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  • Nursing Home Staffing Levels Requirement Update

    In June 2021, former Governor Andrew Cuomo approved a law that established minimum staffing levels for nursing homes and required nursing homes to boost spending on resident care. Governor Kathy Hochul postponed the initial enforcement of the law through the end of March 2022 and declined to extend the postponement of this controversial law in her March 31, 2022 Executive Order. This means that the law and rules about minimum staffing levels are now in effect and fully enforceable. Briefly, the law requires that nursing homes spend at least 70% of their revenue on direct patient care and 40% on resident-facing staffing. The law also requires that nursing homes meet a daily average of 3.5 hours of nursing care per resident per day and post information regarding nurse staffing for each facility. There are potential civil and monetary penalties for noncompliance. Mitigating factors may include (1) extraordinary circumstances facing the facility, such as officially declared emergencies or natural disasters; (2) the frequency of the violations of the facility; and (3) the existence of a nurse labor shortage in the area of the nursing home. Nursing facilities should keep careful documentation of their efforts to comply and mitigating factors to avoid or diminish penalties. It is important to note that a nursing home’s inability to secure sufficient staff is not a defense if the lack of staffing was foreseeable and could be planned for or involved typical or routine staffing needs or absenteeism. The law also requires that hospitals establish staffing committees. These committees must submit staffing plans to the Department of Health, as well as oversee and implement such plans at each hospital. The Staffing Committee must be made up of at least 50% nurses and up to 50% administrators. To slightly ease the burden on these facilities, Governor Hochul renewed the State’s declaration of a disaster emergency related to staffing shortages in health care through April 30, 2022. This portion of the Executive Order suspended certain restrictions and modified certification regulations to allow medical workers to perform additional jobs, such as testing for COVID-19 and influenza, or administering vaccines. If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, here at (585) 258-2814. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

  • Keneally Recognized as a Power 20 - Labor & Employment Law

    Underberg & Kessler is proud to share that our partner, Paul F. Keneally was chosen to be on The Daily Record’s Power 20 Labor & Employment Law list for 2022! “The people on this list help companies navigate countless employment challenges that can present difficulties even in the best of times. The last two years have been far from the best of times as COVID-19 has led to endlessly changing rules for employers of all sizes and in all industries. With barrages of updates at the federal, state and local levels, these attorneys had to provide new guidance to their clients constantly — sometimes multiple times in the same day. And while they were scrambling to stay abreast of the rules their clients had to follow, they were also adapting to new rules they had to follow in the practice of law.” For more on this recognition, click HERE.

  • Probing New York’s Reframed Role and Protections for Whistleblowers

    On the eve of All Hallows’ Eve 2021, New York altered the State’s principal labor law and sprinkled assorted tricks and treats into New Yorkers’ employer-employee relationships. The New York State Legislature amended its bedrock labor statute to recalibrate statutory protections afforded whistleblowers and would-be whistleblowers in an act that took effect earlier this year. The newly minted Labor Law § 740 redefines the legal landscape for employers and employees in the context of whistleblowers and potential whistleblowers. The amendment incorporates some crucial changes that employers, employees, and former employees alike must know to protect their rights and interests every day and/or during the trials of litigation. Navigating the New Normal: Advice for Employer & Employee New Labor Law § 740 may have employers finding the taste in their mouths resembling that of New Coke. The strategic and market effects of Labor Law § 740 precipitate employers’ proactivity in fostering attentive, compliant, open, and structured work environments for fear of consequence. These are conditions that employers can manage. The new Labor Law § 740 all but requires this proactive approach when the statute removes previous statutory prerequisites to which New York’s employers grew accustomed and incorporates subjective standards. The vintaged Labor Law § 740 provided that its protections attached only if “the employee has brought the activity, policy or practice in violation of law, rule or regulation to the attention of a supervisor of the employer and has afforded such employer a reasonable opportunity to correct such activity, policy or practice.” Labor Law § 740. Effectively gone is that requirement. Now, any “employee [who] reasonably believes that the supervisor is already aware of the activity, policy or practice and will not correct such activity, policy, or practice” immediately may disclose to the appropriate administrative, governmental, or regulatory body the consummated, planned, or threatened activity, policy, or practice in violation of applicable standards. An employee now need not afford his employer an opportunity to address potential violations of administrative, governmental, or regulatory provisions internally before contacting overseeing authority. An employee’s reasonable belief alone provides sufficient excuse from an employee’s duty to rely upon an employer’s internal processes to address a potential whistleblower’s concerns. The fresh Labor Law § 740 also bestows on independent contractors the honorific of inclusion in the eligible class of whistleblower. No longer is a whistleblower’s status as an independent contractor a defense to alleged retaliation against that whistleblower for his or her whistleblowing. New carve-outs and clarifications expand protections to areas and conduct most assumed already covered. Confirmed is the reality that an employer neither should threaten nor should engage in retaliation against a former whistleblowing employee through efforts to interfere with the former employee’s subsequent employment. Codified is the expectation that an employer’s leveraging the immigration status of an employee, a former employee, or any of his or her family members for the employer’s advantage either to retaliate against or chill whistleblowing is strictly forbidden. The nexus of the changes in new Labor Law § 740 and proper responses of employers and employees is simple in this new normal. Employers must streamline and reconsecrate their internal reporting procedures as bulwarks against conduct in violation of applicable statutes and regulations and unnecessary regulatory interventions from employees seeking administrative and governmental oversight as a first resort. Employees may choose to rely upon only internal processes of employers whom they trust and otherwise may request public intervention. Efficient navigation of the employer-employee dynamic now compels employers to do more than the statutorily minimum posting of “notices [of employee’s rights under Labor Law § 740] …conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.” Labor Law § 740. Employers must do this and more. Employers must ensure that their processes for employees’ reporting of potential conduct in violation of applicable statutes and regulations are clear, understandable, transparent, and responsive. Proper recording of compliance and all efforts to ensure compliance with all applicable statutory and regulatory authority will become a paramount best practice for proactive employers. All internal processes for addressing employees’ concerns about potential or threatened violations of applicable standards should involve independent decision makers insulated from roles that directly affect a potential whistleblower’s employment status. The likelihood of provable or feared retaliation will diminish in direct proportion with a reduction in the potential for retaliation. This serves the employer’s goal of encouraging internal resolution, presents the employer with firmer ground in the event of oversight or litigation, and instills confidence in the process among employees. Employers now function in this space without governmental intervention to the extent that employees allow. Employers must impress upon their employees that the employers are adept at addressing the employees’ concerns and committed to compliance. Meanwhile, employees now enjoy the right to utilize only those internal processes that they believe will be effective and not expose them to the risk of retaliation. Battlefield Redefined: If Things Go Bad The lowering of thresholds, broadening of standards, and elimination of affirmative defenses to allegations of retaliation against whistleblowers and potential whistleblowers widens the thresholds to litigation and shifts economic realities of litigation. The new Labor Law § 740 catalyzes additional litigation and increases the value of expected settlement payments. A whistleblower enjoyed a right to demand five classes of traditional relief if he or she proved that he or she suffered retaliation under the older vintage of Labor Law § 740. An employee can receive relief in one or more classes of prescribed relief. The new Labor Law § 740 adds two additional subsections of potential relief in allowing the imposition of a civil penalty up to $10,000.00 and an award of punitive damages if an employer’s violation was willful, malicious, or wanton. The ever-alluring prospect of punitive damages for whistleblowers or potential whistleblowers will drive litigation costs. Employers will entrench confidence in recognizing the heavy burden of establishing willful, malicious, or wanton violations that an employee must bear at trial. Employees will demand higher settlement payments for claims whose potential value only increases with quixotic tilting for potentially boundless punitive damages. The end result will be either increased costs litigating through trial or increased settlement figures. New York extended the statute of limitations for claims of alleged retaliation against whistleblowers or potential whistleblowers from one year to two years commensurate with the extension of protection to former employees in new Labor Law § 740. These additional 52 weeks add another year’s worth of potential claimants for employers and permit employees another 365 days to determine whether they have suffered from retaliatory conduct. The most consequential change in the amended statute is the removal of two key affirmative defenses. First, the new Labor Law § 740 entitles independent contractors to carry the mantle of whistleblower or potential whistleblower to assert claims of retaliation when status as an independent contractor previously vitiated an individual’s basis to assert claims as a whistleblower. Second, an employer’s proving that no underlying violation of an applicable statute or regulation occurred presented a defense to a whistleblower’s or potential whistleblower’s allegation of his or her employer’s retaliation for disclosing such a violation under the old Labor Law § 740. The reasoning was simple: An employer could not punish a whistleblower or potential whistleblower for reporting a violation that never occurred. The equation differs now. The new Labor Law § 740 reframes blowing whistles as a civic responsibility permitted greater latitude. No whistleblower or potential whistleblower will suffer consequences for reporting the employee’s perceived violations of applicable standards to administrative, governmental, and regulatory bodies as a surveillance means of keeping his or her employer honest and accountable to the appropriate authorities under the new scheme. Employees now may act more freely to report or raise borderline or questionable conduct of their employers that reasonably may be in violation of applicable standards. A whistleblower or potential whistleblower may assert claims that he or she has suffered retaliation for an actual or threatened exercise of his or her rights to report violations of statutory and regulatory authority to the proper administrative, governmental, or regulatory body even if no violation occurred. A claimant simply must have held a reasonable belief that such a violation occurred or would occur. The new Labor Law § 740 thaws any previous chilling in New York’s guidelines for whistleblower’s reporting to administrative, governmental, and regulatory bodies. A good-faith belief that a violation has occurred or will occur now will defeat an employer’s defense that retaliation cannot occur absent a violation. An employer’s best defense in this context will be a direct assault on the reasonability of the employee’s belief. There are defensive opportunities for employers and cause for restraint for employees based upon their level of sophistication and familiarity with the standards of which they now must allege that they held a good-faith belief that a violation occurred. However, the standard of reasonability is a permissive one that favors the would-be whistleblowing employee. The new Labor Law § 740 inflates the economics of litigation regarding whistleblowers. Employers’ creation and maintenance of proper procedures will reduce the need for employers and employees alike to risk the uncertainties of litigation and ensure New York’s desired compliance. Proactivity of employers is crucial as the best prophylactic against litigation costs. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Aaron M. Griffin, the author of this piece, here, or at (585) 258-2810. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

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  • Colin D Ramsey - Health Care Attorney | Buffalo NY - Underberg & Kessler

    Colin D. Ramsey Partner Buffalo, NY (716) 847-9103 (716) 847-6004 cramsey@underbergkessler.com View Colin's LinkedIn Send Colin a Message Civil litigator. Change agent. Colin Ramsey believes lawyers have the unique ability to change the world we live in. A partner in the Firm’s Litigation, Health Care and Labor & Employment Practice groups, Colin represents clients in the areas of construction law, municipal defense, and labor & employment and health care litigation. Whether it is a routine matter or a highly visible case, Colin believes every legal challenge presents an opportunity to effect positive change. Colin has extensive experience in all aspects of litigation, and has tried numerous cases to successful conclusions across New York State on behalf of his clients. His practice focuses on defending nursing homes and medical providers against negligence and malpractice claims, defending municipalities against personal injury and property damage claims, and defending individuals and businesses in labor and employment claims. Download a printer-friendly version of Colin's bio: PRACTICE AREAS Health Care ​ Labor & Employment ​ Litigation EDUCATION Syracuse University College of Law, J.D. Hamilton College, B.A. COURT ADMISSIONS New York State US District Courts - Western District of NY ​ US Bankruptcy Court - Western District of NY US Court of Appeals for the Second Circuit PROFESSIONAL & COMMUNITY INVOLVEMENT Colin served on the Board of Directors of the Chippewa Alliance, which focuses on attracting new business and investments, spurring economic development, and promoting the City of Buffalo. He is also a member of the Syracuse University Alumni Club of Western New York, and the Erie County Bar Association. Colin is a contributing author for The Daily Record, and regularly presents at seminars. AWARDS & RECOGNITIONS Colin was named to the 2021-2022 editions of Best Lawyers in America® for his work in Litigation - Insurance and recently added to the 2022 edition for Legal Malpractice Law-Defendants. Colin was also included in the 2013-2017 group of Upstate New York Super Lawyer “Rising Stars”. This group represents the top 2.5% of lawyers who are under 40 years old or who have been practicing for 10 years or less. He was recently selected a 2021 Upstate New York Super Lawyer. The group represents the top 5% of attorneys in Upstate New York who have attained a high degree of peer recognition and professional achievement. COLIN'S ARTICLES & POSTS Are Vaccine Mandates Legal? Protecting Our Seniors at What Cost? Provider Immunity Under EDTPA: A Closer Look View All of Colin's Articles & Posts

  • Testimonials | Underberg & Kessler

    Acerca de Testimonials Client Reviews & Testimonials See what some of our past clients have said about Leah, Jenn, and our U&K team. FAMILY LAW Divorce Child Custody Child Support Modification Qualified Domestic Relations Orders Please contact Leah or Jennifer to set up a one-hour consultation to discuss your case. An analysis of the assets and debts will be performed and you will be advised on how the law would apply to the facts of your case. Knowledge is very important so that you, as the client, know your rights. Let’s Work Together Click HERE to get in touch. Our Family Law Attorneys Leah Tarantino Cintineo Leah focuses her practice on divorce and family law. Serving clients in multiple local counties, her insightful interpersonal skills and ability to strongly negotiate has made a positive impact on the lives of many families. Leah practices in both Supreme and Family Courts throughout the Seventh Judicial District. Learn more about Leah ​ Jennifer A. Shoemaker Jennifer represents clients across the spectrum of family law issues, including divorce, custody, support actions, the negotiation of separation agreements and prenuptial agreements. Jennifer is certified as a collaborative divorce attorney and is a member of the Collaborative Law Association of the Rochester Area (C.L.A.R.A.). Learn more about Jennifer ​ Our Latest Blogs Underberg & Kessler Cintineo & Shoemaker Recognized as a Power 20 - Family Law Partners, Leah Tarantino Cintineo & Jennifer Shoemaker, were chosen to be on The Daily Record’s Power 20 Family Law list for 2022! Leah Tarantino Cintineo Considerations for Divorce & Family Law Cases During the COVID-19 Pandemic in New York We are currently facing challenges that we have never faced before due to the Coronavirus and COVID-19 pandemic. Our society is under a t... Leah Tarantino Cintineo Kramer v. Kramer: An Analysis During Oscar season, I always look forward to watching Turner Classic Movies’ “Thirty Days of Oscar”, showcasing Academy Award winning fi... Back to Top

  • Commercial Lending Lawyers, Attorneys | Rochester & Western NY

    COMMERCIAL LENDING Navigation in Today's Financial Waters. At Underberg & Kessler, we have a practical knowledge of financial institutions and how they work. We help financial clients minimize loss and risk. For these reasons, a myriad of banks and financial institutions select Underberg & Kessler as their law firm of choice. Our financial clients range from small independent banks to larger regional financial institutions. Our attorneys assist them in everything from day-to-day legal representation to large, complicated transactions, all with the goal of staying the course of fiscal stability. They come to us for assistance in areas such as: Construction and permanent mortgage lending Commercial and industrial lending Tax credit transactions Bond financing Loan syndications and participations Environmental issues Creditors’ rights Regulatory compliance Litigation Trust and investments and more For more information, contact Kate Karl, chair of the practice group. Contact Kate RELEVANT EXPERIENCE Closing of loan transactions of many types, both secured and unsecured, ranging from complex syndicated loans to small term loans and mortgages, including most advantageous structuring of loans with the involvement of industrial development agencies and certified development corporations, SBA guaranties, SBA 504 transactions, NYSERDA, Linked Deposit and other incentive programs. Representation of numerous banks and mortgage bankers in high-volume residential mortgage loans while meeting and exceeding the reporting and timing requirements of the lenders. Advice to lenders concerning federal and state regulatory compliance. Representation of banks and trustees, as fiduciaries or co-fiduciaries, in complicated trust administrative matters, including defense of clients in Surrogate Court proceedings and appeals. Advice to banking clients relating to many legal disciplines including environmental, litigation, securities, tax, and real estate matters. Representation of banks in collection matters ranging from large, complicated bankruptcy proceedings, litigation actions, to routine foreclosures. OUR COMMERCIAL LENDING ATTORNEYS: Justin P. Alexander Rochester, NY Timothy P. Johnson Buffalo, NY Serena M. Compitello Rochester, NY Katherine H. Karl Rochester, NY James A. Coniglio Geneseo, NY Edmund J. Russell III Rochester, NY Patrick L. Cusato Rochester, NY Andrew M. Washburn Rochester, NY

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