On The Fault Lines

By Vyvyan Tenorio
The Deal Newsweekly November 30, 2007


In his 30 years or so as a litigator, New York lawyer Richard Cohen has seen all manner of courtroom battles—from sensational headline grabbers to run-of-the-mill contract disputes. But for the one-time sole practitioner who joined Fox Rothschild LLP last year, obscure cases are sometimes the most gratifying.

Take, for example, when local artist Julie Harvey sought his help, claiming her copyright to a major painting had been wrongfully obtained by another individual. Or more recently, when a dozen Muslim detainees in a New York correctional facility had complained their religious rights were being violated.

None of these pro bono cases would have warranted publicity for Cohen, or the associates who he says have devoted "a heck of a lot of time" with him. But as Cohen, 54, with close-cropped hair and an easy smile, puts it, it's about doing something that you believe is right. "That sounds like a cliché, but if you don't believe necessarily in the client or the client's cause, believing that the client has a right to representation is perhaps the highest cause," he says.

Sitting in his cluttered office surrounded by paintings from local artists he has represented, Cohen says his professional experience has revolved around employment discrimination, corporate disputes, securities litigation and arbitration. But he speaks more passionately about matters that perhaps capture his interests and values.

As a student at New York Law School, Cohen was drawn into litigation work surrounding prison conditions in city jails. The civil suits arising from the Attica prison riots in 1971 offered him hands-on experience, which might explain the roots of his prison reform advocacy.

A Brooklyn native, Cohen worked for a time at Manufacturers Hanover Trust Co. before joining New York law firm Spengler Carlson Gubar Brodsky & Frischling (which became Thelen Reid & Priest). In 1988, early in his tenure there, he worked on a $1.7 billion tender offer by Barris Industries Inc. for newspaper owner Media General Inc. He also was called in on the shareholder litigation involving arbitrageur Ivan Boesky and his wife, Seema, whom his firm represented in one of a series of shareholder suits. "It was exciting to be involved in that enormous fray," says Cohen, who found himself racking up 15-hour days every day for weeks, criss-crossing the country to take depositions.

In 1991, he decided to set up his own, smaller practice, starting Akabas & Cohen in New York with ex-Spengler partner Seth Akabas. He worked there for 15 years. Eventually tiring of the administrative burdens, however, Cohen sought a change of pace to devote more time to practicing law. He joined Fox Rothschild, a 100-year-old middle-market law firm founded in Philadelphia that has expanded in recent years to about 400 lawyers and 14 offices nationwide.

Cohen, who chairs the litigation department in the 30-lawyer Manhattan office, says his involvement with Volunteer Lawyers for the Arts brought him in contact with artists such as Harvey. In 1998 Harvey encountered a copyright issue during a contest that she had won with an oil painting called "Liberty" depicting 19th-century lower Manhattan. Cohen won the trial for Harvey, who in gratitude drew his visage on the painting, an enlargement of which was installed on a downtown building. Art constitutes a big part of Cohen's and the firm's practice today.

These days, Cohen is still trying to thrash out a settlement of the case in behalf of Muslim detainees. Two years ago he began representing 12 inmates at the Westchester County Department of Corrections in Valhalla, N.Y., who had filed individual, pro se complaints that they were not being served halal food, even though Jewish inmates were given kosher food. "After studying it," he recounts, "I believed their complaints had just cause under the First and 14th Amendments to the Constitution."

He adds: "Their case seems to fall along the fault line of many different things—being a prisoner in a society that incarcerates more people than any Western society, that has trouble dealing with race issues, that doesn't look at Muslims and their religion with much favor at this point." It was in many ways, he suggests, a case that perhaps others wouldn't want to touch for those reasons.

Since the complaints were filed, many of the detainees have either been transferred or released. County officials now claim to serve appropriately prepared food to the Muslim prisoners who remain, although it's somewhat difficult to ascertain if that's true, Cohen says.

Asked what the firm thinks about the case, Cohen points to numerous adulatory e-mails he received from across the firm. But he treasures one letter, in particular, from one of the inmates, who sent a personal note of appreciation for all his efforts in their behalf and in behalf of future inmates. "You sort of feel like you did something," he says, "albeit small."

Fox Rothschild LLP is an Industry Partner in the New York Staffing Association. Please contact Rich Cohen, rcohen@foxrothschild.com, with any questions or comments.

New York Association Wins National Awards
The New York Staffing Association was honored at Staffing World 2007, the annual convention and expo of the American Staffing Association, held Oct. 9–12 in San Antonio. NYSA received a superior merit award for its outstanding programs and chapter efforts in 2007. It also received a superior merit award for its outstanding legislative efforts.

The American Staffing Association evaluated state associations on their support of the staffing industry through chapter meetings, special events, educational seminars, and community outreach efforts.

State staffing associations that won legislative merit awards were those that took positive and effective steps to make sure legislators understand the role of flexible jobs and how the staffing industry benefits the economy. These steps included face-to-face meetings, testimony at legislative hearings, letter-writing campaigns, state Capitol Hill days, and political activities.
NYSA is a statewide association of staffing companies in New York. The staffing industry in New York employs 427,464 temporary and contract employees per year.

ASA represents the $87 billion U.S. staffing industry. Member companies operate more than 15,000 offices across the nation and account for 85% of U.S. industry sales.

Congress, New York Take Up Worker Misclassification

By: Stephen Dwyer, ASA Deputy General Counsel
ASA Staffing Week, July 30, 2007

Both the U.S. House of Representatives and New York State Department of Labor have turned their attention to misclassification of workers as independent contractors rather than as employees.

At a July 24 hearing before two subcommittees of the House Committee on Education and Labor, representatives questioned whether the U.S. Department of Labor is doing enough to crack down on worker misclassification. Noting that businesses intentionally misclassify workers to avoid paying employment-related costs such as workers' compensation and Social Security, one House member characterized the problem as resulting from a lack of adequate "targeted enforcement."

While worker misclassification is not itself a violation of the Fair Labor Standards Act—a major law enforced by DOL—employers may be in violation if they fail to pay required minimum wage or overtime. Misclassification also may violate laws enforced by other federal agencies or by state agencies.

Meanwhile, the New York state labor commissioner announced that the state's department of labor will increase enforcement efforts against employers that misclassify employees. According to the department, the number of independent contractors has steadily increased in recent years. While the department has not yet unveiled its enforcement plan, the plan is expected to affect many industries.

To learn more about the 20 factors used to determine how to classify workers, see the sixth edition of the ASA book Co-Employment: Employer Liability Issues in Third-Party Staffing Arrangements.

New York Law Will Cut UI Costs

By: Toby Malara, ASA Government Affairs Counsel
ASA Staffing Week, July 16, 2007

Legislation amending the New York state law governing how liability for unemployment benefits is charged to responsible employers was recently signed into law by Gov. Eliot Spitzer. The new law will go into effect Jan. 1, 2009.

Under prior law, the last employer of an individual who filed a valid claim for unemployment insurance was assessed 100% of benefits for the first seven weeks of the benefit period. That meant that some employers, like staffing companies, had to pay for seven weeks of benefits for employees who had worked for as few as one or two days.

The new law corrects this unfair situation by making employer benefit charges for short-term employees proportional to the wages actually paid to the employees. Under the amendment, if seven weeks of benefits would exceed the wages paid to the employee, the last employer will simply have to notify the state Department of Labor, which will recalculate the benefit amounts so that the employer is charged only what the employee was paid. The balance of the claim would be shared proportionately by all employers during the base period—the first four quarters of the last five completed calendar quarters prior to the filing of the benefit claim.

Special thanks are due to members of the New York Staffing Association, an ASA-affilated state chapter, and NYSA's lobbyist, Peter Crause. Their hard work and dedicated grassroots campaign efforts were a driving force behind this major win for the staffing industry.

New York Association Wins National Awards

The New York Staffing Association was honored at Staffing World 2006, the annual convention of the American Staffing Association, held Nov. 7–10 in Las Vegas. NYSA received a superior merit award for its outstanding programs and chapter efforts in 2006. It also received a superior merit award for its outstanding legislative efforts.

NYSA Metro chapter president Caress Kennedy, CSP, accepted the awards from ASA chairman David Bartholomew, CEO of Staffmark.

The American Staffing Association evaluated state associations on their support of the staffing industry through chapter meetings, special events, educational seminars, and community outreach efforts.

State staffing associations that won legislative merit awards were those that took positive and effective steps to make sure legislators understand the role of flexible jobs and how the staffing industry benefits the economy. These steps included face-to-face meetings, testimony at legislative hearings, letter-writing campaigns, state capitol hill days, and political activities.

NYSA is a statewide association of staffing companies in New York. The staffing industry in New York employs 117,320 temporary and contract employees per day.

ASA represents the $82 billion U.S. staffing industry. Member companies operate more than 15,000 offices across the nation and account for 85% of industry sales.