing and sleeping and caused him to frequently arrive late for work.

In settlement of his removal appeal to the MSPB, the Postal Service agreed to provide 3 documents to help the former employee apply for disability retirement. However, they failed to provide the documents until well after that deadline had passed. (Under OPM regulations, an applicant for disability must file for retirement within one year of his separation from the government in order to be eligible.)

The Plaintiff appealed to the MSPB, claiming that the Agency did breach the settlement agreement. The MSPB found in favor of the Agency – the Federal Circuit in turn found that the Postal Service had breached the agreement.

Interestingly, the Postal Service tried to argue that the former employee should have filed something - even an incomplete application - with OPM, in order to avoid losing eligibility. The Federal Circuit didn’t buy the argument - according to the Court, he would still have been irreparably harmed by the government’s breach. Apparently, Agency Counsel did not realize that federal disability retirement benefits do not begin to accrue until the application is complete.

The plaintiff received a new removal date so he could make a timely application for disability retirement, as well as back-pay and other remedies.

If you believe the Agency has breached a settlement agreement in your case, or if you need help reducing a settlement agreement to writing, it is best to have a Federal Employee lawyer review your case.

In his State of the Union last night, Mr. Bush once again mentioned Small Business Association Health Plans (AHP) as the panacea for small business health care woes.

An AHP is insurance coverage offered to members of an association. The association must exist for some other purpose than to sell insurance, for example, a trade assocation or a chamber of commerce.

It seems to me that AHP legislation only allows trade associations and chambers of commerce to become health insurance brokers without going through any licensing or regulatory process. That’s why the Small Biz lobbying group (and a lot of chambers of commerce) are pushing for AHP’s - I imagine they’ll probably get commissions for each policy they sell.

Before understanding whether an AHP is good for your small and micro business, it’s necessary to understand the difference between providing access to more insurance policies at a lower premium (AHP) and access to quality health care at lower cost. The AHP does the former, and may have nothing to do the latter.

With lower premiums, though, comes another problem: the insurance company has less money available to compensate their insured on their claims. As a result, here is what the insurance company will likely do:

• Not cover many medical services and procedures.
• Deny coverage to high risk individuals (in my experience, this means all individuals with any health problem)
• Deny claims more often and more arbitrarily
• Negotiate lower rates, discouraging participation by many doctors and medical providers.
• Worst case scenario, the insurance company may have to file bankruptcy and leave you holding the bag with the medical debt.

So, in exchange for a lower insurance premium (a portion of which is probably kicked back to the association that offered the plan), you get fewer medical care options, more expensive out-of-pocket medical costs, no predictability in continued coverage at the lower premium, and no guarantee of quality and cost-effective medical care.

There are many other problems with AHPs, including the concern of insurance fraud, but that’s too detailed for this post. The bottom line - if AHPs become law, be very careful to do a lot of research about any insurance carrier with whom you intend to contract.

Your small business attorney should be able to discuss the wide variety of health-care options available to your small or micro business and its employees.

On Monday, the Farmer’s Branch City Council held an open meeting regarding the proposed ban on renting housing to illegal immigrants. Council member Ben Robinson is quoted as saying: “Being poor is not an entitlement to come to America.”

When I read his quote, I thought of the plaque at the base of the Statute of Liberty. I realize the words are not law, and do not create an entitlement, but they do serve to remind us of one of the core values of our country:

“Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tossed, to me:

I lift my lamp beside the golden door.”

During tax season, there’s nothing wrong with calling the IRS directly to ask a question. In fact, I just called yesterday on behalf of a client.

However, when you call the toll-free number, have a pen and paper handy: the very first thing that any IRS representative will tell you is their name and their Badge or Identification number. If you don’t get their name and number the first time, ask them to repeat it.

Doing this serves two purposes – first, if you want to complain about a representative who is confrontational or unhelpful, this number is the key for the IRS to identify the problematic employee.

Second, if the IRS ever questions how you treated a tax matter in your return, it is always helpful to be able to say, “I asked Mr. Smith, Badge number 123456, on January 23rd, how to handle this matter, and I did exactly what he told me to do.”

Ulysses Hudson won a jury award of $2.5 million dollars in a suit against the Department of Homeland Security. In that suit, he claimed reprisal for filing complaints of harassment and discrimination.

Hudson, a black Intelligence Research Specialist, first sued the agency in 2001, claiming racial harassment by managers and co-workers. The harassment consisted of racial comments, putting nails in his tires, and treating him as less than an equal. That conduct caused him depression and anxiety and prompted his doctor to order that he no longer work in the agency’s Miami office. The Agency moved him to an office in Ft. Lauderdale to accommodate the anxiety and depression that resulted from that treatment.

After a jury decided against him in the first case, DHS gave Mr. Hudson the choice of moving back to Miami or be fired. He refused to go back to Miami and was fired. The termination was the basis for a second lawsuit for retaliation and failure to accommodate his disability. After a 5 day trial, a jury awarded Mr. Hudson damages in the amount of $2.5 million dollars. $1.5 million of that was attributable to pain and suffering and mental anguish.

A business continuity plan is exactly what it sounds like:  a plan, prepared before a disaster strikes, that will quickly and efficiently get the business back on its feet and resume services after the disaster strikes.At a minimum, the following information should be included:

1. Company’s Policy on Implementation: should describe what scenarios will trigger implementation of the plan, who is responsible for implementing the plan, and who will communicate with employees, vendors, customers and business partners.
2. Assets available after a Disaster: what offices will coordinate efforts to get the business back up and running, whether temporary space is available, methods of communication, insurance policies and coverage, employee assistance programs, and emergency fund availability.
3. Communications: Identify emergency contact information for key personnel, “call trees” for all employees, role of various offices in a disaster, customer and client contact lists, and what forms of communication should be available after a disaster.
4. List of Mission Critical Systems: This is the “meat and potatoes” of your business continuity plan, and should identify operational, financial, administrative and regulatory systems and processes that are needed to run your business, and who will be responsible for bringing those systems “on-line”.
5. Data Backup and recovery. At a minimum, identify which systems should be backed up, how often they will be backed up, where the backups will be stored, and who has access to backups after a disaster.
6. Unique Industry or business concerns. Different industries may require special details - particularly professional and financial service industries. Also, single member entities (single member LLC, sole proprietorships) may require additional information in the event that the disaster affects the business owner’s ability to work. You should consult with a specialist or legal advisor to determine any unique areas that cover your industry or business organization.
7. Review and Update: Should include a timeline for regular review, testing of the plan, and updating of the plan as weaknesses/flaws are discovered.

Many business owners procrastinate on sitting down and assembling a business continuity plan. Often, a business owner/operator with no systems for the backup and restoration of critical data and processes will procrastinate in developing a plan to get those systems back on line after a disaster or disruption in business. These are probably the businesses that collapse when disaster strikes.

By sitting down with a small business attorney now to develop a business continuity plan, the small business owner/operator will get a much clearer picture of what he or she can do today to keep from going under when disaster strikes.

The Attig Law Firm provides Business Continuity plans on a fixed fee basis: contact us today for a consultation.

Often times, business owners only hear the potential “up-sides” of arbitration clauses. They are told that an arbitration clause will reduce their risk of a large damage award from a jury, and that arbitration is less expensive than going to Court. The business owner, excited about the possibility of reducing risk, agrees to include the arbitration clause in the contract.

But small business owners are rarely informed of the “down-side” risks of an arbitration clause. There is always the possibility of getting a biased arbitrator, particularly in smaller towns and counties.

Arbitration is expensive.  One of our small business clients found this out when he had to spend several thousand dollars just for the right to have an arbitrator assigned to his business’ claim.   He found another way to handle the dispute before he learned of the attorney fees and arbitration fees associated with taken an issue to an arbitrator.

More than a few arbitrators are not attorneys, and it is not uncommon to run into an arbitrator who doesn’t know or understand the law that governs a particular dispute. In the event of an adverse arbitration decision, there is extreme risk that a Court cannot or will not reverse (or reduce) excessive damage awards.

When two parties don’t negotiate the arbitration clause at “arms-length”, there is always the risk that one of the parties will find a way out of the clause and you could end up litigating your case in Court anyway.

Finally, it’s been my experience that most arbitrators try to “split-the-baby” or find “win-win” solutions; these types of outcomes are almost always “lose-lose” for small business owners.

I’m not bashing arbitration or arbitrators: there is a time and place for their skills and services. However, our Constitutions (Federal and State) created the Judiciary for a reason; except in rare circumstances, only an independent judiciary can best provide a prompt and proper redress for a wrong or injury.

Unless you have a specific and informed reason for choosing to include an arbitration clause in your contract, it’s almost always better to present your dispute to an informed, educated and experienced judge. At the very least, our State judges here in Texas are answerable for their decisions come election time, and our Federal Judges are bound to 230 years of law and precedent.

If you want to explore whether or not to include an arbitration agreement in one of your contracts, or if you want to discuss whether arbitration is a good solution for your business, contact the Attig Law Firm for a candid analysis.

The Attig Law Firm will rarely recommend including an arbitration clause in a contract. This type of clause, where the contracting parties willingly give up their right to go to Court and instead resolve their dispute before an arbitrator, usually make good business sense only when both parties make a knowing and informed agreement to arbitrate a future dispute. Otherwise, arbitration clauses are disasters waiting to happen.

Take the plight of Perry Homes. In 1996, they agreed to build a $250,000 home for a Texas couple; the couple then alleged that the home was a lemon. In 2000, they brought suit against Perry Homes seeking the cost of repairs to the home. Because Perry Homes included an arbitration clause in their contract, the Court ordered the parties to comply with the contract and submit the dispute to arbitration. In 2002, the arbitrator decided against the homebuilder  - to the tune of $800,000 (including punitive damages, actual damages and attorney fees).

For 5 years, Perry Homes has been trying to have the decision of the arbitrator overturned by Texas Courts -  not surprisingly, they claim that the arbitrator was biased against the builder. Over those 5 years, the damage award has grown to $1.3 million dollars, including interest.

The great irony is that Bob Perry, owner of Perry Homes, has for years donated millions of dollars to politicians and lobbyists to make sure that arbitration agreements are upheld. Now, he is spending tens, possibly hundreds of thousands of dollars to his lawyers to get the Court to undo everything he has created. A lesson we can take from the plight of Perry Homes is this: arbitration clauses are only useful if the parties are bargaining at “arms-length” and both parties make an informed and knowing decision to waive their right to resolve a dispute in court.

Here are some interesting facts about small business and the minimum wage:

• In April 2004, the Fiscal Policy Institute released a report finding that small businesses grow faster in states with higher minimum wages.
• In March 2006, Wells Fargo and Gallup released a survey in which 86% of small business owners said that a hike in the minimum wage won’t affect their business. (In December 2006, Discover Financial Services issued the results of a separate survey with a similar finding.)
• It’s rare for a small business to pay only the minimum wage. In fact, only 2.7 % of all hourly-paid workers in the U.S. receive the minimum wage.
• Since Texas raised its minimum wage from $3.35 per hour to $5.15 per hour in 2001, Texas has experienced job and small business growth that outpaced most of the nation. (I’m not arguing cause and effect here, only showing that the minimum wage increase isn’t sinking small businesses, as conservatives claim.)

If you’re sick of politicians, lobbyists and advocates playing on your fears, call your U.S. Senator today.  Tell them you are a small business owner and ask him or her to vote to pass the minimum wage increase.