We are pleased to announce that Renee Segina Moore has joined the Firm as an Associate in the Litigation and Creditors’ Rights Practice Groups. Drawing on her background as a Certified Public Accountant, Renee leverages her audit and accounting experience to provide clients with the unique perspective of an attorney who not only understands the legal side of disputes, but also any financial implications critical to achieving client objectives. She represents businesses and individuals in litigation, negotiation, and mediation. She has experience preparing demand letters, legal pleadings, settlement agreements, appeals and Qualified Domestic Relations Orders in the courts and administrative tribunals. Renee also has experience representing clients in discrimination, harassment, and whistleblower retaliation cases, as well as matters involving the Rehabilitation Act of 1973, the Americans with Disabilities Act, and USERRA. Renee earned her B.S. from the University at Buffalo and her J.D. from the University at Buffalo School of Law. She is a member of the Monroe County Bar Association and the Rochester City Ballet Board of Directors.

In the wake of the tragic fires in Maui, troubling details are emerging regarding how utility companies are allocating resources to meet regulatory demands. At this writing, the Maui fires are reported to have taken approximately 115 lives, caused over 1,000 people to be missing and destroyed hundreds of buildings. The fires are the deadliest in the United States in over 100 years. While tragedies happen, questions are starting to build about the focus of local utility Hawaiian Electric. Initial investigations from sensor networks and cameras in areas of Maui point to trees falling on Hawaiian Electric power lines as the likely initial cause of the devastating fires. According to The Washington Post, a firm called Whisker Labs, which has advanced sensor networks that monitor grids across the country, recorded significant incidents with the system. Cameras in Maui also recorded “arc flash” incidents from when a power line faults or comes in contact with vegetation, another line, or gets knocked down discharging the power through sparks. While there were multiple fires burning in Maui on Monday, August 7, sensors detected two significant faults in the power grid in Lahaina early on Tuesday, August 8. In the brief time since the fire, several lawsuits have been filed against the utility claiming that the company failed to take proper steps regarding power line safety after a 2019 fire, including shutting down power lines prior to intense wind conditions to avoid problems with downed trees or lines sparking a fire. The lawsuits claim that the company failed to act for years to mitigate fire risks. Among other items, the lawsuits point to Hawaiian Electric filings which acknowledge in press releases and state filings that downed power lines and infrastructure where vegetation growth is not addressed may increase wildfire chances but did not act on the findings. In recent Wall Street Journal reports about the Maui fires, there are clear indications that the utility was aware for many years that unsecured power lines and increases in dry brush and vegetation across the island was leading to a substantial increase in wildfires. Significantly, The Journal reported that “the number of acres burned on the island soared to 39,000 in 2019, from 150 in 1999.” Further, that “roughly one-quarter of the state land in Hawaii is now covered by invasive grasses and shrubs.” Following the 2019 wildfire season, Hawaiian Electric obtained a report that concluded that the utility should do significantly more to prevent power lines from setting grasses and vegetation on fire. In the span of time since, the utility has spent a mere $245,000 on wildfire projects. Significantly, the utility instead spent millions to try and meet a 2015 mandate created by legislators and climate change activists that would require 100% of the utility’s electricity come from renewable sources by 2045. Rather than ensuring grid stability and public safety from confirmed wildfire risks, the company focused predominately on transforming electricity generation. The grid reliability and safety issues in Hawaii should serve as a caution to states on the mainland such as New York and California that are aggressively pushing climate change utility transformation. Forcing renewable energy transformation of power production should not come at the risk of public safety and grid security. As we have reported previously, New York’s Climate Leadership and Community Protection Act (“CLCPA”) calls for greenhouse gas reduction from 1990 levels of 40% by 2030 and 85% by 2050. Consequently, New York is seeking a renewable energy generation target of 70% by 2030 and 100% emissions free by 2040. These targets are exceedingly ambitious and are replete with siting, approval, implementation, and reliability concerns. A Final Scoping Plan (“the Plan”) was adopted by the CLCPA Climate Action Council in December 2022. The Plan will fundamentally change how New York residents live by banning gas heating equipment and cooking appliances. It requires adoption of zero-emission building codes and standards. All new residential construction projects in single-family and low-rise buildings will be required to install zero-emission equipment starting in 2025. The Plan requires energy-efficient heat pumps or other non-combustion heating systems in these residences after that date. High-rise residential and commercial buildings will be required to use zero-emission equipment in 2028. Significantly, New York residents with existing homes will be required to replace fossil fuel burning heating units that fail after 2030 with zero-emission systems. As a result, if you have a natural gas boiler or furnace and it fails in 2030, the Plan mandates that you replace it with an entirely new technology at unknown cost and availability. The Plan mandates transforming New York’s power system to meet the CLCPA standards. In particular, to meet the goal of an electric system that produces no emissions in 2040, it requires the deployment of 6,000 megawatts of solar by 2025 and 9,000 megawatts of offshore wind by 2035. The Plan also calls for deploying 3,000 megawatts of energy storage by 2030 in an attempt to create more in-state power and flexibility. While New York does not typically experience tragic wildfires like occurred in Maui, there are regular snowstorms, windstorms, and ice storms. All of which can shut down power generation and transmission facilities or destroy transmission lines. The availability, cost, and reliability of renewable power sources does not appear to have been factored into the Plan in any meaningful way. In the aftermath of the Buffalo Blizzard in December 22, where many lost their lives due to frigid conditions, what happens if New York rapidly transitions to untested and unproven green power sources in the future and major storms hit the state? In particular, will energy systems mandated by the Final Scoping Plan and CLCPA provide safe, reliable energy and heat for New York residents experiencing severe weather? George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation Practice Group and Chair of the firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation. George can be reached at gvannest@underbergkessler.com. Reprinted with permission from The Daily Record and available as a PDF file here.

Joining many municipalities across New York State, including the cities of Albany and Rochester, and the Town of Brighton, Monroe County now prohibits questions about criminal history on employment applications. The county passed the “Ban the Box” law (officially the Monroe County Fair Chance Employment Act) in early August 2023 to attempt to lessen the discrimination faced by jobseekers with prior convictions. Employers in Monroe County will still be able to do criminal background checks once they have made conditional job offers and then conduct the appropriate analysis under the New York Corrections Law to see if any conviction may be considered in the ultimate employment decision. A county spokesman noted that it has 800 jobs of its own open that may be easier to fill now and commented that it was motivated by the disproportionate impact that prior conviction discrimination has on Black and Latino applicants. Finally, the county cited the increased tax revenue and decreased recidivism rates the law will bring. The law does not apply to employers who must do mandatory criminal history checks, like the police and childcare entities. Employers who violate Ban the Box policies may face New York State Division of Human Rights discrimination complaints, which do not cost the applicant anything to file. If you have any questions regarding this or any other Labor & Employment law topic, please call Paul F. Keneally at (585) 258-2882 or email pkeneally@underbergkessler.com.

We are proud to announce that twelve attorneys were recently selected for inclusion in the 2023 Upstate New York Super Lawyers list and three additional attorneys were recognized in the 2023 Upstate New York Rising Stars list. Super Lawyers recognizes the top attorneys nationwide, across a variety of practice areas and firm sizes, using a patented process of independent research and peer input. The process selects attorneys on an annual, state-by-state basis using peer nominations and evaluations combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement and only 5% of attorneys are selected to Super Lawyers and 2.5% to Rising Stars. The attorneys selected for inclusion in the 2023 Upstate New York Super Lawyers list and their recognized practice areas are: James A. Coniglio – Government Finance Patrick L. Cusato – Real Estate Steven R. Gersz – Businesses & Corporate Katherine H. Karl – Banking Paul F. Keneally – Employment & Labor Thomas F. Knab – Business Litigation Anna E. Lynch – Health Care Colin D. Ramsey – Health Care Jennifer A. Shoemaker – Family Law Margaret E. Somerset – PI Medical Malpractice: Defense David M. Tang – Creditor Debtor Rights George S. Van Nest – Environmental The attorneys selected for inclusion in the 2023 Upstate New York Rising Stars list and their recognized practice areas are: Justin P. Alexander – Real Estate Leah Tarantino Cintineo – Family Law Ericka B. Elliott – Creditor Debtor Rights

As we previously advised, on June 3, 2022, the New York State Legislature passed Senate Bill 9427A/A.10477 – the Pay Transparency Law. Since our earlier post, the bill was signed into law by Governor Hochul and is set to go into effect on September 17, 2023. This statewide mandate requires employers with at least four (4) employees to disclose the compensation or range of compensation in any advertisement for a job, promotion, or transfer opportunity. In addition to salary disclosure, employers must also disclose the job description for the position, if one exists. Unlike the proposed bill, the statute signed by the Governor removed the previous version’s requirement for employers to keep records of the history of compensation ranges and job descriptions. The law applies to postings for jobs that will be physically performed in New York. However, if the role reports to a supervisor, office, or other worksite in New York, the job posting will also require a pay range. Put differently, if a position will be fully performed outside of New York – even in a non-remote location – but will report to an office or manager within the state, the job posting will need to include the pay range. Given that the effective date of this law is quickly approaching, employers will want to revisit and, if needed, revise both internal and external job postings. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters, or Ryan T. Biesenbach at (585) 258-2865 or rbiesenbach@underbergkessler.com.

In early August 2023, the National Labor Relations Board (“NLRB”) announced a revised, more restrictive legal standard to determine whether employer-created workplace policies and rules violate the National Labor Relations Act (“NLRA or the Act”). In Stericycle, Inc., 372 NLRB No. 113 (2023), the NLRB reestablished the framework by which workplace rules and policies are evaluated. Under the new Stericycle standard, the NLRB will analyze, through case-by-case review, whether an employer’s rule or policy has a reasonable tendency, in the eyes of an employee, to chill or inhibit employees from exercising their NLRA Section 7 rights, (such as the ability to engage in concerted activity related to the terms and conditions of employment). If the NLRB finds the rule or policy has such a tendency, the rule/policy is presumed unlawful and the burden shifts to the employer to rebut the presumption by showing that the rule advances a legitimate and substantial business interest that cannot be achieved with a more narrowly tailored rule. Under the new standard, the analysis will be based on the perspective of an employee “economically dependent” on the employer who considers engaging in activity protected by the Act. Given this decision, employers should review their workplace policies and rules for content and clarity. Key in this exercise is ensuring that policies are sufficiently tailored to achieve only their desired, and lawful, purposes. If you have any questions regarding this article, or how to determine if your employment policies are legally compliant, please contact the Underberg & Kessler attorney who regularly handles your legal matters, or Ryan T. Biesenbach at (585) 258-2865 or rbiesenbach@underbergkessler.com.

We are happy to announce that three attorneys were selected by The Best Lawyers in America® as recipients of the 2024 “Lawyer of the Year” award in their practice areas. In addition to individual recognition, Best Lawyers also awards "Lawyer of the Year" accolades to individual lawyers who received the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the "Lawyer of the Year" for a specialty and metropolitan location per edition. The attorneys selected as a 2024 “Lawyer of the Year” and their areas of recognition are: James A. Coniglio – Municipal Law in Geneseo, NY Thomas F. Knab – Litigation – Construction in Buffalo, NY Anna E. Lynch – Elder Law, Rochester, NY Best Lawyers recognitions are based on an exhaustive Purely Peer Review® evaluation. More than 123,000 industry leading lawyers are eligible to vote, and Best Lawyers receives more than 20 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2024 edition of The Best Lawyers in America, more than 13.7 million votes were analyzed, which resulted in more than 76,000 leading lawyers included in the milestone 30th edition.

We are proud to announce that 15 attorneys were recognized in the 2024 edition of The Best Lawyers in America and one attorney was selected to the 2024 edition of Best Lawyers: Ones to Watch in America. The attorneys selected by Best Lawyers and their areas of recognition are: James A. Coniglio* – Municipal Law, Geneseo, NY Patrick L. Cusato – Real Estate Law, Rochester, NY David H. Fitch – Litigation - Health Care; Medical Malpractice Law – Defendants, Rochester, NY Steven R. Gersz – Closely Held Companies and Family Businesses Law; Corporate Law, Rochester, NY Timothy P. Johnson – Real Estate Law, Buffalo, NY Katherine H. Karl – Banking and Finance Law; Commercial Finance Law; Commercial Transactions/UCC Law; Real Estate Law, Rochester, NY Paul F. Keneally – Commercial Litigation; Labor Law – Management; Litigation - Labor and Employment, Rochester, NY Thomas F. Knab* – Commercial Litigation; Litigation – Construction; Litigation – Insurance; Litigation - Labor and Employment, Buffalo, NY Anna E. Lynch* – Corporate Law; Elder Law; Health Care Law, Rochester, NY Colin D. Ramsey – Legal Malpractice Law; Defendants and Litigation – Insurance, Buffalo, NY Edmund J. Russell III – Banking and Finance Law; Corporate Law, Rochester, NY Margaret E. Somerset – Medical Malpractice Law – Defendants, Rochester, NY David M. Tang – Health Care Law; Litigation - Health Care, Rochester, NY George S. Van Nest – Environmental Law, Buffalo, NY Helen A. Zamboni – Corporate Law; Real Estate Law, Rochester, NY *Also awarded 2024 “Lawyer of the Year.” The attorney selected by Best Lawyers: Ones to Watch and his two areas of recognition are: Justin P. Alexander – Banking and Finance Law; Real Estate Law, Rochester, NY Best Lawyers recognitions are based on an exhaustive Purely Peer Review® evaluation. More than 123,000 industry leading lawyers are eligible to vote, and Best Lawyers receives more than 20 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2024 edition of The Best Lawyers in America, more than 13.7 million votes were analyzed, which resulted in more than 76,000 leading lawyers included in the milestone 30th edition.

Congratulations to Joshua B. Beisker for being selected to The Daily Record's 2023 Power 20 Trusts & Estates Law list for the third year in a row. The Power 20 list showcases power players in the Western New York legal community who are recognized as leaders in their area of practice. “The people on this list help clients make sure their wishes are followed and their families’ well-being is protected. These lawyers guide clients through stressful and uncertain times to give them the peace of mind they deserve. And they have done so while navigating ever-changing ways of doing business over the past several years.," stated Ben Jacobs, Associate Publisher and Editor of The Daily Record. Josh serves as Chair of the Firm's Estates & Trusts and Tax Law Practice Groups. He focuses his practice in the areas of complex estate planning and estate administration matters. He also provides counsel to businesses on tax and succession planning, general corporate governance, and achieving tax efficiencies. Josh is a frequent lecturer at numerous organizations including the National Business Institute, universities and other educational institutions, adult education programs, financial planning organizations, alumni groups, and community organizations. He is a member of the Estate Planning Council of Rochester and the Monroe County and New York State Bar Associations.

You will be hard pressed today to find someone who does not have an electronic footprint. Whether it’s email, social media, bank accounts, or simply owning a smartphone, almost every person creates an electronic trail. Knowing that these trails exist is crucial to any comprehensive litigation discovery plan, especially if electronically stored information (“ESI”) is relevant. This article lays out some reminders and warnings when preparing an electronic discovery (“E-discovery”) plan and evaluating the forms of discoverable materials relevant to a case. Preparation of a Case Pursuant to Rule 1.1 of the New York Rules of Professional Conduct, “A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Included within this rule’s comments is a provision that reads: “To maintain the requisite knowledge and skill, a lawyer should … keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.” For attorneys, there is an obligation to be knowledgeable about the technology used by clients, their law firms, and their legal offices, especially in anticipation of litigation. First, it is important to understand one’s obligations when it comes to disclosure. With some exceptions, both the New York Civil Practice Law and Rules and the Federal Rules of Civil Procedure require parties in litigation to disclose any and all nonprivileged matters that are material and necessary to prosecute or defend an action. The test of materiality is one of usefulness and reason, and this rule extends to ESI as well. Second, it is important that you know where to look for matters that are material and necessary to support your client’s claim(s). To achieve this goal, create an outline of questions you plan to pose to your client about their claim(s). The purpose of these questions is to develop your knowledge about potential adverse parties, the custody and location of important documents and materials, the method, content, and timing of communications between relevant parties, the types of technology, if any, used to effectuate those communications, and how said technology works. Although this is not an exhaustive list, it includes most questions that should be answered before filing a lawsuit. Once your questions are composed, schedule a meeting with your client to evaluate the merit of the claim(s). Evaluation of the Merits The courts obligate counsel for all parties to consult prior to a preliminary or compliance conference about various topics, including discovery and any voluntary disclosure the parties agree will aid in early settlement of the matter. As such, understanding your client’s claims and having knowledge about the location of relevant documents, including ESI, in advance of consulting with opposing counsel is crucial. When evaluating your client’s claim(s), you must determine whether metadata should be considered in your analysis. Metadata is relevant to the disclosure of ESI because it can contain the underlying characteristics, origins, and usage of an electronic document. Metadata is important for any action where the following are relevant: (1) location and custody of ESI and (2) file creation and modification dates. As such, when questioning your client about their claim(s), be sure to inquire about the retrieval process governing relevant ESI. For instance, ensure your law firm or legal office has the capability to review the file types produced by your client’s technology. When ESI is retrieved and can be reviewed in its original format, you are better able to see your client’s claim from their perspective and zealously advocate their claim(s) in a tribunal. Once you understand the universe of materials available to your client, identify who controls them, learn where they may be located, and evaluate the discovery devices necessary to access the sought-out information. For example, when questioning your client, you may learn that your client retains a third-party vendor for ESI storage, including emails, text messages, and client files, or you may learn that the adverse party made certain admissions via voice memos, which are stored in Apple’s cloud database. In either scenario, this learned information could be the basis to issue a subpoena to the third-party vendor or to Apple to gain access to desired materials. The Litigation Hold Once the evaluation is complete, you should have a better idea whether litigation will ensue. If you reasonably anticipate litigation, you must issue and oversee the distribution of a written litigation hold notice. If you posed a thorough line of questioning to your client, you should have a list of adverse parties or non-parties who act as the custodian of important materials. These are the people and entities that should be contacted about the possibility of litigation and the requirement to protect and preserve material documents, including ESI and related metadata, from routine disposition. Please be aware that if you fail to issue a litigation hold notice at the proper time, you, your law firm, your legal office, or your client could be subject to sanctions for spoliation of evidence. The Takeaway As the world has grown more connected due to technological advances, the world of electronic discovery, too, has grown, and with this growth has come an increased obligation for attorneys to understand their client’s electronic footprint. Being strategic and purposeful in your preparation and evaluation of a case can make all the difference when the time comes to litigate the matter and engage in discovery. Katherine T. McCarley is an Associate in Underberg & Kessler LLP’s Litigation Practice Group. She focuses her practice in the areas of civil and commercial litigation, defending institutional and small businesses. Katherine can be reached at kmccarley@underbergkessler.com Reprinted with permission from The Daily Record and available as a PDF file here.

On July 25, 2023, the United States Citizenship and Immigration Services (“USCIS”) published a notice to inform the public that the Employment Eligibility Verification Form (“Form I-9”), has been updated. Employers are encouraged to familiarize themselves with the updated form and the methods available for completing the new Form I-9, including the E-Verify option. As such, this post is intended to summarize some of those updates and alert employers about the approaching Form I-9-related deadlines. General Background Between March and September of 2022, USCIS and the Department of Homeland Security (“DHS”) ran congruent efforts to gauge the public’s perspective on proposed changes to the Form I-9 and related review procedures (see our post from early 2022 that highlights some of the proposed changes here). USCIS published two information collection notices and reviewed and responded to hundreds of comments between the two information collection notices. DHS issued a Notice of Proposed Rulemaking and sought comments on an optional alternative to the required in-person physical document examination method. DHS has since published the Final Rule, which is available in the Federal Register. Form I-9 Amendments Amendments have been implemented for both Form I-9 and its correlating instructions. The goal of the amendments is to reduce employers’ and employees’ respective burdens when completing the form. Some of the major changes to Form I-9 are listed below: Section 1 and Section 2 have been reduced to one, shared, single-sided sheet. Section 3 has been moved to a separate supplement form, Supplement B. Form I-9 can now be filled out on tablets and mobile devices. A box has been added to indicate that an employee’s Form I-9 documentation was examined via a DHS-authorized alternative procedure instead of via physical examination. To correlate with the Form I-9 amendments, the instructions were also revised. Some of these changes include shortening the length of the instructions from fifteen (15) pages to eight (8) pages and adding a section on how employers are to utilize the new checkbox for alternative Form I-9 review procedures. The Final Rule: Alternative Review Procedure In conjunction with the new Form I-9, DHS, in partnership with the Social Security Administration (“SSA”), has modernized employment eligibility verification, taking steps to offer certainty and flexibility to American businesses considering the realities of post-COVID work cultures where remote employment has become increasingly prevalent. E-Verify is a free, flexible, and electronic option for employment eligibility verification that advances DHS’s mission of safeguarding the integrity of the employment eligibility verification process. Employers should not be intimidated by this process as DHS has ensured employers have access to information about this program. The E-Verify website provides information and resources, including webinars, to employers about the alternative verification method, E-Verify qualifications, and the enrollment process. Under the current requirements, employers are required to conduct a physical examination of Form I-9 documentation within three business days after the first day of employment of a new hire. Employers who enroll with E-Verify will have the option to complete the review process via either physical or remote examination. Employers that do not qualify for the E-Verify program must perform all required physical examinations of identity and employment authorization documents for those employees hired after March 20, 2020, and for those employees who have received only a virtual or remote examination under the temporary COVID-19 accommodations. Noteworthy Dates As a reminder, the temporary COVID-19 accommodations permitting remote review of employee identification and employment authorization documents ends today, July 31, 2023 (see our prior post on the topic here). Employers who elect not to enroll in, or who do not qualify for, the E-Verify program have until August 30, 2023 to become compliant with Form I-9 physical examination requirements. Starting August 1, 2023, employers can download or purchase the paper versions of the updated Form I-9 from USCIS’s website. Like the current Form I-9, a Spanish language version of the new Form I-9 will also be available on USCIS’s website. The current version of the Form I-9 continues to be effective through October 31, 2023. As such, starting November 1, 2023, the current version of Form I-9 will be discontinued and invalid. Employers that are working to gain compliance by the August 30, 2023 deadline should be careful to avoid unnecessary verification for current employees with a properly completed Form I-9 on file. Unnecessary verifications could result in a violation of the anti-discrimination provision of the Immigration and Nationality Act. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley at (585) 258-2820 or kmccarley@underbergkessler.com.

We are pleased to announce that Ryan T. Biesenbach, associate attorney in the Labor & Employment and Litigation Practice Groups, has been appointed to serve on the Board of Directors of Literacy Rochester. Founded in 1964, Literacy Rochester’s mission is to improve reading, mathematics, English language, and digital literacy skills of adults. They provide one-on-one tutoring, small group instruction, family literacy programs, adult basic computer skills training, and English conversation skills classes. Ryan advises clients on all aspects of labor and employment law, including the development of effective employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and ensuring compliance with state and federal labor laws. Ryan additionally has experience in all stages of litigation, from intake to resolution in federal and New York State courts, tribunals, and agencies. He earned his B.A. from the State University of New York at Fredonia, his M.A. from Wake Forest University, and his J.D. from the Maurice A. Deane School of Law at Hofstra University. Ryan is a member of the Society for Human Resource Management and the Monroe County Bar Association.