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Underberg & Kessler | Rochester, NY - Buffalo, NY Law Firm | Attorneys

PRACTICE AREAS The Partner You Can Count On Real Estate Litigation Tax Law Municipal Intellectual Property Labor & Employment Family Law Health Care Environmental Estates & Trusts Corporate & Business Banking Creditors' Rights Construction UPCOMING EVENTS 1/2 our most important partner is you ® NYS Required Anti Sexual Harassment & Discrimination Avoidance Training Your Preferred Date and Time At Your Business Your Preferred Date and Time At Your Business Did you know New York State requires all employees to be trained in an interactive manner on avoidance of sexual harassment and discrimination? This requirement went into effect in 2019 and the training must be conducted annually. Our attorneys can perform the training at your facilities. Share RSVP JOIN OUR MAILING LIST Join Thanks for joining! VIEW RECENT ARTICLES AND POSTS View All Articles & Posts

Out of State LLC Shareholders Can Be Personally Liable for New York Unpaid Wages

Effective February 10, 2020, the ten members with the largest percentage ownership interest of an out of state LLC can be held personally liable for violations of New York’s wage and hour laws. Previously, only domestic LLC shareholders were subject to individual liability for unpaid wages. The ten members with the largest percentage ownership interest, are calculated based on the percentage of ownership of each member during the time period the violations occurred. Employees must first obtain a judgment against the LLC that is unsatisfied and must provide the members written notice of the intention to hold them personally liable. Employers should review their pay practices to ensure compliance with New York State law when doing business in New York. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler Adds Hinckley

Morgan Hinckley has joined Underberg & Kessler LLP as a law clerk in our Rochester, New York office. She's currently assisting the real estate practice group, helping with commercial and residential transactions.  She earned her B.S. from Clarkson University in 2016, and her J.D. from Syracuse University College of Law in 2019. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Ask An Attorney: Understanding Employer Contracts

I am graduating from my residency program and received an employment contract from my future employer. What should I be aware of while reviewing the proposed agreement? Unfortunately, how to review and negotiate a physician employment contract is not usually covered in the hustle and bustle of residency or fellowship. Yet, the physician employment contract defines the parameters of your relationship with your employer during your employment, and even after it ends. Making sure you understand the terms of your employment agreement prior to signing on the dotted line is crucial for any new (or experienced) physician. Compensation is usually the first question on a new attending’s mind. Research what other physicians in your specialty and geographic location earn and use that knowledge to ensure that your new employer is offering market rate. Additionally, negotiating productivity incentives may be possible because your employer’s profits will rise as your productivity increases. Make sure to review the practice’s fringe benefits such as health insurance, disability insurance, and retirement savings options, as these benefits contribute to your overall compensation. Quality of life issues are another important component of any physician employment contract. Carefully review the call schedule. The agreement should state whether call will be taken evenly by the physicians in the practice and how call will be handled during absences. If there are multiple locations for the practice, expectations about covering farflung offices should be addressed, as well as travel expenses. Prior to entering into a contract, it is always beneficial to ask about how the practice operates, its billing procedures and employee retention rates. The physician employment contract should also specifically set forth the duties of the physician, including clinical responsibilities, administrative tasks and teaching responsibilities. The agreement should delineate the responsibilities of the employer, such as keeping malpractice insurance, maintaining appropriate support staff and ensuring standards for medical care. Non-competition and non-solicitation terms are now common in physician employment agreements. Depending on your practice, separating from your employer may mean having to move to continue working. In New York, these restrictive covenants are enforceable if they are reasonable in time and distance. For example, in a town with two hospitals, a hospitalist who leaves her position will likely be unable to work for the competing health system for two to three years. This means relocating or enduring a long commute. Restrictive covenants are the most litigated terms of physician employment contracts. Ensuring that you understand any restrictive provisions of your contract and negotiating a reasonable time and distance are essential to avoiding costly litigation should you separate from this practice and want to continue working in this community. Finally, understanding how you or your employer may terminate the physician employment agreement is also critically important. Physician contracts usually recite a definite term of employment; but give either party the ability to terminate the agreement on written notice (usually 60 – 90 days). The best protection for job security— and the hardest to achieve—is a fixed term contract allowing termination only “for cause”, which is clearly defined. Additionally, the employment agreement should give the physician an opportunity to cure any alleged shortcomings before termination upon prior written notice. The transition from a resident or fellow to an attending is an exciting and gratifying time. Taking the opportunity to understand and negotiate your employment agreement should not be missed. If you have questions concerning the content of your employment contract, you should contact an attorney experienced in negotiating and understanding these special agreements. Download the Reprint from the May/June 2018 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Fair Debt Collection Practices Act: Could Mean Big Changes for Debt Collectors & Consumers

Last week the Consumer Financial Protection Bureau (CFPB) issued a Notice of Proposed Rulemaking to implement the Fair Debt Collection Practices Act (FDCPA). These proposed changes could have a dramatic effect on attorneys representing consumers and debt collectors. The FDCPA governs debt collectors’ conduct and communication with consumers. Attorneys attempting to collect a debt incurred primarily for personal, family or household purposes are considered debt collectors under the FDCPA. Debt incurred for corporate, business or agricultural purposes is not entitled to the protections of the FDCPA. The FDCPA was passed in 1977 to provide protection to consumers from abusive, deceptive and unfair collection practices. However, Congress did not delegate the authority to issue substantive rules to interpret the FDCPA until the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The CFPB developed the proposed rules to modernize the legal regime and clarify how debt collectors may lawfully communicate with debtors using technologies — such as voicemail, email and text messaging — that have evolved since the 1970s. The proposed rules are designed to provide consumers with well-defined options to dispute debts and debt collectors with clear rules regarding contact with consumers. Below is a list of several changes proposed by the CFPB: Decedents and their representatives are consumers: The proposed rules clarify that the definition of a consumer includes deceased consumers and their executors, administrators and personal representatives. The rules also seek to clarify how a collector may communicate with the personal representative of a deceased consumer. Clear limits on call attempts and conversations: The CFPB’s proposal limits the number of attempts to contact consumers by telephone to seven calls per week. Once a debt collector reaches a consumer, the debt collector must wait at least one week before attempting to reach the consumer again. Additional consumer protections in verification notices: In addition to the disclosures already required, debt collectors will be required to provide an itemization of the debt and plain-language information about how to dispute the debt. Under the proposed rules, demand letters must include a “tear-off ” that consumers can return to the debt collector in response to the collection attempt. Updated communications with consumers: The proposed rules attempt to clarify how debt collectors may use technologies developed since the FDCPA’s enactment. For example, it seeks to clarify a collector’s ability to leave a limited content message on a consumer’s voicemail with a third party who answers the telephone or by text message without risking a FDCPA violation. The proposed rules also clarify the requirements for communicating with consumers via email. This includes complying with the Electronic Signatures in Global and National Commerce Act (E-SIGN Act) and providing consumers with the ability to opt-out or unsubscribe from future electronic communications. Debt collectors are also prohibited from contacting a consumer using an email address provided by the consumer’s employer or through social media, except through a private messaging function. Debt collectors must refrain from communicating with a consumer in a way the consumer has requested not to be contacted. For example, if a consumer asks a debt collector not to contact him at a specific address or telephone number, the debt collector must refrain from using that address or telephone number. No threats on time-barred debt: The proposed rules prohibit debt collectors from suing, or threatening to sue, on debt that is past the statute of limitations. Limitations of reporting debt to a consumer reporting agency: The proposed rules prohibit debt collectors from providing debt information to a consumer reporting agency prior to communicating with the consumer about the debt. Here, communication includes sending a validation notice to the consumer, but not leaving the consumer a limited-content message. No transfer or sale of debt discharged in bankruptcy: Under the proposed rules, debt collectors are prohibited from selling, transferring, or placing debts for collection if the debt collector knows, or should know, that the debt has been discharged in bankruptcy, or is the subject of an identity theft report. In addition to the clarifications set forth for both consumers and debt collectors, in the proposed rules, the CFPB has published a proposed model form Validation Notice, Model Form B-3. Use of the Model Form complies with the disclosure requirements set forth in the FDCPA and proposed rules. The Model Form can be found at: https://files.consumerfinance.gov/f/documents/cfpb_ debt-collection-validation- notice.pdf. The proposed rules can be found at: https://www.consumerfinance.gov/ documents/7622/cfpb_debt-collection-NPRM.pdf. Practitioners representing consumers and creditors should review and provide comment to the CFPB on the proposed rules, as their implementation will have a lasting impact on future practice. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

What the SECURE Act Means for Savers & Retirees

SECURE ACT ENACTED On December 20, 2019, President Trump signed into law the Setting Every Up Community for Retirement Enhancement (SECURE) Act, which was incorporated into the Further Consolidated Appropriations Act. The SECURE Act makes significant changes to the tax rules applicable to qualified retirement plans and IRAs. Some of the key changes include: Deferring of the commencement of required minimum distributions until age seventy-two (72) Requiring payouts after the death of an account holder to be completed within ten (10) years of death, with some exceptions INCREASING THE REQUIRED MINIMUM DISTRIBUTION AGE — AND THE CONTRIBUTION AGE Previously, qualified account holders such as those with a 401(k) or IRA had to withdraw required minimum distributions (RMD) in the year they turned age 70.5. The SECURE Act increases that age to 72.  Further, the bill eliminates the maximum age for traditional IRA contributions, which was previously capped at 70.5 years old. Note Americans who turned 70.5 years old in 2019 will still need to withdraw their required minimum distributions this year, and failure to do so results in a 50% penalty of their RMD. People who are expected to turn 70.5 years old in 2020 will not be required to withdraw RMDs until they are 72. REPEAL OF STRETCH IRAS RMDs have changed for non-spousal account inheritors.  Under the old law, beneficiaries who did not inherit their accounts from a spouse were (in some cases) allowed to withdraw RMDs for the span of their lives.  The amount of the distribution is calculated based on various factors, including life expectancy and beneficiary age.  The SECURE Act now requires beneficiaries to withdraw all assets of an inherited account within ten (10) years. There are no RMDs within those ten (10) years, but the entire balance must be distributed after the tenth (10th) year. Note There are five classes of “eligible designated beneficiaries” who are exempt from the 10-year post-death payout rule and can still stretch RMDs over life expectancy. These include: Surviving Spouses Minor Children; however, it should be noted that an individual shall cease to be a minor child on the date the individual reaches majority, and any remainder of the portion of the individual’s interest shall be distributed within 10 years after such date. Disabled Individuals The Chronically Ill Beneficiaries not more than ten (10) years younger than the IRA owner. With the passage of the SECURE Act, it would be prudent for individuals to contact their estate planning counsel for the purpose of reviewing and possibly updating their estate planning strategy as it pertains to the dispositions and distributions of their retirement and IRA accounts and plans. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Jessie Gregorio - Health Care Attorney Rochester | Underberg & Kessler

Jessie Gregorio Associate Rochester, NY (585) 258-2851 (585) 258-2821 jgregorio@underbergkessler.com https://www.linkedin.com/mynetwork/invite-sent/jessie-gregorio/?isSendInvite=true A seasoned world traveler, Jessie believes that the more she experiences different cultures, the more she discovers how similar we all are. This philosophy serves her well as an attorney, where she works to find common ground among opposing sides. In cases that go to court, Jessie is a dedicated advocate for clients facing litigation. ​ With a background in civil litigation and insurance defense, Jessie has found her niche in health care law. She is a passionate and tenacious defender of medical professionals facing issues such as malpractice and regulatory compliance. She has also represented clients in financial disputes with Medicare, Medicaid and HMO organizations. ​ At a time when the field of health care law is more complicated than ever, Jessie enjoys working on finding solutions to complex issues. But her greatest reward is being a positive and reassuring presence to clients who are often facing one of the most difficult times of their life. PRACTICE AREAS Health Care ​ Litigation EDUCATION University at Buffalo Law School, J.D. Canisius College, B.A. COURT ADMISSIONS New York State ​ US District Courts - Western District of NY ​ US District Courts – Northern District of NY PROFESSIONAL AND COMMUNITY INVOLVEMENT Jessie is very active in our community. She is a member of the Board of Directors of Veteran's Outreach Center, a Fundraising Committee member for CDS Monarch, and a volunteer for the Monroe County Special Olympics. She is a member of the Greater Rochester Association for Women Attorneys, where she sits on both the Judicial Evaluation and Health Committees. Jessie is also a member of Phi Alpha Delta, a professional law fraternity, and a member of the Monroe County, Ontario County and New York State Bar Associations. AWARDS AND RECOGNITIONS Jessie was named a 2016 recipient of the Rochester Business Journal's Forty Under 40 award, which honors professionals younger than 40 who demonstrate leadership in the workplace and in the community. JESSIE'S ARTICLES & POSTS

Impact of the Housing Stability and Tenant Protection Act of 2019 on Residential Landlords in WNY

On June 14, 2019, Governor Andrew Cuomo signed into law the “Housing Stability and Tenant Protection Act of 2019” (the “Tenant Protection Act”). The Tenant Protection Act, which contains a series of sweeping tenant favored regulations and protections, represents a staggering loss to residential landlords in New York State. While prior laws addressing rent regulation have been adopted in New York City and its surrounding counties, the Tenant Protection Act applies to every county in New York State. The Tenant Protection Act will increase the operating and organizational expenses of residential landlords. Landlords are now prohibited from collecting more than one month’s rent at lease commencement (GOL §7-108(1-a)(a)) or from charging an application fee (with the exception that landlords may charge up to $20.00 for a background and credit check) (RPL §238-a). Additionally, landlords are now obligated to immediately provide tenants with a written receipt of payment for any rent directly received in any form other than the personal check of the tenant, and to maintain such records for at least three years (RPL §265-e). The Tenant Protection Act will also drastically lengthen the process of eviction. Landlords must now send delinquent tenants a written notice, by certified mail, if the tenant’s rent has not been received within five days of the due date specified in the lease (RPL §§235-e(a) and (b)). The failure of any landlord to comply with this notice requirement will constitute an affirmative defense by the tenant in any subsequent eviction proceeding based on the non-payment of rent (RPL §235-e(d)). Additionally, the required written statutory demand providing delinquent tenants with an opportunity to cure their default has been increased from a three day cure period to a fourteen day cure period (RPAPL §711(2)). If the tenant fails to cure the arrearage and the landlord commences an eviction proceeding, the trial will not be scheduled until at least ten days after the petition has been served on the tenant (RPRPL §732(1)). The tenant now has the right to request, and the Court shall be obligated to grant, an adjournment of the trial for at least fourteen days (RPAPL §745). If the Court grants the landlord’s request for a warrant of eviction, the officer executing upon the warrant must provide the tenant with at least fourteen days’ prior written notice (an increase from the prior three day period), and the warrant may only be served on a business day (RPAPL §749). Upon application of the tenant, the Court, upon consideration of special circumstances, may grant a stay of the issuance of the warrant of eviction for a period of up to one year (an increase from the prior six month period) (RPAPL §753). Prudent investors operating in the New York real estate market should critically examine the capitalization rates on all prospective acquisitions of investment properties containing residential dwellings and verify that the economics account for the new increases in landlord operating costs anticipated to result from The Tenant Protection Act. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. #nyslaw #realestatelaw

Family Lawyers, Attorneys | Rochester & Western NY | Divorce, Custody

FAMILY LAW Advocates For The Family. Disputes among family members can be messy, complicated, and often, heartbreaking. When emotions are charged, clients need cooler heads to prevail and the wisdom of objective counsel. The stakes are particularly high when children are involved. ​ Clients often come to us feeling helpless and overwhelmed. In our experience, the more educated a client is, the more empowered they feel. We assess their situation and develop a realistic legal strategy. We discuss potential options with both worst and best-case scenarios. We also collaborate with other attorneys to arrive at a non-adversarial outcome for all parties. If we do have to go to court, we fight passionately for our clients. ​ Family law is different from other types of law in that we are representing people—not businesses or corporations—at the most difficult time of their lives. It is a great privilege to be entrusted with details about their children, their finances, and their relationships. Many times, compassion and sensitivity are almost as important as legal acumen. Our goal is always to help families heal and move forward. ​ We represent clients in a wide variety of family law matters, including: ​ Divorce - collaborative, litigated, uncontested Custody Child support Adoption Pre- and post-nuptial agreements Modification and enforcement of custody and child support Family offense proceedings Orders of protection Qualified domestic relations orders Attorney for the Child For more information about family law, call Jennifer Shoemaker at 585.258.2825 or email . jshoemaker@underbergkessler.com OUR FAMILY LAW ATTORNEYS: Leah Tarantino Cintineo Family Law Rochester, NY Jennifer A. Shoemaker Family Law, Labor & Employment, Litigation Rochester, NY ARTICLES & POSTS View All Articles & Posts