Mat founded his law firm in his kitchen in 2004. He has built it to be a multi-million dollar firm in 3 states. In March he left it all behind to serve his country. Mat is a Lt. Col. in the NY Army National Guard and is currently in Afghanistan for 400 days. This is his 3rd tour since 2008.

His deep rooted passion for his country is unmatched by many but should be recognized by all. Mat also requires that the firm provide winter coats to homeless veterans every Christmas, turkeys for all veterans for every Thanksgiving.

Every month there is a charitable organization that is donated to. There is an unknown big heart behind that rough and tough exterior. It’s pretty refreshing to see someone who puts human kind over the all mighty dollar.

Date added: May 14, 2012
Submission Type: New Hire
Current employer: Tully Rinckey PLLC
Current title/position: Of Counsel
Industry: Legal Services
Position department: Legal
Previous Employer: Law Office of Robert J. Rock
Duties/responsibilities: Rock represents creditors and debtors in Chapter 7 and 13 bankruptcies. In addition, he will expand the firms’ Chapter 11 practice, which helps businesses of all sizes reorganize and save local jobs. In an effort to build relationships with potential new clients at Tully Rinckey PLLC, Mr. Rock also provides free bankruptcy consultations.
Company headquarters: Albany, NY

Wal-Mart is known for its low prices, but the company’s most recent headlines highlight its low wages. The retail giant has agreed to pay its current and former employees nearly $4.83 million in unpaid overtime following an investigation by the U.S. Department of Labor’s Wage and Hour Division. Wal-Mart also agreed to pay $463,815 in penalties for its error, which involved the misclassification of some employees as exempt from the overtime pay guarantees of the Fair Labor Standards Act (FLSA).

The FLSA states that covered, nonexempt employees are entitled to overtime pay at a rate of not less than one and one-half times their rate of regular pay. Overtime pay is due for every hour worked over 40 hours in a seven-day workweek. Certain job functions may make an employee exempt from this FLSA protection, however.

Until 2007, Wal-Mart classified its vision center managers and asset protection coordinators as exempt from overtime pay requirements. The company corrected the classification for these employees that year following the Department of Labor investigation, and the resulting dispute over back wages and penalties has only now been resolved.

“Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations,” said Secretary of Labor Hilda L. Solis, according to a Department of Labor news release. “Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned.”

Are You Covered or Not?

More than 130 million U.S. workers are covered by the FLSA, which establishes standards for minimum wage, record-keeping and youth employment in addition to overtime pay. Whether or not an employee is covered depends on the type of employer and the employee’s specific duties.

All employees are covered within organizations that earn at least $500,000 in annual gross sales or engage in interstate commerce. Employees of hospitals, public agencies and most schools are also covered.

Executives, administrative workers, outside sales agents, certain professionals and some computer workers are exempt from the minimum wage and overtime pay standards. In each of these employment categories, the Department of Labor has established several tests that must be met in order for an employee to be considered exempt. In Wal-Mart’s case, the Department of Labor disagreed with Wal-Mart’s assertion that its vision center and asset protection employees passed these exemption tests.

“It’s amazing how many companies — big employers, small employers — are running afoul of the Fair Labor Standards Act,” said Graig F. Zappia, an employment law attorney with Tully Rinckey. “But violations can happen particularly easily when you’re dealing with large employers like Wal-Mart. There are not only so many employees but also so many job functions, and this can increase the odds that the employer will interpret the FLSA incorrectly.”

Repeat Offender

The six-figure civil penalty leveled against Wal-Mart is due to the “repeat nature of the violations”, according to the Department of Labor news release. One of Wal-Mart’s past FLSA violations was settled in 2007 and also involved overtime pay. The company paid $33.5 million plus interest to more than 86,000 workers for unpaid or underpaid overtime.

Wal-Mart’s overtime underpayment relates to another rule dictating how overtime pay should be calculated. Overtime workers are entitled to one and one half times their “regular rate”, which may actually be higher than their basic hourly rate. This is because the “regular rate” includes any bonuses, geographical differentials and other incentives earned in addition to the hourly rate. By failing to include these additional sums in their calculations, Wal-Mart short-changed even those employees who were correctly classified as eligible for overtime.

Though FLSA lawsuits typically originate with employees who discover they’ve been underpaid or otherwise mistreated, the Department of Labor may also take legal action on its own when dealing with repeat offenders.

“Once you’re on the government’s radar for previous violations, you may find yourself receiving random audits,” said Zappia.

Common Violations

FLSA violations don’t begin and end with misclassified employees and miscalculated overtime pay. It’s also not uncommon for employers to allow or require employees to perform duties off the clock. Employees who are forced to set up before clocking in, clean up after clocking out or work through unpaid breaks are legally entitled to compensation.

“People often think they’re doing the right thing for their employers by working late off the clock or working through their lunch hour,” said Zappia. “But the reality is that you need to be paid for all the hours you work. We even see companies in this economy saying, ‘We won’t pay you overtime, but we’ll give you comp time instead.’ But that’s not really a valid solution.”

Comp time, or paid time off, is sometimes offered as an overtime pay alternative to employees who have busy weeks and slow weeks. By working longer hours during peak times, these employees can theoretically earn extra days off to spend during the slow periods. But this is illegal under the FLSA for two reasons. First, the FLSA requires that overtime be paid in cash, and second, workers in this arrangement often earn only one hour of comp time for every hour of overtime, rather than one and one-half hours.

Workers who suspect their employers of violating their rights under the FLSA should contact an employment law attorney to consult on their situation.

“We’ll often meet clients who believe they were wrongfully terminated, and once we get down to the crux of the matter, we’ll discover they were salaried when they really should have been classified as hourly employees with potential for overtime pay,” said Zappia. “A lot of people don’t know enough about the act to understand when these types of violations are taking place.”

Tully Rinckey Family & Matrimonial attorney Barbara King appears on WGNA to provide legal guidance for listeners on concerns surrounding child custody living arrangements, inheritance in a divorce and child custody payments.

Tully Rinckey Criminal Defense Attorney Michael Macomber appears on CBS 6 to warn all high school students of the dangers of poor choices on prom night. Macomber explains how one poor choice can lead to loss of student loan eligibility, heavy fines and even jail-time.

Jim Messmer went missing. He disappeared, vanished into the ether.

Where was Jim Messmer? What had happened to him?

Those were questions asked by Michael and Kim Cerone, a couple from Niskayuna who knew Messmer as the amiable man who had put up their vinyl backyard fence. But when the fence started to list and lean just a month after it went up last July, suddenly the friendly contractor was nowhere to be found.

For months, he didn’t answer his phone or return messages. It wasn’t until March, eight months after the $6,400 installation, that they reached the contractor. He said he’d come look at the fence.

But Messmer never showed. And in the months since, he has again failed to respond to their calls and messages.

The Cerones were willing to be forgiving, despite a gate they can’t open and a fence that careens around their back yard like a drunken frat brother. They were willing to help Messmer pay for additional materials if he would just fix his shoddy work. They were willing to accept a legitimate reason for his disappearance. “All he had to do was call us and tell us about it,” said Michael Cerone, a retired Colonie police officer.

But Messmer remained a missing man.

Last week, I tried to track him down, but it was no easy task. In fact, I couldn’t find a local listing or address under his name.

There’s a reason for that: Messmer, I have since learned, isn’t Messmer. He appears to be James Messmore, identified in public records as a 50-year-old who lives in Carlisle, Schoharie County.

Messmore is the owner of Affordable Fence, a company that generated seven complaints to the Better Business Bureau since 2009 and more than its share of liens and court judgments, according to public records.

But when Messmer — I mean Messmore — worked for the Cerones, he not only had a new surname, but his company had been dubbed American Fence. So Messmore’s history of poor workmanship didn’t turn up when the couple searched online for complaints.

You won’t be surprised to learn that Messmore didn’t return my phone calls. So on Friday, I drove over to the Affordable Fence mailing address in Schenectady. When I pulled up to the house, I was stunned to see a man, yes, putting up a fence. Whoa! Had I found Messmore?! “I know him, but I’m not him,” said the man, who identified himself as Don Anderson, owner of Four Season Fence.

Anderson said he used to work for Affordable Fence, and said the house at 23 Livingston Ave. belongs to one of Messmore’s relatives.

So wait. Messmore is in the fence business, but doesn’t install them at relatives’ homes? “It’s too small a job,” Anderson said. “That’s why he threw it to me.”

Or maybe he doesn’t want to inflict loved ones with a fence that would fall over.I asked Anderson several times if he was Messmore, and he insisted that he wasn’t. I also told him a little about the Cerones’ complaint, and about how Messmore had apparently used a different name before sticking the couple with subpar work.

“That’s not nice,” Anderson said, sounding not a bit surprised.

No, not nice at all.

I left Anderson and drove to 34 Lark St. in Scotia — the business address Messmore had used with the Cerones. Unfortunately, I looked in vain. It appears to be a phony address.

The Cerones say Messmore, identified only as “Jim” on his business cards, said all the right things. He didn’t ask for money up front. He didn’t pressure them. He seemed legit and experienced.

But when he put up the 208 feet of fencing, he failed to install concrete footings that would keep the fence’s posts from shifting as the ground moves. Contractors tell the Cerones it will take about $2,500 to fix the problem.

The couple may take Messmore/Messmer to court, but the contractor’s use of a fake name might make legal action more difficult.

“The biggest thing is going to be trying to serve him, and making sure they’re serving who they think they’re serving,” said Michael Macomber, an attorney at Tully Rinckey in Colonie.

Even if the Cerones win in court, there’s no guarantee Messmore would actually pay. They could end up throwing good money after bad, Macomber said.

And in the meantime, the couple’s leaning fence will likely get worse.

Messmore or Messmer? Either way, he’s created a mess.

David A. Fallon, law clerk promoted to title of associate after passing the New York State bar examination.

Tully Rinckey Senior Bankruptcy Counsel Bob Rock joined the CBS 6 Answers Team Wednesday night to take free live calls from viewers who had questions on bankruptcy.

Bob Rock will be back on Wednesday May 23^rd from 5:00pm – 7:00pm to take more live calls on the CBS 6 nightly newscasts. Tune in and chat with Bob to receive free bankruptcy guidance.

“It starts out as an innocent night, and it can turn devastating in the blink of an eye. Raising this awareness allows parents to achieve a great deal in making sure that their children make wise decisions on that night,” said Carr, a partner at Tully Rinckey PLLC.

Prom Night Penalties and Consequences

Offense: Drinking and Driving

According to the National Highway Traffic Safety Administration, one-third of alcohol-related traffic fatalities involving teens each year occur during what is referred to as ”prom-graduation season” (April-June). The Traffic Safety Administration also reports that 53 percent of students surveyed admitted to drinking more than 4 drinks on prom night.

A first-offense aggravated DWI carries a minimum fine of $1,000, up to one year in jail and loss of license for 90 days. A first-offense DWAI requires a minimum fine of $300, possible 15 days in jail and loss of license for 90 days.

“What also can’t be forgotten is that anyone convicted of a DWI in New York also must have an ignition interlock device installed in his or her vehicle for at least six months. The new penalties under Leandra’s Law become even more severe if someone is found to be driving drunk with a minor in the car. Then you are looking at mandatory jail time,” said Carr.

Offense: Sex with someone under 17

According to a Centers for Disease Control (CDC) and Seventeen Magazine study, 14 percent of girls admitted to having sex on prom night. Carr reminds young adults that New York law defines sex with anyone incapable of consent, such as someone who is intoxicated as 3^rd degree rape which is punishable by up to four years in prison.

Offense: Drug Possession and Student Loans

According to the Higher Education Act, any student who is convicted of the possession or sale of illegal drugs becomes ineligible for federal student loan money. Federal Pell Grants, Perkins Loans, PLUS Loans, Stafford Loans and Work Studies are all denied after conviction. All students convicted after already receiving the federal loans are required to pay all monies back and become ineligible for future loans. Those first-offense students convicted for drug possession become ineligible for one year while repeat offenders face indefinite ineligibility. First-time offenders convicted under the sale of illegal drugs face a mandatory two-year suspension of benefits while repeat offenders face an indefinite suspension.

“Peer pressure can make teenagers do things they would not normally do. If those things include drinking and driving, sexual intercourse and drugs then even first-time offenders who have spent the last 17 or so years doing everything right will be in for a rude awakening with just one mistake,” said Carr.

For more information please contact Randy Simons at (518) 640-1260 or at rsimons@1888law4life.com.