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Keep Holiday Drama to a Minimum This Year
For most people, the holidays are a time of happiness and family. But for those who are divorced or separated or contemplating a divorce, the holiday season may present many challenges. It is important to keep the holiday drama to a minimum and put the child’s best interests first this holiday season.For many children of split homes, the holidays may mean (a) splitting their time between their parents; (b) being in the midst of their parent’s arguments regarding scheduling of time with the child; (c) stressing about the interaction between the parents as they meet to drop off/pick up the child; (d) missing time with other family members because it is time to go with the other parent; (e) leaving the fun at one house and possibly missing the fun at the other house; (f) not being involved in traditions; and (g) simply being sad that the child cannot spend the holidays with both parents simultaneously. Despite the relationship between you and your spouse/former spouse, once you have children, their interests are to come first. The child should not feel anxiety or stress because a holiday is approaching and they should not be aware of the parents anxiety or stress. Parents should consider what would make the child happy, not what will anger the other parent most. Remember, that these are lifelong memories that are being built and your child may not remember all of the details of the holidays, but will remember how he/she felt and whether his/her parent made them feel that way. While your relationship and divorce may be contentious, try to set that aside and focus on your child. Is it best for the child to alternate years with each parent, spending the time between Christmas and New Year’s with one parent one year and the other parent the following year? Or is it better to split the holidays so that the child spends half the holiday week with one parent and half with the other? Or would it be better for each parent to take certain holidays to share with the child rather than shuffling the child mid-day? Would your child be happier to share the day of the holiday, with one parent having the child in the morning and the other having the child in the evening? Are you able to both be in the same place at the same time with the child on the holiday? There are many factors to consider in creating a parenting plan. The primary factor being what is best for the child. Schedules must be coordinated and worked out, but creating experiences with the child that the child will remember and look back on happily, is the ultimate goal. So as the holidays approach, do not let your feelings for your former spouse cloud your judgment. Think of what will make your child(ren) happiest. Donath Law, LLC can assist you in preparing and modifying your parenting plan to put your child’s interests first. and allow you to be the parent you want to be this holiday and for all future holidays. |
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Poor Performance Review … What is the True Motivation?
Take Action To Protect Against a Poor Performance Review
Most employees receive written performance reviews on a bi-annual or annual basis. The purpose of these reviews should be to set goals, keep track of employee progress by measuring objective criteria, set out resources, train employees, motivate poor performers to do better and to determine proper raises or bonuses. This is not always the case.
Performance reviews are also used to create a paper trail for employers to terminate employees. Performance reviews are used to set up an employee to fail and create a written record prior to terminating an employee.
Performance reviews that are not used properly make it impossible for the employee to succeed. They provide overreaching goals that cannot be achieved. They are not applied consistently. They do not allow employees an opportunity to respond to deficiencies within them. They do not follow the company’s policies or procedures.
Performance reviews may be used improperly to target employees that employers want to terminate for an illegal reason, i.e. race, gender, disability or perceived disability, pregnancy, sexual orientation, etc. They may also be used improperly to retaliate against an employee that has raised a claim of discrimination, participated in a workplace investigation, filed a claim with the company or a government agency, raised claims of impropriety or wrongdoing, raised health concerns, etc.
Performance reviews are also used to place employees on a performance warning in which the employee then has a set number of days to achieve unattainable goals or otherwise be subject to discipline, including termination.
Mediation – A Helpful Tool in Resolving Divorces and Workplace Disputes
Mediation is a non-binding, voluntary process where both parties must be interested in achieving resolution. It can be a helpful tool in conflict resolution, both in the workplace and for spouses looking to divorce or separate. However, mediation is not the proper forum for everyone.
Mediation is successful if the parties want to be a part of the process and are serious about resolving their differences. In mediation, the parties meet with a mediator. The mediator is there to facilitate resolution. The mediator cannot force resolution, but will help the parties come up with alternatives and options with a goal of reaching agreement.
Divorce mediation is the preferred choice for couples facing separation and/or divorce because it is a more amicable, faster and cheaper process than litigation. It offers couples more control over the process and the decision-making, allowing for more flexibility and cooperation in determining, among others: Equitable Distribution of Assets and Property, Custody, Child Support, and Maintenance. Divorce mediation allows couples to structure their divorce differently than if they went to court. The parties are made aware of the guidelines for child support and spousal maintenance, but have the option to opt out of these guidelines and decide together the amount of these payments. The parties can work together to determine a parenting plan and custody arrangements that best suits their child(ren) and their life. Aside from the flexibility in structuring the divorce and distribution of assets and liabilities, the cost of divorce is a fraction of the cost as compared to a contested litigation.
Mediation can also be a helpful tool in workplace disputes. Prior to commencing litigation, the parties should consider mediation, as it is generally faster and the parties, as stated above, have more control over the process. Some employers have policies requiring mediation prior to litigation or arbitration. A good mediator, is aware of the law and attempts to settle the underlying issues that have arisen. The parties will make the mediator aware of the circumstances, the efforts, if any, that have been made to resolve the situation and the proposed resolution. The mediator will work to try and facilitate resolution and at the same time provide his/her insight into the strengths and weaknesses of the claims.
Mediation is generally not successful if the parties are not both on board. If the parties are not truly interested in resolving the situation, the mediation will most likely fail. If mediation is being used as a tool to humiliate, intimidate or deplete a parties’ assets, the mediation should not move forward or should be halted quickly. In situations where there are orders of protection or claims of domestic violence, mediation is not the proper forum for divorce. Parties should not move forward with mediation if one party is overbearing or controlling.
In all situations, should resolution be reached the agreed upon terms should be subscribed to writing and provided to the parties for both to have reviewed by an attorney and signed. A copy of the agreement should be kept by both parties so that they are both aware of their obligations.
In a truly success mediation, the parties are slightly unhappy but happy that the matter has been resolved. Why? Because mediation is a compromise by the parties. One party agrees to give in to one item in order to obtain another, or one party paid more money than they wanted to the other party but the other party is disappointed because he/she wanted more than what was to be received. Overall, the parties are satisfied with the outcome because the issues have been addressed and settled. Both parties have had the opportunity to speak, be heard, and stand up for what he/she believes and wants.
Legal Separation v. Divorce: Find Out the Difference
Are you unhappy in your marriage? Is marriage not what you expected or is it no longer working for you and your spouse? Don’t worry, you have options. It is difficult to make the decision to end a marriage and it is a decision that should not be taken lightly. It is for this reason, among others, that before taking that drastic step, many couples decide to first experience life apart through a legal separation.
Legal separation provides couples an opportunity to live apart from each other and at the same time sets out the rights and responsibilities for each spouse. This includes, items such as child custody, child support, spousal support/maintenance and property division. A legal separation is a legally binding document that a married couple enters into to decide the terms of their separation without ending their marriage. Once entered into, the couple is still legally married but is also considered separate in the eyes of the law.
A legal separation can be accomplished through a written agreement by the parties or by going to court and requesting a judgment of separation.
The main difference between legal separation and divorce is that a legal separation does not actually dissolve the marriage and the parties are still considered legally married and therefore cannot get remarried.
Legal separation offers advantages to the couple. Specifically:
(1) It allows the couple to see how their current problems and relationship is affected by living apart so that they can determine if they want to reconcile or they want to officially end their marriage and file for divorce. If they choose to reconcile, there is no need to remarry.
(2) It is generally a more amicable process and may have less of a tumultuous effect on the couple’s child(ren).
(3) A legal separation can be highly advantageous in protecting both spouses’ entitlement to benefits. Since the couple is still married, the couple maintains their married status and benefits like health plan coverage that would likely terminate upon divorce generally will continue. Spouses who are married for at least ten years are generally eligible for certain Social Security Benefits and for benefits under the Uniformed Services Former Spouse Protection Act. There may also be tax benefits.
(4) Some couples choose legal separation as an alternative to divorce for religious and/or moral reasons.
(5) While divorce can be an amicable process, a majority of divorce proceedings are long, drawn out, expensive litigations. Divorce battles, more often than legal separation cases, can be hostile. This can rack up large attorneys’ fees and court costs.
(6) Obtaining a legal separation generally does not disrupt life and work the way a divorce battle can. Both spouses can continue to function normally in their daily lives without the stress, emotional turmoil and time requirements that can come with drawn-out divorce cases.
(7) Another benefit is that once a legal separation is complete, the legal work involved in coming to an agreement can be used during the divorce process, since the rights and responsibilities of the parties during the separation can be converted into post-divorce obligations.
While legal separation offers many advantages, divorce may be the only option for some couples. Ultimately the decision of legal separation versus divorce comes down to the circumstances involved in the marriage. A legal separation will still keep the couple married, and if a spouse wants to marry someone else they have to file for divorce.
School music judge wonders if ‘contractor’ label is right
I was quoted in today’s Newsday article by Carrie Mason-Draffen. See the article below:
DEAR CARRIE: I am a member of the New York State School Music Association, or NYSSMA, which is an organization dedicated to advancing music education in school systems across the state. Every spring, NYSSMA sponsors evaluation festivals during which students perform and then receive ratings and written comments about their musical proficiency. I am one of the many judges for the various festivals. NYSSMA conducts the judges’ training, formulates the scheduling, determines how the performances are scored, and sets the hourly pay rate. Yet it reminds us at the beginning of every season that we are independent contractors. How can this be? — Sour Note
DEAR SOUR: Based on the information you provided, it’s possible you are being misclassified as an independent contractor, said employment lawyer Sheree Donath of Donath Law in Uniondale.
A lot is at stake in classifying workers. Employees, unlike independent contractors, may qualify for their employers’ health benefits, paid time off and pension contributions, as well as state unemployment benefits should they lose their jobs, Donath said. For employers, hiring independent contractors means they forgo all those expenses and more.
“Many organizations like to hire workers as independent contractors rather than employees to avoid making payment of benefits and taxes,” she said. “For this reason, many workers are misclassified as independent contractors.”
Employers can’t just declare someone an independent contractor. By law, many criteria must be met. And at least three government agencies have guidelines for determining an employee’s status, and they all look at the issue of control.
The New York State Department of Labor looks at whether the employer controls such things as: the work to be performed, the rate of pay and the hours of work. The department also looks at who supervises the independent contractor and whether the company requires the contractor’s exclusive service.
True independent contractors control their working environment, Donath said. And they are free to work for several businesses. They can accept or reject certain projects and may have their own business.
The U.S. Department of Labor uses determining factors that include: whether the work is an integral part of the employer’s business; whether the employer controls the work; whether the independent contractors’ managerial skills affect their bottom line; whether the work performed requires special skill and initiative, and whether the relationship between the worker and the employer is indefinite.
The IRS guidelines look at the relationship of the employer and independent contractor to determine such things as behavioral and financial controls and the nature of the relationship.
With the behavioral factor, Donath said, the key question is: Does the company control or have the right to control what the worker does and how that person does his or her job? For the financial element the agency looks at whether the business aspects of the independent contractor’s job are controlled by the employer, she said. These include things like how worker is paid, whether expenses are reimbursed and who provides the tools and supplies. Lastly, the federal agency looks at broader aspects of the relationship such as whether a contract is involved and whether employee-type benefits are offered.
So you need to answer some key questions about your work arrangement to determine your true status, Donath said. For example, are you required to work at every festival or can you choose which festivals to judge? Are the supplies provided for you or do you provide your own? Do you receive any benefits from NYSSMA? Can you decide what training to attend? And are you able to promote your own business while judging at the festival?
“I suggest that you consult with an experienced attorney to determine if you are being classified improperly and to find out your rights and options,” she said.