Time for a Divorce? Divorce Mediation is the Best Choice. See why it is Successful …

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Divorce mediation is recommended because it is quicker, cheaper and a more flexible process. It is highly encouraged if there are children involved. Divorce mediation protects the children from being dragged through a long, contentious process. Mediation is a non-binding process, that can be terminated by either party at any point during the process. The mediator helps facilitate the parties coming to agreement on important terms.

In order for mediation to be successful, both parties have to want (or at least be willing) to be part of the process. There cannot be an imbalance of power. Both parties must be able and willing to speak up and participate.

In our mediation sessions, when there are children involved, the first point for discussion is the parenting plan. I have found that if the parties cannot first come to terms on the issues relating to the children, then the mediation often isn’t successful. In discussing the parenting plan, we discuss who has custody, where the children will live, can the parties relocate, how time is shared on holidays and vacations, what happens if schools close for remote learning, etc.

During the mediation we will discuss distribution of all assets and liabilities, including what kind of debts do the parties have? Who is responsible? Who will pay them going forward?

We will discuss maintenance (formerly referred to as alimony), child support and add-on expenses. The parties will discuss the formulas associated with calculating these amounts and decide if they want to negotiate and modify these amounts.

Other matters discussed include without limitation: distribution of money in bank accounts, stocks, bonds, bonuses, deferred comp., etc. There is discussion about health insurance – who has it and who will be responsible for maintaining it going forward. There is discussion about real estate and how any equity may be distributed. We also discuss distribution of retirement monies, i.e. pensions, 401K, 403b, etc. and life insurance – whether the parties have it or need to get it, as well as what happens should one or both of the parents pass away.

The mediation process ends when the parties come to agreement on all open issues. An agreement is prepared and the parties sign this agreement in front of a notary public. The parties are encouraged to have the agreement reviewed by their own attorneys so that they understand what they are legally entitled to and what they may be giving up. Signing the agreement, does not mean that the parties are divorced. The agreement is a contract that is enforceable in court. The agreement must be submitted to the Court (along with approximately 10-15 other documents as part of an uncontested divorce) for Court approval to obtain a divorce.

If you are considering the mediation process and want to see if you are a good candidate for this process, click here to see if mediation is the right option for you.

Presently many divorce mediation sessions are being done virtually. For more information about a virtual divorce mediation, click here.

If you are interested in moving forward with mediation, check out the checklists we have prepared at www.donathlaw.com. These checklists will help you prepare for your mediation and provide some insight on the documents you need to gather to be prepared for your mediation.

For more information, contact Sheree Donath at sheree@donathlaw.com or at 516-804-0274 or by clicking here.

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Happy New Year from Donath Law, LLC

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May 2021 bring you, your family and friends health, happiness, prosperity and everything you have been dreaming about this past year.

As you embrace this new year, consider what will make you happy and how to accomplish that goal.

If you are thinking about changes in your employment or your marriage, start this new year right, and contact Donath Law, LLC to find out your rights and options.

After a long year, let’s remember that we still have some control over our destiny. Let’s together make 2021 the best it can be.

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The EEOC Offers New Guidance Regarding Vaccines in the Workplace

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The EEOC has been offering continuing guidance about discrimination laws in the workplace and how they relate to the current pandemic.

Yesterday, they updated their frequently asked questions to include a section on the new vaccine and requiring vaccinations.

Click on this link for more information and to read the frequently asked questions and response from the EEOC.

If you have questions or concerns regarding your employment, contact Sheree Donath at 516-804-0274 or sheree@donathlaw.com to find out your rights and options.

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New York State Paid Sick Leave – Links to Help You Understand the New Law and How it Applies

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New York State Paid Sick Leave Law went into effect on September 30, 2020. To find out more about this new law and how it applies to you, click here.

For New York State Paid Sick Leave details, click here.

For guidance on the new law and to find answers to common questions, check out the New York State Department of Labor’s Frequently Asked Questions, by clicking here.

New York City also amended its sick leave law to comply with the new state law. For more information on application of New York City’s Safe and Sick Leave law, click here.

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My Severance Package Has a Non-Disparagement Clause – Is that Common?

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Employees who are terminated from their employment may be offered a severance or separation package. Aside from the monetary component of the severance offer, there are various legal provisions that the employee is asked to agree to in order to receive the payment(s) that are being offered. One common provision found in a severance package is the non-disparagement clause.

Non-disparagement clauses generally seek to protect the company from the current or former employee stating anything negative about the company, its officers and its employees. They can be found in severance documentation and/or in employment agreements.

An example of a standard non-disparagement clause is the employee agrees not to make any statements, written or oral, or cause or encourage others to make any statements that defame, disparage or otherwise criticize the personal and/or business reputations, practices or conduct of the employer, officers, employees, affiliates, and/or the products and services of the employer.

Non-disparagement clauses can be more detailed, stating specifically, that the employee may not say anything negative or that may result in any harm to the business. Such statements cannot be verbal or be to the media, on social media, in writing, or in any future publications, among others.

Rarely, are departing employees offered mutual non-disparagement clauses. Employers are generally concerned about providing a mutual non-disparagement clause because depending on the size of the employer it may be difficult for the company to control the remaining employees and former employees of the business.

However, like all other components of a severance package, severance is a business exchange, the employer is seeking to buy something from the employee and in exchange have the employee agree to some limitations (i.e. release of claims, confidentiality, non-disparagement). Thus, employees have rights and should have the agreement reviewed and possibly negotiated so that the employee understands what they are signing, what they are giving up and what they may be receiving and possibly receive their own non-disparagement protections.

Severance and new employment documents should be reviewed before signing them so that the employee understands the legal terms within. For more information on why a severance package should be reviewed, click here.

To find out what terms generally appear in a severance package, click here.

To understand whether terms in the severance agreement can be negotiated and what items can be requested, click here.

If you received severance or separation documents that you would like reviewed and to determine if the offer within can be enhanced, contact Sheree Donath by clicking here or at sheree@donathlaw.com or at (516) 522-2743.

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Is your Parenting Plan back to school ready?

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Schools are reopening and are operating with new changes in the classroom and virtually. Parents must adapt and ready to navigate this new and fluid environment. Aside from preparing for the unknown school year, parents going through a divorce should consider how the changing environment and new way of school will effect their parenting time with their child(ren). Even parents who have parenting plans in place already may want to modify these plans to update them to include terms related specifically to their child(ren)’s daily education.

The following thoughts may be helpful to include in any new or updated divorce agreements and parenting plans:

(1) Whether one or both parents will make the decision if the child(ren) attend school in person or virtually and if optional, for how many days per week. And whether the decision is one for a short period of time or will continue for the entire school year.

(2) If virtual learning, will one or both parents be responsible for/ present to assist with the child(ren)’s learning/ education? (i.e. help them log in online; make sure they understand, do and submit the assignments; etc.)

(3) Will one or both parents be responsible for assisting with homework?

(4) Will one or both parents be able to work from home should the child(ren) have to quarantine or if the school closes? Or will one or both parents hire someone to assist with the child(ren)’s schooling at home while the parents are at work? Will that be someone from the family or will it be an additional cost and if paying the person, which parent or both will be responsible for any additional costs.

(5) Will one or both parents make the decision to change the child(ren) from in school learning to virtual learning? And if virtual learning, will that be for the whole school year or a quarter? Or how often will the decision be considered or changed? Does the child(ren) have any input into the decision?

(6) Will the child(ren) be able to see both parents if the child(ren) or parent(s) are sick or have been exposed to the coronavirus?

(7) Will the child(ren) be able to attend college? Rent an apartment? Stay in a dorm? Will the parents agree to pay the same tuition if online learning at a university rather than in person learning at a college?

While there are a multitude of questions and unknowns in the current pandemic, some issues can be mapped out for the parents and the children so that there are a few less levels of mystery and anxiety for the parents and the children.

Click on this link to review other items of consideration in preparing a parenting plan.

Parties willing to discuss and resolve these issues can do so with the help of a mediator. If you seek assistance with preparing or modifying your Parenting Plans, contact Sheree Donath at 516-522-2743 or sheree@donathlaw.com or by clicking here.

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New York’s Paid Sick Leave Law – Who Does it Apply to and How/When Does it Accrue?

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In April, New York enacted mandatory sick leave laws to go into effect on September 30, 2020. While the law goes into effect at the end of the month, employees cannot start using any accrued sick leave until January 2021.

The amount of leave depends on the size of the employer and the employer’s net income from the prior year. The same is true as to whether the employee is entitled to paid or unpaid sick leave.

Employers must count both full-time and part-time employees. It still unclear whether employees that work outside of New York would also be included in the count.

How is the amount of time due to employees calculated?

Employers with4 or fewer employees in any calendar year and a net income of $1 million or less = at least 40 hours of unpaid sick leave in each calendar year

Employers with 4 or fewer employees in any calendar year and a net income of more than $1 million = at least 40 hours of paid sick leave in each calendar year

Employers with 5 -99 employees in any calendar year = at least 40 hours of paid sick leave in each calendar year

Employers with 100 or more employees in any calendar year = at least 56 hours of paid sick leave in each calendar year

An employee is to be paid their regular rate of pay or minimum wage, whichever is greater.

How is sick leave accrued?

Sick leave is accrued at a rate not less than one (1) hour for every 30 hours worked.

Unused and accrued sick leave can be carried over to the following year. However, employers can limit the amount of time used in one year to 40 hours or 56 hours during one calendar year. The law does not require payment of unused, accrued sick time upon an employee’s departure.

Employers can also frontload the sick leave an employee is entitled to, but if they do, they cannot then reduce the amount of sick leave based on the actual time worked by the employee.

Sick leave will begin to accrue on September 30, 2020 to be used starting January 1, 2021. For those employees hired January 1, 2021 or after, the sick leave can be used once it accrues.

What are some reasons an employee can use New York Paid Sick Leave?

Employees can use sick leave:  

(1) to care for an employee or employee’s family member’s mental or physical illness, injury or mental health condition, whether it has been diagnosed, or requires medical care at the time the leave is requested; or

(2) for the diagnosis, care or treatment of an employee’s or employee’s family member’s mental or physical illness, injury, or health condition, or for preventative care for the employee or family member; or

(3) when an employee or the employee’s family member has been a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking receives assistance, attends events related to this experience, or takes any other action(s) to protect the health of safety of the employee or employee’s family member.

NYPSL also offers definitions of relevant terms such as “family member”, “parent” and “child”.

Must employers keep records of the sick leave? Yes.

Employers must keep records of sick leave provided to employees for six (6) years. Employees can make oral or written requests for the leave. The employer is obligated to provide a summary of the leave accrued and used by the employee. Employers cannot require employees to disclose confidential information pertaining to the request.

Can an employer retaliate against an employee for their use of NYPSL? No.

Employers are prohibited from retaliating against employees who use NYSPL. Employees must be returned to the same position, same pay and other terms and conditions of employment they maintained prior to their use of the sick leave.

It is expected that the Department of Labor will provide additional guidance and regulations to assist employers/employees with this new law.

There are other leave laws that are currently in effect, including, without limitation: FMLA, New York Paid Family Leave, Family First Coronavirus Response Act, New York City Paid Safe and Sick Leave Law.

For more information about your rights and options, contact Sheree Donath at sheree@donathlaw.com or at 516-522-2743.

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Does Hybrid/Virtual Back To School = A Hybrid/Remote Work Schedule?

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As parents try to navigate the evolving requirements for their children to go back to school, they are also faced with the hardship of wondering what will happen with their employment. Faced with uncertainties about the number of days children may attend school in person or virtually, causes anxiety about their working relation. Some employers have extended work from home situations into next year, while others are mandating a return to in office work.

As school opening plans remain fluid, employees may want to engage in discussions with their employers now to determine their options and what will work best for the employer and the employee. In an effort to maintain a positive working relation, below are some possible options that employers and employees should consider:

(a) a full work from home option

(b) partial work from home option, with the flexibility to alter days in the office and working from home

(c) a flexible work schedule allowing employees to work different hours or different days to complete their work

(d) a modification of the employees schedule from a full time to part time schedule

(e) determining if the employer has or will provide onsite childcare or if the employee can bring their child to work with them

(f) seeking a childcare allowance as part of the employee’s compensation

(g) seeking a leave of absence

The above list is not an exhaustive list, but rather suggestions of how to modify an employee’s current work situation and would need to pertain to each individual situation.

Under the Families First Coronavirus Response Act, employees can also seek time off to care for their children due to the closures of schools. For more information on the FFCRA click here.

Employers must be careful to abide by the laws in allowing parents to care for their kids. Employers making decisions regarding employees requests for accommodations must do so in a fair and non-discriminatory fashion. Failure to do so, may result in claims of gender, familial status and/or caregiver discrimination and retaliation, amongst others.

Employees working from home may also be entitled to expense reimbursement for those expenses associated with the cost of a home office (i.e. computers, printers, ink, pens, paper, etc.). This too should be discussed with the employer to determine what the employer’s expense plan may require for reimbursement.

For counseling and guidance on your current work situation or to find out your options, contact Sheree Donath at 516-522-2743 or at sheree@donathlaw.com.

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Virtual Divorce Mediation – How Does It Work And What Should I Expect?

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If your divorce mediation will take place virtually, there are a couple of things to consider. While divorce mediation typically occurred in an office setting many are now being conducted virtually.

To make your mediation process effective and successful, consider the following:

(a) The parties must act good faith. Both parties attending the mediation must want the mediation to work and be willing to work together to achieve that goal. If the parties do not act in good faith then the process will not be successful. The result – the parties will have wasted time and money.

(b) It should be clear to all attending the mediation who is on the virtual mediation. At the onset, the parties should disclose if they are alone or if they have counsel or any other person present with them. There should not be any unknown guests attending the mediation session. This sometimes occurs if the parties do not ask this questions in advance or if the party does not put on their video during the session.

(c) The parties should agree in advance, and be clear, as to whether the session is being recorded. It should be clear from the beginning that there will be no surreptitious recording of any of the sessions.

(d) The parties can be physically together or in different physical locations. The parties may be attending the mediation from the same house. If so, they can decide prior to the mediation if they are comfortable sitting in the same room with the mediator in another location or if they prefer to be in different physical locations in the same house or elsewhere.

(e) The parties should ensure they have a clear connection. Wherever the parties choose to log into the virtual mediation session, they should try out their connection prior to the mediation. It is important that the parties can hear and communicate clearly so their position can be known, heard and discussed.

(f) The mediator can do break out sessions with the parties or can create separate times to speak with each party, as needed.

(g) The parties should be prepared for the mediation. To help prepare for the mediation you may want to review the following articles: Divorce Mediation Checklist – Topics to Help You Prepare for Your Mediation and Divorce Mediation Checklist – What Documentation Should I Gather Before My Mediation?

(h) If there are children involved, you will need to come to terms on a parenting plan during your mediation. To help you prepare for a parenting plan discussion, you may want to review the following article: What Should be Included in a Parenting Plan?

Virtual mediation can be as successful as regular mediation. Mediation, however, is only successful if the parties are truly interested in the process, willing to allow the process to work, willing to compromise, willing to work together and willing to come to joint decisions.

For more information on mediation or to set up a mediation session, contact Sheree Donath at 516-522-2743 or at sheree@donathlaw.com.

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Some Helpful Links for Employers and Employees as Workplaces Begin to Reopen With Social Distancing Requirements, Among Others

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While many businesses will continue having their employees work remotely from home, others will begin bringing employees back to the workplace shortly. In doing so, there are guidelines that employers must follow and information that employees should be aware of upon their return.

The below links are provided to help both employers and employees to know their rights and obligations. These are meant to offer some guidance to the workforce, but is not an inclusive list of resources.

https://www.osha.gov/Publications/OSHA3990.pdf

https://www.dol.gov/coronavirus

https://www.eeoc.gov/coronavirus

https://dhr.ny.gov/coronavirus-discrimination

https://www1.nyc.gov/site/cchr/media/covid19.page

Feel free to contact Sheree Donath for answers to questions that are specific to your rights as an employee and what you can or should expect from your employer.

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