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    Blog Posts (312)
    • Hindsight is 2020: Workplace Litigation During the Pandemic

      Employers were hit hard in 2020, not only with government-mandated closings and the growing risk of infection, but also with the heightened potential for employment law violations. New state and federal protections were implemented for workers impacted by COVID-19, with little initial guidance. Existing protections, such as notification requirements for mass layoffs and closings, disability discrimination and accommodations and family and medical leave were placed in a new light. Even businesses with robust compliance systems in place were tested against the onslaught of new legal obligations created in 2020. New York was one of the states with the highest number of pandemic-related employment law filings in 2020. Smaller businesses, with under 500 employees, accounted for over half of the COVID-related employment lawsuits. Industries with in-person interactions, such as healthcare, manufacturing, construction and education saw the largest number of employment disputes. Pandemic-related claims in New York primarily consisted of workplace safety and whistleblower issues, claims of retaliation for pandemic-related leave, allegations of disability discrimination and wage and hour disputes over sick pay. One of the largest concerns for many employers was creating a safe workplace during a pandemic. The Occupational Safety and Health Administration (OSHA) promulgated safety and health standards and regulations which focus “on the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment (PPE).” The safety requirements varied by industry and risk-level and suggestions included ventilation, air filters, COVID-19 related training, minimizing contact, workplace flexibility and providing resources to encourage personal hygiene. Mandatory vaccinations are not currently an OSHA requirement, although according administrative guidelines they can be mandated by employers with a few exceptions for medical and religious accommodations. The court in Palmer et al. v. Amazon.com Inc. et al., deferred to OSHA’s expertise and held that it was the role of OSHA, not the courts, to determine whether an employer adequately protected the safety of its workers from COVID-19. The decision noted that “courts are not expert in public health or workplace safety matters, and lack the training, expertise, and resources to oversee compliance with evolving industry guidance” and that judicial interference risked potentially costly “inconsistent rulings . . . in a time of economic crisis.” The Amazon workers are in the process of appealing the order. Various health care workers and police officers have also filed complaints about workplace safety. Recently, the Monroe’s County Sheriff’s Office was sued after asking a candidate for promotion to remove his mask during an in-person testing exercise. The Palmer case also showcased some novel pandemic-related wage and hour issues. In response to COVID-19, federal and state governments enacted the Families First Coronavirus Response Act (FFCRA) and related New York State COVID Emergency Paid Sick Leave (NEPSL), which provided paid sick leave and enhanced family and medical leave. The court also held that COVID-19 paid sick leave was not considered “wages” under the New York Labor Law, and thus not subject to New York’s timely pay requirements. Although FFCRA expired at the end of 2020, employers who wish to receive tax credits for their employees’ family and medical leave must follow the requirements through March 2021. Additionally, NEPSL protections currently have no expiration dates. Therefore, both laws may continue to be a source of COVID-19 related litigation. Numerous cases are still pending in court concerning disability discrimination and whistleblower retaliation claims. For instance, in September 2020, a worker for Chefs’ Warehouse, Inc. filed a lawsuit claiming that his employer interfered with his Family and Medical Leave Act rights and discriminated against his COVID-19 related disability. In the complaint, the employee alleges that he was terminated after he informed his employer that he tested positive for COVID-19 and his doctor recommended an additional week of quarantine. In Taidgh Barron v. New York Post and News Corp., a New York Post staff photographer filed a retaliation claim under New York’s whistleblower act. He alleged he was fired five months after he requested PPE for himself and other New York Post staff. A spokesperson for the New York Post stated that the decision to terminate Barron’s employment was a financial one and the allegations of an unsafe workplace environment were false because all staff who requested PPE were given it as soon as possible. Similarly, an auto sales manager alleged that he was retaliated against under New York’s whistleblower law because he emailed them to inform them that they violated the government-mandated stay-at-home order and was subsequently not rehired after a company-wide furlough. In response to many of these claims, the employers cite economic issues and financial struggles as the reason for termination, unrelated to any alleged complaint or leave by the employee. Another potential source of litigation related to COVID-19 is the requirements under New York State’s Worker Adjustment and Retraining Notification (WARN) act and the corresponding federal statute. Under New York State’s WARN Act, employees are entitled to 90-days’ notice for plant closing or massive layoffs. New York did not suspend the requirement because “the WARN Act already recognizes that businesses cannot predict sudden and unexpected circumstances beyond an employer’s control, such as government-mandated closures, the loss of your workforce due to school closings, or other specific circumstances due to the coronavirus pandemic.” New York provided only a narrow exception for second round layoffs and recently amended the act to require additional notifications to local school districts and emergency services. At least one case involving an employment contract and the WARN Act was filed in state court in 2020, with others potentially to follow if layoffs continue. Despite the workplace complications arising out of the pandemic, available data shows a general decrease in the amount of employment law court and administrative filings compared to past years. With current unemployment rates, the filing of general employment lawsuits may remain fairly low compared to previous years. On the other hand—especially as a new strain of COVID-19 sweeps through New York—it is likely that COVID-19-related employment litigation will be on the rise. 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 or at (585) 258-2814.

    • Underberg & Kessler Elects New Partners

      Effective January 1, 2021, Justin P. Alexander and Joshua B. Beisker were elected to the Firm’s partnership. Justin is a member of the Firm’s Real Estate and Banking & Finance Practice Groups. His practice focuses on commercial and residential real estate matters, representing both lending institutions and borrowers in a myriad of transactions. Clients value Justin as an excellent listener and trusted advisor who can expertly guide them toward achieving their business and legal goals. He routinely presents to real estate agents in an effort to provide information they can use to add value to their clients. He is active in the community and serves on the Board of Directors for the Center for Disability Rights / Regional Center for Independent Living and is a member of the Monroe County Bar Association. Justin was recently named to the 2020 class of Upstate New York Super Lawyer “Rising Stars.” Joshua is the Chair of the Firm’s Estates & Trust Practice Group and is a member of the Firm’s Corporate & Business and Tax Law practice groups. His practice focuses on assisting clients in making important decisions which impact their businesses and families. Josh is a counselor and a protector of his clients’ assets, advises clients on estate and income tax planning and fiduciary administration matters, and provides estate and asset protection planning to his clients, including the preparation of Wills and Trusts, Durable Powers of Attorney, Health Care Proxies, and a variety of other estate and asset protection planning documents. Having earned an LLM in Taxation, he provides counsel to businesses on achieving tax efficiencies and succession planning and general corporate governance matters. Josh is also a frequent lecturer at organizations such as the National Business Institute, universities and other educational institutions, and financial planning organizations. He is a member of the Board of Directors of Corn Hill Navigation, a member of the Estate Planning Council of Rochester and of the Monroe County and New York State Bar Associations. He was named a 2017 New York Super Lawyer Rising Star and a 2010 Pennsylvania Super Lawyer Rising Star. Additionally, effective January 1, 2021, Alina Nadir, Jillian K. Farrar, and Jessie Gregorio were promoted to Senior Counsel. To learn more about our attorneys and our Firm click here, or phone us at 585.258.2800.

    • Endowments: Maximize Control and Charitable Impact

      In addition to Sarah Bothma, this post was authored with input from Edmund Russell. An endowment provides great flexibility for charitable giving, allowing the founding donor to control the class of recipients eligible for grants and which charitable purposes to support. While most people associate endowments with educational and cultural organizations, establish free-standing and unaffiliated endowments can also be created. Endowments are ideal mechanisms for charitable giving by individuals, families or businesses desiring to have a lasting charitable impact. Identifying the donor’s charitable purpose is the first step to forming an endowment. The donor’s charitable purpose largely determines how to define and structure the endowment. A donor may wish to establish an agency fund, in conjunction with a particular organization, for the purpose of providing financial support to such organization. For example, a fund for a local library. If the donor wants to provide support to more than one charitable organization, then a designated funds endowment should be established. Such an endowment allows the donor to specify specific nonprofit organizations for gift giving. For donors who desire a broader charitable giving approach, a field of interest fund endowment makes grants to organizations operating in the field of interest identified by the donor, such as the arts or education. An endowment is not a legal entity, but instead refers to an arrangement whereby assets are invested, managed, and disbursed for the purpose specified by the donor. Endowments are usually organized as a not-for-profit corporation or a trust, which obtain tax-exempt status as a private foundation or public charity. The benefit of obtaining such tax-exempt status is that the fund can grow in a tax free, or tax-advantageous, manner allowing it to make a long-lasting impact. Such tax-exempt status also permits donors to take current tax deductions for assets used to create the fund, even if it does not start making charitable gifts until a later time. Public charity status requires the organization receive a majority of its funding from the public; however, the deductions available to individuals and corporations from donations to public charities are subject to a higher limit than deductions to private foundations. Even though public charities have a higher deductibility that private foundations, most endowments which are not affiliated with an existing public charity are formed as private foundations. The benefit of a private foundation is control. Related parties may control the endowment, and private foundations can be funded by fewer individuals, or even one person. It is common for donors to establish an endowment with a modest investment initially and add additional assets over time as part of retirement and estate plans. Funding an endowment as part of a retirement or estate plan can also be tax-advantageous. Donors who do not need their full IRA required minimum distribution (“RMD”) during retirement or who will be bumped into a higher federal income tax bracket by taking their full RMD can use IRA charitable rollover, to the extent the endowment is not a donor advised fund. The endowment can also be designated a beneficiary of the donor’s estate or their retirement accounts, which can also reduce taxes. Rochester is currently ripe for creating an endowment. Take Mackenzie Scott’s recent giving of $20 million to the United Way of Greater Rochester, which was part of the $4.2 billion she gave to charities and endowments around the country. But, as discussed, creating an endowment is not reserved for billionaires, such as Mackenzie Scott. If you are interested in creating an endowment or if you have any other Corporate & Business Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Sarah Bothma or Edmund Russell, the authors of this piece, here or by phone at (585) 258-2818 for Sarah or (585) 258-2834 for Edmund.

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    • Estate Lawyers, Attorneys | Rochester & Western NY | Wills & Trusts

      ESTATES & TRUSTS LAW Advice. For a Lifetime. Keeping your business safe for the future. Preserving your legacy through succession. Protecting your family for generations. Estate & Trusts planning creates enduring legacies that last lifetimes. Whether through drafting wills, succession planning or estate settlements, Underberg & Kessler has been providing a full range of estate and trust services since we were founded more than 80 years ago. We will assist you with a sensitivity and thoroughness that ensures that your estate planning goals and objectives are achieved. Our Estates & Trusts Group has experience in private practice, in Corporate Trust Departments and the Estate and Gift Tax Bureau of the Internal Revenue Service. We represent corporate trust departments, individuals, families, businesses and charitable organizations. We assist in the administration and settlement of estates, trusts and guardianships. And we advise clients on charitable giving, Medicaid planning, business continuation and life insurance. Our Estates & Trusts services include: Drafting of wills and trusts Administration of estates and trusts General estate planning Tax planning Business succession planning Retirement planning Charitable giving Medicaid planning Elder care planning Wealth Preservation Planning For more information about trusts & estates law, contact Josh Beisker, chair of the practice group. Contact Josh RELEVANT EXPERIENCE Underberg & Kessler’s Estates & Trusts Group has considerable experience in counseling clients and implementing a broad range of estate planning vehicles, including: ​ Wills containing non-tax planning testamentary trusts Wills containing tax planning testamentary trusts Powers of attorney, health care proxies and living wills Revocable living trusts, both with and without estate tax planning provisions Irrevocable life insurance trusts Qualified personal residence trusts Charitable remainder and lead trusts Grantor retained annuity or unitrusts Defective grantor trusts Dynasty trusts Family limited partnerships and limited liability companies ​ In addition we provide assistance and planning guidance with respect to: ​ Medicaid planning Elder care planning Gifting programs Educational trust planning OUR ESTATES & TRUSTS ATTORNEYS: Joshua B. Beisker Corporate & Business, Estates & Trusts, Tax Law Rochester, NY View Our Estates & Trusts Law Articles & Posts

    • Banking & Finance Lawyers, Attorneys | Rochester & Western NY

      BANKING LAW Navigation in Today's Financial Waters. In the old days, navigators used a sextant to sight the horizon. But what do you do when the horizon shifts on a daily basis? That's the dilemma financial and banking institutions face in today's market. Mergers. Regulatory compliance. Delinquent borrowers. Waffling on Wall Street. The global economy. The list is endless. So how do banks and financial entities keep it all straight? They hire Underberg & Kessler. We are immersed in the latest financial law, and have a practical knowledge of financial institutions and how they work. We help financial clients chart a position to stave off loss and risk even as sudden storms arise. For these reasons, a number of banks and financial institutions have selected Underberg & Kessler as their law firm. Our financial clients range from small independent banks to multibillion-dollar bank holding companies. We 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: Capital structure Regulatory compliance Holding company formation and operation Investments Environmental issues Capital financing Commercial and mortgage lending Litigation Trust and investment services, and more For more information about banking law, contact Kate Karl, chair of the practice group. Contact Kate RELEVANT EXPERIENCE Formation of bank holding companies, including issues regarding capital structure, takeover defenses and financing, as well as preparation of bank holding company applications, proxy material and other securities-related material. All phases of bank mergers and acquisitions, including negotiation, document preparation and filing. 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 industrial development agencies and certified development corporations’ involvement, 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. 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. Consultation and negotiation with federal and New York State bank examiners on a variety of regulatory issues. Ongoing legal advice to an investment advisory firm, including compliance with the Investment Advisors Act of 1940 with respect to disclosure, SEC filings and compliance with blue sky requirements of several states. Establishment of collective investment funds (such as common trust funds and pooled funds), advice regarding fund mergers and divisions, and ongoing legal compliance. Advice to banks and bank holding companies regarding permissible securities activities of banks, such as the establishment of proprietary mutual funds and their compliance with applicable regulations. Advice to banking clients relating to many legal disciplines other than banking law, including environmental, litigation, securities, tax and real estate matters. Representation of banks in collection matters ranging from large complicated bankruptcy proceedings to routine foreclosures. OUR BANKING ATTORNEYS: Justin P. Alexander Banking, Real Estate Rochester, NY James A. Coniglio Banking, Corporate & Business, Environmental, Municipal Geneseo, NY Edmund J. Russell III Banking, Corporate & Business, Creditors' Rights, Intellectual Property, Municipal Rochester, NY Michael J. Beyma Banking, Corporate & Business, Creditors' Rights Rochester, NY Patrick L. Cusato Banking, Real Estate Rochester, NY Sarah F. Bothma Banking, Corporate & Business, Tax Law Rochester, NY Timothy P. Johnson Banking, Creditors' Rights Buffalo, NY Serena M. Compitello Banking, Corporate & Business, Creditors' Rights, Municipal Rochester, NY Katherine H. Karl Banking, Real Estate Rochester, NY

    • Intellectual Property Lawyers | Rochester NY | Underberg & Kessler

      INTELLECTUAL PROPERTY LAW Bold New Solutions For A Brave New World What do you do when you have a legal problem in an area of law so evolving, it is almost without precedent? You call the attorneys in our Intellectual Property Group. The field is still in its infancy, but the legal challenges surrounding computer and Internet usage, intellectual property and information technology, privacy, patents and illegal downloading are here to stay. Resolving legal challenges in this rapidly evolving technological landscape requires multidisciplinary experience. Our intellectual property lawyers are trained in traditional legal fields such as corporate law, intellectual property and litigation. We then apply this experience to the new legal disciplines of e-commerce, information technology and the life sciences, including biotechnology and bioinformatics. Besides resolving legal issues, we help businesses with the strategic development, cultivation and policing of intellectual property, so that they can bolster the value of their assets and achieve real dollar savings. ​Our Intellectual Property Practice Group's areas of experience include: Strategic alliance structures Venture capital financing Trademark law Copyright protection Domain name disputes Internet rights Litigation Alternative dispute resolution Trade secrets, non-competition and non-disclosure agreements Licensing agreements Employment issues Intellectual property transfers Internet and e-commerce issues For more information about intellectual property law, contact Steve Gersz, chair of the practice group. Contact Steve RELEVANT EXPERIENCE STRATEGIC ALLIANCES We negotiate, structure and draft alliance structures, from simple to complex, on behalf of clients, some of which include a strategic investment component. Using the tool of a well-structured strategic alliance, our clients are able to accelerate their marketing, supply, and research and development efforts. ​ VENTURE CAPITAL FINANCING We represent angels, institutional venture capitalists, and both start-up and later-stage companies in structuring and documenting investments. This representation requires that we draw on our broad range of legal experience and knowledge, including corporate structure and finance, tax, ERISA and securities. We also utilize our contacts with local and regional venture capital firms to assist our clients in finding capital. ​ TRADEMARK Whether it be in traditional or new media, from the earliest stages of development to branding, litigation and licensing, our attorneys are well-versed in the strategies and tactics necessary to create and protect this valuable asset. Trademark law is an ever-expanding and changing field with new pitfalls and opportunities opening up every day, and our attorneys have the experience to assist you in creating, maintaining and policing your marks. ​ COPYRIGHT Copyright protection isn’t just for music and books anymore. With today’s technology, copyright protection extends to software code, Internet content and database formation. Our attorneys have dealt with a variety of technologies and creative works that manifest copyright issues. PATENTS As new fields of science are formed by combining traditional hard sciences, such as biology and chemistry with computer science, new opportunities are also created. Our attorneys are well-equipped to counsel you on how best to secure your rights in these new arenas, as well as how to maximize your profits when it comes to licensing or assigning these rights. ​ DOMAIN NAME DISPUTES As the Internet frenzy calms and new regulations and practices develop in what was once uncharted waters, our attorneys are on the forefront of making sense of this new medium. In line with our trademark expertise, our attorneys are well-equipped to preserve our clients’ rights on the Internet. ​ LITIGATION Whether it is any of the intellectual property disciplines, technology-based agreements or related contracts, our attorneys have litigated these issues on numerous occasions, and can help you either defend or effectively police your rights. Our attorneys are experienced in handling matters before a variety of courts and venues, including mediations and other alternative dispute resolution proceedings on such topics as patents, trademarks, trade secrets, domain name disputes, service agreements, licensing agreements and employment issues particular to technologically enabled companies. ​ LICENSING For many companies today, the licensing of intellectual property is a key component of business development and the growth of revenue. Our attorneys are experienced in drafting and negotiating licensing arrangements that effectively capture our clients' business needs. ​ LEGAL EASE As part of our partnership, we keep up on the latest legal issues and their impact on your industry. The articles and thought leadership here make it easy for you to do the same. OUR INTELLECTUAL PROPERTY ATTORNEYS: Steven R. Gersz Corporate & Business, Health Care, Intellectual Property, Tax Law Rochester, NY Jessie Gregorio Health Care, Intellectual Property, Litigation Rochester, NY Edmund J. Russell III Banking, Corporate & Business, Creditors' Rights, Intellectual Property, Municipal Rochester, NY Helen A. Zamboni Corporate & Business, Health Care, Intellectual Property, Real Estate Rochester, NY

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