Archives for November 2023

November 29, 2023

In a recent article, ProPublica unveils its Claim File Helper, a new tool to help you find out why your health insurer denied your claim. Under federal law, most people in the U.S. facing a denial have the right to request their claim file from their insurer. A claim file is the information your health insurer uses to decide whether to pay for medical care. This includes documents explaining the reasons your insurer denied your claim. With this information, providers and patients can appeal to get denials reversed. For readers interested in learning more about filing a claim request, ProPublica’s useful guide explains in further detail what a claim file is, why to request one and how the claim file request process works. To make the request process easier, you can use ProPublica’s tool to generate customized letters to send to your insurer and request your claim file.

To read how CASTAYBERT PLLC can assist you with insurance recovery matters, click here.

November 28, 2023

The “Freelance Isn’t Free Act” was signed into law by New York Governor Kathy Hochul on November 22. The law, SB 5026, gives freelance workers the right to have written contracts and be paid within 30 days of providing freelance services. The legislation is expected to apply to over two million New York freelancers, who fit the definition of “freelance workers” prescribed in the Act as individuals or organizations of one person who provide services of $800 or more to one hiring party within a 120-day period. The legislation specifically excludes sales representatives, practicing attorneys, licensed medical professionals, and construction contractors from the definition of freelancers. Similar legislation has been in place in New York City since 2017.

The law, which will take effect in May of 2024, will require those who hire a freelancer to provide $800 worth of services or more to use a contract including, among other things, an itemization of all services to be provided by the freelancer, the value of the services to be provided pursuant to the contract, and the rate and method of compensation. Hiring parties who fail to adequately memorialize an arrangement with a freelancer could be subject to fines. The law will protect hiring parties from taking any “action that penalizes a freelance worker for, or is reasonably likely to deter a freelance worker from, exercising or attempting to exercise any right guaranteed under [the law], or from obtaining any future work opportunity because the freelance worker has done so.”

Freelance workers who wish to allege violations of the law may file a complaint with the Commissioner of Labor, who, following an investigation, may sue hiring parties, join claims from different freelancers against the same hiring party, or impose civil and criminal penalties. Individuals may also file civil actions. The bill further authorizes the State Attorney General to bring a civil action on behalf of the state and seek injunctive relief, civil penalties up to $25,000, and any other appropriate relief where reasonable cause exists to believe that a hiring party is engaged in a pattern or practice of violating the Act.

It is always a best practice for businesses that work with freelancers and independent contractors to employ written contracts. Businesses should not wait until enforcement of SB 5026 begins in May 2024 to codify their arrangements with workers, which is a key step in identifying any potential liability involved in those relationships.

To read how Castaybert PLLC can assist you with employment law matters, click here.

November 27, 2023

On November 17, 2023, New York Governor Kathy Hochul signed into law SB S4516, prohibiting settlement agreements in claims involving sexual harassment, or other form of unlawful discrimination, from containing any condition that requires payment of liquidated damages for violations of a non-disclosure or non-disparagement clause included in such settlement agreement. The law, effective as of Gov. Hochul’s signature, will apply to all settlement agreements between employees and employers entered into on November 17, 2023 or later.

The new law will be relevant to settlement agreements dealing with various issues, including claims of unlawful harassment, discrimination, and retaliation. In effect, such agreements will be prohibited from requiring a defendant found to have breached the agreement to either pay a set amount of money indicated in the agreement, forfeit settlement payments, or make any affirmative statement, assertion, or disclaimer that the complainant was not in fact subject to unlawful harassment, discrimination, or retaliation. No release of a claim involving unlawful discrimination, including discriminatory harassment or retaliation, will be enforceable if it is determined to be in violation of the new law.

While the law applies only to agreements entered into on or after November 17, 2023, Gov. Hochul signed another bill extending the statute of limitations on all unlawful discriminatory practices claims to three years. Prior to the amendment, most complaints of unlawful discrimination were required to be filed with the Division of Human Rights within one year, while a three-year statute of limitations only applied for claims of sexual harassment. The 3-year statute of limitations will be in place as of claims arising on or after February 15, 2024.

The new laws should help fill the void left by the New York’s Adult Survivors Act, which expired on November 24, 2023. The now-expired law gave survivors of sexual assault who were 18 or older at the time of the alleged abuse a one-time opportunity to file civil lawsuits against their abusers, even when the statute of limitations had run out. The new limitations on release of claims and the extension of the time to file complaints of unlawful discrimination are intended to strengthen the rights and protections of New York employees generally.

To read how Castaybert PLLC can assist you with employment law matters, click here.

November 29, 2023

JAMS just published a useful article about navigating mediation claims against corporate officers and directors. Often these claims are derivative claims from a related suit against the company and are brought by a shareholder or LLC interest holder alleging the officer or director breached a fiduciary duty of care owed to the company and shareholders. These claims are incredibly complex because of the multitude of parties and attorneys navigating issues between the individual director or officer, the company, the board, and potentially an insurance company that provides the director or officer liability insurance.

The article focuses on four major issues to consider when engaging in a mediation involving an officer or director, including:

Potential disagreement among the directors and officers involved because of the varying defenses of each party.
Negative publicity for the company or individual director or officer.
The status of the case and whether a pending motion to dismiss will have an effect on the derivative claims.
The amount of directors and officers liability insurance coverage.

To read the full article from JAMS, click here.

To read how Castaybert PLLC can assist you in complex corporate mediations and director and officer liability and insurance coverage litigation and counseling, click here and here.

November 27, 2023 –

André Castaybert, principal attorney of Castaybert PLLC, has received a “Preeminent” AV rating from the 2024 Martindale-Hubbell peer review. The award represents the highest level of professional excellence an attorney can receive from Martindale-Hubbell and signifies that a large number of the lawyer’s peers rank him or her at the highest level of professional excellence for their legal knowledge, communication skills and ethical standards.

This marks the 11th consecutive year that André has received this award.

Readers looking for a short overview of the litigation process in state and federal courts in New York can consult the article linked here by Dewey Pegno & Kramarsky LLP. The article succinctly explains the structure of the civil court system, the roles of judges and juries, limitations, pre-action considerations, commencement of proceedings, evidence presentation, interim remedies, available remedies, enforcement mechanisms, class actions, appeals, and recognition and enforcement of foreign judgments, among other topics.

For information about how CASTAYBERT PLLC can assist you with commercial litigation and arbitration, click here and here.

November 7, 2023

On September 14, 2023, the Governor of New York Kathy Hochul signed Assembly Bill 836 into law, restricting New York employers access to prospective or current employees personal, private social media accounts. New York now joins over 25 other states that have enacted similar laws related to the scope of workplace use of personal social media accounts. Job applicants and employees in New York will now have increased privacy for social media posts if their accounts are private and used exclusively for personal purposes.

The key changes of the bill include:

Prohibiting employers from requesting or requiring job applicants or current employees to disclose their social media login information to the employer.
Prohibiting employers from requesting or requiring job applicants or current employees to login and access their personal accounts while in the presence of the employer.
Prohibiting employers from requesting or requiring job applicants or current employees to reproduce photos, videos, or other information on their personal social media accounts.
Prohibiting an employer from discharging, disciplining, or penalizing an employee for refusing to disclose information related to their personal social media account.
Prohibiting an employer from refusing to hire an applicant if they do not disclose information related to their personal social media account.

It is important to note these changes only apply to “personal” social media accounts, which are defined as accounts or profiles on an electronic medium “used exclusively for personal purposes”. Further, this law only applies to private accounts, as employers may still look at or use information that is publicly available on a prospective or current employees public social media accounts. Employers may lawfully access an employee’s private social media account if the social media account is used for the employers business purposes, but must provide the employee with notice of their right to request access.

It is advisable for employers who are based in or operate in New York to review and modify their policies on prospective and current employee social media accounts, as these changes become effective March 12, 2024.

To read how Castaybert PLLC can assist you with employment law matters, click here.