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Morton Harrison Fry

Morton Fry’s Answers

10 total

  • I have a lawsuit that was filed (discrimination, disability) but never litigated. It is killing my chances of getting a job.

    If I incorporate and work for a co as a corp (vs an individual) either on an employee (if possible) or contractor (possible) basis, will that make the corp more comfortable that I will not sue them, too? Unlikely to get docket sealed even tho it's...

    Morton’s Answer

    "killing my chances of getting a job..".

    It may be -- or may not be-- the case. Has a prospective employer told you that orally or in writing (unlikely)? One problem with all discriminatory practice is finding/getting "evidence", particularly difficult regarding the application process. If they did give you "smoking gun" evidence, that might give rise to an EEOC claim since the EEOC claims/believes the "retaliation" that is prohibited under its laws include pre-employment "retaliation". But, that said, another filing/action doesn't get you the job, in all probability. Further, a senior attorney at the State's Human Rights office (state equivalent of Federal EEOC) informs me that he doesn't believe there is a law or procedure that will assist you based on facts you relate, unfortunately.

    As a practical matter, you'll probably have to live with it. Send in your resume to prospective employers and if your get an interview, explain in a way that makes you seem non-litigious, Ii.e., "lawyer wanted to, I withdrew, I just want to work".

    "incorporate and work for a co as a corp..."

    Becoming an independent contractor (1099 vrs W-2) may help in some situations, but if a employer is looking for employees, that's is normally what they're looking for, so becoming an entity doesn't seem to be a practical solution to the underlying problem you believe exists.

    The above comment is intended as practical comment, and is a general AVVO response and not "attorney client advice", since I'm not "engaged" by you (as your lawyer).

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  • American Arbitration Association Clause saying to share the fees equally for any or all disputes in the contract ! (Off books)

    This is a matter of an unpaid salary ( 10 Invoices ) , alteration of Pay rate , invalid dispute on 2 unpaid invest . Defendant is coming up with a contract which is not signed on each and every page except the last page of contract and one ca...

    Morton’s Answer

    • Selected as best answer

    Please note the standard caveat; I am not your lawyer currently and my remarks are only a general comment on an AVVO question submitted publicly.
    1. Arbitration provisions are generally enforceable, if signed. It is unclear whether you are saying you didn't sign one or your copy/arbitration agreement is different from your opponents?
    2. While page by page initialing or signing may be helpful, there is no magic to it, nor legal disqualification if it doesn't occur. It is not the norm in documents.
    3. If the fact is that you agreed to splitting fees 50/50, and you have no proof to contrary, likelihood is that will be the result unless the AAA decides it has a different rule which should apply, and must . Possibly "employee arb rules" are such a case? I have seem such a situation where the AAA simply won't observe the "rule" to which the parties have agreed in writing (when contrary to a AAA rule), and simply applied its own written rule. (The AAA rules are all online, btw). That is more likely to occur with timing issues (e.g., how fast the AAA must act, which it doesn't like to rush no matter what the parties say) than a fee splitting one, but who knows? Call up the AAA (numbers on its site). I am not optimistic for you however.
    4. More bad news. The AAA is not cheap, and if the debt is "only"2-3k" (as one of your other lawyer commentator notes & knew somehow?), the end for you may not be so great, since the AAA fees themselves plus the arbitrator costs very quickly mount up. As a general rule, in future in your invoices you should put in a provision that all matter must go to small claims if under the local small claims jurisdictional amount, and any claims above to arb or court). Also there is no magic in 10 invoices or 3.

    good luck.

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  • Want to work at same client location with different employer but had signed non compete clause agreement with my current employ

    im working in new york ,ny client location through NJ consultancy firm. IT is evc model.I have discovered that they had a non compete clause in the agreement they made me sign.for 1 year in 50 miles radius for same client and vendor.Can i work at ...

    Morton’s Answer

    Non-compete clauses, while arguably "disfavored" in NY by its courts, also exist in a state and court system that starts with an "at will" premise regarding employment and a bias toward employers/corporations, meaning that the answer in this area is almost always fact-based and variable: i.e., what do you do, how long (time) and wide (geography) would the clause prevent you from making a living, and in what particular work area. In other words, in a way, it's a balance between what the employer could reasonably expect/need by way of such protection, does the employer need "special confidential knowledge" protection, whether you knowingly gave up some work freedom when you took the job in return for something ($/position) for yourself, and would you unreasonably be prevented from making a living under the clause. A lawyer's analysis should start with the facts of your job, the two "employers" business particulars and what you actually signed.

    I agree with Atty Gold that the restrictions indicated do not appear to be ones which a court would automatically frown on. If the "old job" is terrible, and the "new one " possibly great, It might be worth you contacting an attorney with all the facts since your AVVO summary isn't perfectly clear (as the other attorneys have indicated). Good luck.

    PS: this isn't legal advice as you haven't engaged me; it is only a general discussion of a legal issue.

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  • I was verbally abused at work for the last 3 months by my supervisor & witness my supervisor go into rage with others

    The verbal abuse has caused anxiety attacks causing me to walk off the job. I failed to report the incidents out of fear & also after witnessing my supervisor go into rants & rage with another employer & the CEO in which was all witnessed by HR th...

    Morton’s Answer

    Mr Forman and Ms McCall have it right.

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  • Copyright infringement to sell a parody of a popular song?

    I wrote and recorded a parody song of a popular song. Just like Weird Al Yankovic, I used the same music as the artist, but wrote completely different lyrics to parody. I did not get permission from the label to use the music. I have't made any mo...

    Morton’s Answer

    • Selected as best answer

    This is a complicated area, and the previous legal suggestions by my AVVO colleagues are generally on point and correct.

    The starting point for your thoughts is that once a work is copyrighted i.e., (the song you want to parody), it is fully protected federally, absent an exception in the copyright law (or the constitution). The copyright exception for “Fair Use” for criticism (parody) is at Section 107 of the US Code, Title 17 . See http://www.law.cornell.edu/uscode/text/17/107 for that statute section.*

    The courts have wrestled with what is “fair use” often, and the Supreme Ct of the US in Campbell v. Acuff-Rose Music is often said to have approved a large scale song copying for parody, although the matter was eventually settled with a license apparently, but the “short answer” for you, per a Stanford Law site at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html (see
    sections on “Music Cases” and “Parody Cases” therein), is :

    “As a general rule, parodying more than a few lines of a song lyric is unlikely to be excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by humorously modifying hit songs, [generally] seek permission of the songwriters before recording their parodies.”

    I believe that, while the courts may be broader in allowance than the Stanford site above suggests, one a case by case basis (dependent on the facts of the original and the "parody"), one who parodies does so at his/her own risk, and the "parody" must parody/criticize/be directed at the original work in some way, not just use it.

    The above is why the others commenting before me generally advise speaking to an experienced IP/music counsel for your matter. Sorry there is "no simple answer" except one fraught with risk or lawyer cost (or both), but that's the situation, I believe.

    Please note my comments are not "legal advice" and you are not "my client" currently, as I have not been engaged by you, but my comments simply constitute a discussion of the law, among you and other attorneys.

    *17 USC 107. ”Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism [emphasis added], comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

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  • I terminated my apartment contractor on Monday, Nov. 19. I may loose my deposit. Do I have cover his entire loss?

    I made a contract to renovate my 2-bedroom apartment with Universal Renovation NYC, Inc. in August 2012. The renovation company was required to submit ‘Alteration Contract’ documents to my co-op’s management company since September 2012. It to...

    Morton’s Answer

    Since I am not engaged as your lawyer this note does not constitute legal advice and your reading this caveat constitutes your agreement to such effect. If and when you or anyone engages me as his/her lawyer we must have an engagement letter agreement spelling out the terms of the engagement and until them my AVVO “comments” are just that, public comments regarding your situation.

    That said, your written contract with Universal Renovation (UR’s) will determine your liability most likely, plus any facts of understanding of the need for speed and agreement to such speed requirement (hopefully in writing). You appear to quote/cite part of the UR contract in the “T&Cs” you include, but those T&Cs don’t seem to be the whole of it (and in your note has several “typos” indicating retyping perhaps?).
    Two months isn’t outlandish by many contractor’s standards unfortunately, and without facts to show an understanding that a 30-60 day period solely is a “time of the essence” you may be hard put to show “material breach” of your agreement by UR based on the delay so far.
    However, this seems like a situation that is resolvable. Unless your apartment renovation requirements required unique equipment which UR had to purchase or other special conditions necessitating special costs on UR’s part, UR will be hard pressed to show damages other than loss of profits, which themselves are already partially covered by non-refundable deposit UR has retained. If you have good “proof” of UR’s non-attention to the “job” (e.g., letters from you pointing to your agreement and its timing needs, opportunity for UR to “cure” [get job back on track] and non-responsiveness by UR, possibly including your correspondence with your Board, it saying “where” are your contractor’s papers?”), UR will have to think twice about the value of chasing damages, particularly if a lawyer calls on your behalf and you have some argument that you’ve been injured through UR’s non-diligence (added costs, new requirements coming in January, whatever), that you can counterclaim for if UR wants to sue. It would seem UR, so approached, and carrying about its reputation presumably, would agree to end the agreement. Frylaw@mindspring.com

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  • I was caught stealing on my job and got fired. i was told they want to file a complaint against me now. what does that mean?

    what can they do to me now. how do i handle this .

    Morton’s Answer

    I agree with the other responders; if you can afford it, you need to speak with a criminal attorney, who can be helpful right now to get you ahead of this -- hopefully one recommended by your friends, who know his/her work. I can recommend STEPHEN G. MCCARTHY, JR. , SLIGO TRIBECA ASSOCIATES, 35 WORTH STREET, 3RD FLOOR, NEW YORK, NY 10013, 212.925.5901, FAX: 212.226.5904,CELL: 917.270.0236, who has served my clients well, in Manhattan and the Bronx.

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  • What are my legal options?

    I work as an independent contractor for a language company in NYC. I provided private language classes for the company's clients a month ago and have yet to be paid for the services. The company acknowledges that it owes money but has been citing ...

    Morton’s Answer

    Four prior lawyers have recommended sequentially to you: public help from a labor dept, small claims court and "suing "(2x).

    My comment is that the particular facts, including total amounts and employment arrangements, are important, and whatever you do, you should try to get admissions in writing from your potential adversary before you become clearly adversarial.

    If the total amounts are under $5000 and you have an admission that they owe you the money, I'd go to small claims asap, as long as you worked for the language company as an individual 1099 (and not as a small corporate vendor, e.g., your own LLC loaning out your services). Corps can't sue in but can be sued in, small claims court. Buy R.A. Solomon's " Winning in Small Claims Court" for a background book.

    A lawyer will not be cost effective for you unless the amount owed is larger.

    I don't know whether or not the NYC or NY State labor dept can help, but surely worth a call by you to see.The Freelancers Union, a new union to assist freelancers, also might give useful advice. Good luck.

    Please note that I'm not your lawyer, you have not engaged me, and my advice is not legal advice but rather general commentary on your questions and the AVVO answers to date. I can be hired after a conversation and after a written engagement agreement is agreed to between us (I have a simple short form), but, as I state above, I don't recommend that here, unless the sums are larger (and I hope not for your sake).

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  • I work in Retail, I recently joined a company that made me an offer that I accepted... the offer was salary plus a bonus structu

    I work in Retail, I recently joined a company that made me an offer that I accepted... the offer was salary plus a bonus structured after the 90 day probation period. The 90 days are up and now they are making me sign something that does away wit...

    Morton’s Answer

    "an offer": was it in writing or oral? Oral offers contracts are hard to prove, and subject to "he said, she said" credibility contests, unfortunately.
    "making me sign" -- to give good advice any lawyer must see initial offer and proffered 90 day paper.
    "praised and admired my work", in writing or orally, and if latter how prove?. see my first comment above.
    "is this legal". NY is an "at will state" meaning employers can hire and fire at will subject only to (1) certain constitutional and statutory protections (race, creed, color , gender, age, etc), (2) contractual protection, and/or (3) union protection . If there's a "contract" (oral or written agreement), if it can be proven, you can recover damages generally, not job, unless you're in a "protected class"(race, creed color etc), or there's a union protection . Re winning, "proven" is the operative word, and the legal process is generally slow and expensive.
    My advice is go to your boss (who praised you) and tell him/her your problem. Get his explanation, and then decide if you want to work there based on that. If you're unsure, keep the job (and look for another quietly). Other than "good counsel", without seeing papers, don't think legal process will help you.

    Please note: this is not "legal advice", but hypothetical general comment on a public AVVO inquiry, without knowing facts of any particularly matter. You are not currently my client, and you have no responsibility to me or me to you.

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  • My former employer no longer provides the services of the division that I managed. Can a non compete still be enforced?

    I managed an accounting division for a niche clientele group. The company has terminated my employment however, they have emailed their clients letting them know they no longer provide accounting related services. I need to know if that voids the ...

    Morton’s Answer

    This answer expressly does not constitute legal advice, you have not engaged me and I have not done research to answer.

    That said: as a hypothetical: non-compete agreements are generally enforceable in New York (different states differ as to enforceability).

    The enforceability depends most on (1) the language of the agreement and (2) the specificity of the enforceability as to you (more enforceable if in a specific employment contract applicable to you particularly, as a specific condition of your hiring, and part of the bargain vrs a general part of all employees entrance papers). I do not know if there has been a case on your point (the party desiring to enforce is no longer in the business segment at issue) but lacking a specific case on point if you expressly agreed to not compete in some area for a period of time, that non-compete is enforceable. Of course that answer begs the question of whether the party no longer in the business segment has any desire to so enforce--and the main reasons for so doing would be either pique or a desire to protect its clients' confidentiality or its own information, the latter also a non-solicitation and confidentiality/business opportunity issue.

    So assuming the party would want to block you, the answer would depend on the (x) original language and (y) the facts existing now (your departing relationship and what you might take with you which your ex-employer would prefer you didn't (in or around its general business).

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