Making Time for What Matters Most

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In less than two weeks, the New York State Fair will open its annual twelve day run and families from all over New York and beyond will flock to see the incredible new improvements to the fair facilities, ride the latest gravity defying roller coaster, see the exhibits and animals, and gorge themselves on a smorgasbord of fried foods and lemonade.  It’s a tradition that we all look forward to, and a great opportunity for parents and their kids to share some time together.

The closing of the State Fair also brings an end to summer vacation, time for the kids to put away their sandy flip flops in favor of new sneakers and get on the bus for a brand new year of school.  This summer’s end ritual is a time when all of us with school aged children fall back into the routines we gleefully abandoned in June.  It’s time to set the alarm a little earlier, time to pack lunches, time to make sure the library books make it into the backpacks and that the homework planners get signed so your child can get a sticker from her teacher.

Our Central New York summers are short, and we cherish the time to be outdoors, to swim at Green Lakes, hike around Clark Reservation, and attend a Syracuse Chiefs game or go pick up fresh sweet corn from a roadside stand. Not bogged down by homework and sports practice, dance lessons and violin practice, we have more time to spend with our families, seeking and finding joy in achieving the perfect toasty marshmallow to go on our s’mores, and seeing all sorts of crazy shapes in the puffy clouds above hammocks strung between backyard trees. Summer is a blissful, magical time that we snowbelt dwellers crave the other nine months of the year.

It is also a reminder that just as summer comes and goes away again before we have even finished saying a proper hello, childhood too slips away despite our protests to stay, please stay little. Please don’t ever stop saying psgetti, please always want to clutch your well worn teddy bear to get to sleep at night. Years ago, I read a card that said something to the effect of “We had a very disappointing experience with our children.  They grew up.”  That resonated with me then, and it does now as my own children continue their march onward.

The time we spend with our children is never wasted time. They challenge us, they help us to grow, they fill our hearts with love we never knew we could feel.  They are watching our every move, absorbing, taking it all in.  Show them that they are your priority – put the phone down, turn off the tv. Read together, play catch together, sit on the sideline beaming with pride and cheering them on. Take them for ice cream even if they barely touched their green beans at dinner tonight. Learn “the new math”, which is really not so different from the old math, while you help them with homework. Help them build the best baking soda and vinegar volcano to ever grace a fourth grade science fair. When you make time for them, you are making time for you, too. We glorify the concept of “busy”, but the reality is all of us can make the time for the things that really matter to us. Budget your time – return the emails after your kids are asleep, instead of meeting a client for a drink after work, how about meeting for breakfast after the kids are on the bus?  The saying goes “the days are long but the years are short” – make the most of this precious, fleeting time with your family and you will reap the rewards in every single aspect of your life.

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Mark Wladis

Mr. Wladis, founder of the firm, holds both a JD and an LLM in taxation from the Syracuse University College of Law. His practice is concentrated in the areas of business and corporate law, taxation, economic development, and government relations, and he represents individuals and entities across New York State. He serves as chairman of the board of directors of Success by 6 and has served on the boards of directors of a number of other local organizations.

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What to Do When an Agency Visits for an Inspection

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You’re working in your office when suddenly one of your employees is at your door: there are a couple of agents from the NYS Department of Conservation at your facility, here to conduct an inspection because the agency received a complaint about your business.  What should you do?  What can you do?  If you manage the visit correctly, then maybe it’s just a minor disruption.  If you don’t, you can be looking at a major headache.

Here are some big picture items to keep in mind.

Understand who is there and why they’re there.  The example used here is the DEC, but the agency at your door could be OSHA, or EPA or a host of other regulatory or investigative agencies.  Find out who they are and why they’re there.  Certain personnel—security guards, a foreman—will be the first to interact with the inspectors.  They should request credentials and ask about the purpose of the visit and find out if they have a search warrant.  They should contact management with this information.  Most importantly, they should be professional and courteous—this is a serious event with potentially significant consequences—and direct any questions to management.

Determine who you want present.  Depending on the nature of the inspection, you may want counsel present, or at least available by phone if that’s at all possible.  In any event, you want only the right people present with the inspectors.  While you want to cooperate with reasonable requests, there’s no need to have more people than you need present to answer any questions.  Answers can have far reaching consequences, which you may not know at the time.  A speculative answer volunteered by an employee trying to be helpful could end up hurting, not helping, your cause.  Limit your company’s presence to those with knowledge or a need to be present.

Document the event.  Arguably, nothing is more important than documenting the inspectors’ visit.  Know who was present and when they were present.  As soon as it is practicable, document the questions the inspectors asked, the answers they were given, and the parts of the facility they visited.  Keep notes and photograph anything an inspector photographs.  If an inspector requests or takes records, document what was requested or taken.  If the inspector takes samples, see if you can get split samples.  Document as much as you can, even if it seems unimportant at the time.

You may not have to turn it over, but then again maybe you do.  Even with a search warrant, inspectors do not have carte blanche to inspect anything and everything at a facility or to take anything they wish.  Search warrants are powerful investigative tools, but they are typically limited in time and space and must set forth the particular items to be seized.  A search warrant for company records normally doesn’t give investigators the right to seize an employee’s private iPad kept at his desk.  That said, some federal (e.g., Clean Air Act) and state (e.g., Oil Spill Act) environmental laws require facilities to keep records showing their regulatory compliance.  The inspectors don’t need a warrant to review those records.

Read it carefully.  Sometimes an inspector will ask someone to sign a document after the inspection is completed.  Think about this request carefully because it can have serious legal implications.  Whatever the document is, read it closely before signing.  If you feel you cannot sign it, you probably should not.

Have a plan in place.  Finally, if you are a regulated industry or a workplace, you know that an investigative agency can pay you a visit.  Be prepared for it.  Have protocols in place for dealing with an inspection.  Have your employees know what they should do, how they should act and who they should contact if an inspector shows up at your facility.  Make sure management knows what it should do, including who should document the visit and who it might contact about any inspection.  Better to be prepared and not be inspected than to have an inspection and not be prepared.

The long and short of it is that being the subject of an agency investigation can be a nerve-wracking experience, but it doesn’t necessarily have to be.  It is all about preparation and sticking to protocols.  If you have a question about how your facility should prepare for an agency inspection, or if you’ve already been subject to one, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.

Minority and Women Owned Businesses-Everything You Need To Know

Becoming a Minority or Women Owned Business Enterprise (MWBE) in New York State has a number of benefits. Certification improves access to state contracting opportunities, promotes business development among MWBE certified companies, and offers many educational and training opportunities. Unfortunately, one can’t just declare their company a women or minority owned business. There are qualifications and standards that need to be met in order to earn certification.

Qualifications to obtain certification as a Minority or Woman Owned Enterprise:

  • At least fifty-one percent (51%) of the company must be owned, operated and controlled by women
  • At least fifty-one percent (51%) of the company must be owned, operated and controlled by minorities. (Minorities include those who are of black, Hispanic, Asian-Pacific, Asian-Indian Subcontinent or Native American heritage.)
  • Owners must be real, substantial and continuing, and must exercise authority over day-to-day decision making and business matters.
  • MWBEs cannot have a net-worth exceeding $3.5 million.
  • MWBEs may not have more than 300 employees.
  • Companies are required to be operating with at least one year of business.
  • Out of state companies must first obtain MWBE certification in their home state and must have authorization to do work in New York State.

New York State’s Minority and Women Business Enterprise certification was created to ensure and develop equality in regards to economic opportunities, as well as eliminate barriers for women and minority business owners. Becoming a certified MWBE isn’t as easy as one may think. Certification involves a lengthy application and a rigorous screening process in order to help businesses who seek to compete for state government contracting opportunities.  Fortunately, there are online resources and experienced professionals available who will assist in providing tips and tools to complete the application, along with making sure all of the detailed program eligibility requirements are met. Currently, it is taking Empire State Development (ESD) an extended period of time to process certification requests and re-certifications, which must be completed every three years. So, if you plan to gain MWBE certification or renew your certification, make sure to do so as soon as possible.

Is raising the MWBE utilization rate a good thing?

Since Governor Andrew Cuomo has taken office, he has heavily promoted the use of MWBEs and increased the “utilization rate” multiple times. In 2011, during his first State of the State address, Governor Cuomo announced that he planned to increase the 10% utilization goal to 20%. In the years leading up to 2014, New York’s MWBE’s were being awarded more than 25% of all state contracts, far exceeding the stated 20% goal. This 25% rate translated to nearly $2 billion in contracts and was one of the highest rates in the nation. As a result, at the 2014 New York State annual MWBE Forum in Albany, the Governor announced that he would again raise the state’s MWBE utilization to a rate of 30%. This percentage currently holds the highest state contracting goal in the United States. These goals play a major role in the success of all women and minority owned companies across the state. Our Governor is committed to the continuation of this profitable drive to advance and ensure that minority and women owned businesses are fully represented in New York. Under the leadership of Governor Cuomo, our state has and will continue to gain great momentum in growing minority and women owned businesses. So the answer is yes, I’d say the increase in MWBE utilization rate is a good thing.

Please feel free to reach out to the Wladis Law Firm with any questions regarding Minority and Women Owned Businesses or for assistance with your certification/re-certification!

 

 

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HEY, BIG SPENDER! THE 2016 FINAL RULE ON OVERTIME

PunchcardsOn Wednesday, May 18, 2016, the US Labor Department issued its final rule on overtime compensation, significantly raising the threshold over which certain salaried workers will become eligible for time-and-a-half wages for overtime. This rule change is connected to the Fair Labor Standards Act and was instigated by President Obama in 2014.  It sets the salary limit at $47,476 per year, which is the equivalent of the 40th percentile of salaries in the nation’s lowest income region.  The new rule also will implement a built in tool to adjust the salary limit every three years to keep up with current wage standards. Not all salaried employees whose annual income is at or below the new level will be eligible to earn overtime wages, however.  Exemptions for certain classes of employees, notably including doctors and teachers, continue to exist.  The rules changed for Highly Compensated Employees, as well, but the greatest impact will be felt for workers in the middle class.

Federal regulation of overtime wage standards relates back to the 1938 minimum wage law, which set a nationwide standard designed to protect workers and ensure that they would be able to earn what was then a very conservative living wage.  American wages have not followed the same growth trajectory as has the cost of living, and minimum wage no longer translates to a living wage – although there have been recent legislative movements to bridge that gap at least on a local level.

The last adjustment to the Labor Department’s overtime rule was in 2004, and the wage level set then was $23,660.  Wednesday’s change will mean that an estimated 4.2 million workers will now become eligible for overtime pay, and around 9 million already-eligible workers will now have legal protection to prevent the denial of overtime wages based on a duties test (ie, if the employee were deemed to be a professional with broad decision making authority).  This hard-line salary level rule removes the objectiveness of a duties test, leaving no question about whether an employee qualifies. Even with this new rule, fewer middle class workers will qualify for overtime (7%) than they would have by 1975 standards (60%) when adjusted for inflation (that wage figure would exceed $50,000 annually).

The practical implications of this final rule could have a negative impact on some workers, however.  Employers may either increase an employee’s base salary slightly above the limit in order to avoid having to pay overtime, or to avoid hiring additional staff to meet work demand. Employers argue that this new rule is costly to implement, and that it will also be damaging to worker morale as employees feel the need to justify their working hours.

The increase in overall earnings of these newly-eligible workers will be a boost to the economy.  As these qualifying employees have higher earnings, they will be able to pay down debt and also have greater discretionary spending dollars.  When those dollars are spent, they generate income within communities, and account for significant increases in tax revenues. This action by the Labor Department is an important step toward bolstering the strength of the middle class.

If you’d like to read the Office of Management and Budget’s approved final version of the rule (still subject to minor changes before publication in the Federal Register), you can follow this link.

 

 

 

 

 

 

Jennifer Granzow

Ms. Granzow holds a JD from the Syracuse University College of Law. Her practice is concentrated in the areas of business and corporate law, real estate, economic development, and government relations, with an emphasis on grants and public funding.

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How Do I Protect My Idea or Business Entity?

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If someone steals your personal property, you can file a report with the local authorities and rely on the criminal laws for protection. But how can you protect your idea from being stolen?

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Protect your ideas with a patent, trademark or copyright.

Ideas, or intellectual property (IP), are considered intangible property in the eyes of the law and can be granted certain legal protections in the form of patents, trademarks, copyrights, and trade secret. These protections allow for control of IP use and provide a means for prosecuting unauthorized users or infringing parties.

The protection is generally achieved through federal registration and recording by an individual or business as the owner of IP, which puts the public on notice that the IP is protected and permission must be sought before using the IP.

Utility Patents

Utility Patents cover inventions and certain processes and must be federally registered with the U.S. Patent and Trademark Office (USPTO). A patent does not necessarily allow the holder, or assignee, the right to make or use what is in the patent. Rather, it gives the holder the right to prevent others from making the protected invention or using the protected process.

There are three main requirements for a patent:

1) there must be a specific, beneficial use of the claimed invention or process;

2) the claimed invention must be new or a novel improvement on an existing invention or process; and

3) it must not be apparent or obvious to invent.

A patent will last for 20 years from the date the application is filed with the USPTO. Once the patent expires, the invention or process becomes public domain. To obtain a patent, an application is filed with the USPTO, which then reviews the application to determine if it is unique, novel, and useful. The process generally takes two and a half years but can last much longer depending on the nature of the invention.*

Design Patents

Design Patents protect the ornamental designs of useful products. Design patents must be new or a novel improvement and must be non-obvious, but it does not have to be useful. A design patent protects only the appearance of an object and not the actual structure or function. If a design fails to obtain protection under copyright, it can often times be protected with a design patent.

Trademarks

Trademarks protect a unique word, phrase, symbol, drawing, design or any combination thereof (a company’s logo) which identifies or distinguishes the products of one company from competitors. The purpose of a trademark is to allow consumers to easily identify and distinguish the supplier of products.

To enforce a trademark, there must be a likelihood of confusion between the protected logo and the infringing logo. Unlike patents, trademarks do not have to be federally registered to gain protection; they simply must be used in commerce and identified with the product they represent; however, federal registration provides stronger protection.

Copyright Intellectual Property word cloudFederally registered trademarks are protected for 10 years and may be renewed indefinitely. To obtain federal registration, an application is filed with the USPTO and a search of previous marks is conducted. The USPTO will review the application and publish the mark for any public opposition; if there is no opposition the trademark will issue. The process takes around 12 months.

Copyrights

Copyrights are used to protect written and artistic expressions of ideas. To gain protection, the work must be original, it must be the product of the author, and it must be fixed in a tangible medium (for example written on paper, painted on a canvas, or sculpted out of clay). With the boom in computing and software, copyright protection has been extended to computer programs in their source code form.

Copyright protection attaches automatically upon creation of a work meeting the requirements and lasts for the life of the author plus up to 120 years. To put the public on notice of the protection, the © symbol can be used followed by the year the work was created.

Trade Secrets

A Trade Secret can protect know-how, designs, processes, or inventions. Trade secrets require no registration and can last indefinitely. Unlike the above-mentioned protections, trade secret law is largely handled at the state level. For trade secrets, the burden is on the party seeking protection to put forth their best efforts to maintain the proprietary nature of what is being protected. The downside to trade secret is if a competitor can discover the trade secret through reverse engineering, public domain, or alternate means that do not violate the law, the trade secret is lost.

For more information on strategies to protect your idea, contact one of the attorneys here at the Wladis Law Firm by calling (315)445-1700 or by visiting our website.

Innovation Hotspots in New York: Helping Entrepreneurs Grow Their Businesses

The New York State Business Incubator and Innovation Hot Spot Support Program was first enacted as part of the 2013-2014 New York State budget to strengthen industry-academic collaboration through funding business incubation throughout the state. Empire State Development (ESD) intended the program to provide valuable support and guidance to early stage startups commercializing academic research by connecting them to an incubator in one of the 10 Regional Economic Development Councils (REDC). The end goal of the innovation hotspots is to help early stage companies successfully transition to large scale commercialization, ultimately resulting in job growth within New York.

Business Incubators

Syracuse Technology Garden, signage outside building

The Syracuse Tech Garden is one of five innovation hotspots in New York State.

In 2014 five incubators received innovation hotspot designation, including the Syracuse Tech Garden located on Harrison Street in downtown Syracuse. The designated incubators will be eligible for operating grants from ESD to subsidize crucial support for early stage companies, including business, legal, and marketing mentoring. This translates to much needed help with aspects of business and strategy many inventors are not familiar or comfortable with.

For startups and entrepreneurs seeking to commercialize academic technology, the incubators give guidance on validation of products, determining and targeting the right market, how to budget for and map out your business strategy, and where to go for additional resources. The incubators also provide their startups with exposure to investors and various grant opportunities to help get off the ground.

Innovation Hotspots

Innovation hotspots are designated tax-free zones, exempting participating startups from business and sales taxes for a five-year period. Businesses that successfully complete the incubator program are granted a “fast track” into the START-UP NY program, making them eligible for multiple tax break incentives for an additional 10 year period.

Legal Advice at The Tech Garden

The Wladis Law Firm represents over 350 businesses across New York State and has continued to show a commitment to helping the startup ecosystem in Central New York. The Firm maintains regular office hours in the Tech Garden every Thursday from 10 AM to 1 PM, providing free advice and consultations to Tech Garden tenants. If a tenant has more complex matters they need dealt with, the Wladis Law Firm offers a substantially discounted rate, keeping in mind both the cash-strapped nature of startups and the Firm’s goal of getting more companies up and running in Central New York.

If you have any questions or are interested in learning more about whether your business can take advantage of an innovation hotspot, contact one of the attorneys here at the Wladis Law Firm by calling (315) 445-1700 or by visiting our website,

How can START-UP NY help my business?

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On June 24, 2013, Governor Andrew Cuomo signed into effect SUNY Tax-free Areas to Revitalize and Transform Upstate New York, or “START-UP NY.” The purpose of START-UP NY is to provide economic incentives to new businesses in the form of tax-free zones throughout the state. The tax-free zones are aimed at attracting out of state businesses to New York and helping new or young companies founded in New York, with a focus on high-tech and startups, as a driver for net new job creation in-state.

Any business accepted into START-UP NY and located within one of the tax-free zones will not have to pay Tax Article 9 organization taxes or license & maintenance fees, Tax Article 9-A franchise taxes, Tax Article 22 personal income tax, and Tax Article 23 metropolitan commuter transportation district mobility taxes (if applicable). Additionally, accepted businesses located within the tax free zone are eligible for a refund or credit for Tax Article 28 sales and use tax and certain property tax exemptions.

The tax-free zones are located around sponsor universities, which have applied and been accepted by the Commissioner. The universities must provide designated spaces or lands on or off the university’s campus to serve as the tax-free zones.wind turbine

For a business to qualify for the tax-free benefits, it must be a new (to New York) business, a successful graduate of a New York State Incubator, or have a determination from the Commissioner stating the business will contribute to new job growth for New York State. The business submits an application to the sponsoring university by December 31, 2020, granting the Department of Labor access to any relevant business data, including tax, employee, and payroll records. The application should include a statement of milestones in a 5 year forecast that demonstrates the anticipated job growth.

Additionally, the business’ mission and activities should generally relate to those of the sponsoring university. The business must have formed a legal entity and must be in compliance with worker protection, environmental, and regulatory laws. The most important factor considered in applying is that the business will be able to create new jobs within its first year. The sponsoring university will review the application based on pre-approved criteria. Certain businesses are not allowed to apply for START-UP NY including any sort of retailer or wholesaler, restaurants, real estate brokers, law firms, medical and dental practices, hospitality and personal service providers, and financial service providers.

Once accepted, the business must maintain any new jobs to keep their tax-free eligibility. The metric relied on for determining if new jobs are maintained is whether the average number of employees is equal to or greater than the previous year’s employee count, monitored through annual reporting to the Commissioner containing the number of new jobs created, wages of those employees, and the number of new jobs created in previous years that have been maintained through the current reporting year.

If you have any questions or are interested in learning more about how your business can benefit from START-UP NY, contact one of the attorneys here at the Wladis Law Firm by calling (315)445-1700 or by visiting our website.