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DLSE REPOSTS MANUAL AND OPINION LETTERS The state’s Division of Labor Standards Enforcement will reinstate Web access to official legal interpretations of wage-and-hour laws, one week after its decision to take the material offline triggered a public outcry from employee rights advocates. The DLSE had said it removed its enforcement manual and an archive of opinion letters as part of a review of all administrative regulations mandated by a recent executive order signed by Gov. Arnold Schwarzenegger. But plaintiffs attorneys charged the government with censorship, since the legal material was an important resource that had not actually been rescinded under the executive order. Dean Fryer, a spokesman for Department of Industrial Relations, said the letters and manual, which are interpretations of existing law rather than binding regulations, should be back online by today, along with a new link for the public to submit comments on the material. “Our intent is to ensure that [the information is] not misunderstood as being enforceable as law,” said Fryer. “So if there’s any ambiguities we want to hear from the public and the users regarding that.” Fryer downplayed the impact of the public outcry on the labor commissioner’s decision to repost the material online, but acknowledged that it “had some impact in looking at how we can solicit input for comment from the public and the users.” — Alexei Oreskovic LAW PROFESSOR LOSES TAX FIGHT WITH N.Y. NEW YORK — A controversial tax policy that enables New York to collect roughly $100 million from out-of-state residents — but which forces a Cardozo Law School professor to pay tax to two states on the same income — was unanimously upheld Monday by the states’s highest court. Chief Judge Judith Kaye said the application of the so-called “convenience of the employer test” in determining the taxes owed by professor Edward Zelinsky is constitutionally sound and consistent with reasonable public policy objectives. She said New York “need not subsidize” Zelinsky for opting to work at times from his Connecticut home. “Allowing this taxpayer to allocate his income to Connecticut when he stays home to do his work in connection with his teaching activity would enable him to avoid paying taxes that his colleagues who do that work at home in New York — or at the law school — pay,” Chief Judge Kaye wrote for the court in Zelinsky v. New York State Tax Appeals Tribunal, 129. The Zelinsky case has attracted considerable attention from other Northeast states, which are virtually unanimous in condemning New York’s tax policies, as well as an unusual amicus curiae from the Connecticut attorney general supporting the law professor. It stems from New York’s tradition of imposing income tax on people who work in that state but live elsewhere. The tax policy was adopted to ensure that people reaping the benefits of New York City’s job market paid their fair share of taxes for the various services that make their employment possible. A problem, however, arises when someone lives out of state and performs work out of state for an in-state employer. Such is the case with Zelinsky. The professor contends that since he pays income tax to Connecticut on the salary he earns while working from home, he should not be doubly taxed by New York on the exact same income. New York does not entirely disagree, although it suggests that it is Connecticut — not New York — that should credit Zelinsky so he is not doubly taxed. — The New York Law Journal APPEAL CHALLENGES CASE ON CIVIL UNIONS MINEOLA, N.Y. — Appealing from a Nassau County Supreme Court decision in a first-impression case involving gay rights, a New York hospital has filed a brief asserting that public policy and statutory law prohibit a plaintiff from proceeding with a wrongful death claim as a same-sex spouse. St. Vincent’s Hospital in New York has submitted its 35-page brief, which argues that Justice John Dunne erred in April when he determined that the same-sex partner of an attorney who died after being struck by a hit-and-run driver could pursue a wrongful death action as a spouse under Vermont law. In Langan v. St. Vincent’s Hospital, 4702-03, the hospital’s appeals brief asserts that neither New York law nor the federal Defense of Marriage Act permitted Justice Dunne to grant standing to the plaintiff, John Langan, who claims that St. Vincent’s committed malpractice in February 2002 when it treated his spouse, Neil Conrad Spicehandler, a solo practitioner in Massapequa, N.Y., at the time. Spicehandler was struck while walking in midtown Manhattan by a now-incarcerated driver during a three-day hit-and-run spree targeting pedestrians. He was admitted to St. Vincent’s for a fractured leg but died three days later from an embolus, according to Langan’s court papers. Langan and Spicehandler were joined in a civil union in Vermont a few months after the state passed its law in July 2000. Vermont Civil Union Law provides that same-sex couples joined in a civil union have all of the same benefits, protections and responsibilities as those granted to spouses in traditional marriages. — The New York Law Journal

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