On May 4, 2023, the United States Immigration and Customs Enforcement (“ICE”) announced that the COVID-19-related accommodations concerning the review of a new hire’s Employment Eligibility Verification Form (“Form I-9”) documentation will be discontinued on July 31, 2023. As such, employers should ensure compliance with the renewed Form I-9 review requirements as soon as practicable for every remote employee hired in the last three years. Since November 6, 1986, employers must verify and retain certain paperwork, including Form I-9, that demonstrates a new hire’s authorization to work within the United States. This requirement arises under the Immigration Reform and Control Act. Due to the social-distancing caused by COVID-19, in March of 2020, the Department of Homeland Security (“DHS”) and ICE published an announcement that employers were no longer required to review a new hire’s Form I-9 in the new hire’s presence. Remote review was authorized so long as an in-person inspection of the Form I-9 was completed within three (3) business days after an entity’s in-person operations resumed. These accommodations were updated in March 2021 , but a final termination date has been set for July 31, 2023. With the elimination of the Form I-9 accommodations, employers must work to ensure their Form I-9 paperwork for remote new hires is in compliance with the former Form I-9 review requirements within thirty (30) days of the effective date. As such, by August 30, 2023, employers must complete an in-person, physical inspection of Form I-9 documents for employees whose documents were inspected remotely and must notate in the “Additional Information” field in Section 2 of the Form I-9 that the new hire had a remote and subsequent physical inspection for reverification. ICE and DHS issued Form I-9 Examples Related to Temporary COVID-19 Policies as an aid to employers working on compliance during the 30-day grace period. It is also a possibility that DHS may issue new rules relating to last year’s publication of a “Notice of Proposed Rulemaking” for alternative procedures allowing remote document examination for Form I-9 documentation. Employers should keep a lookout for this final rule as it could influence the way employers are expected to complete and retain records relating to a new hire’s Form I-9 moving forward. 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.

In addition to its more noteworthy recent General Counsel proclamation that most non-compete agreements violate the National Labor Relations Act (“NLRA”) (see prior post - Non-Competes Soon To Be No More in New York?), the National Labor Relations Board (“NLRB”) recently found that certain common provisions of employer-provided severance agreements violate the NLRA. The NLRB has also recently released its latest view on when a worker should be classified as an independent contractor, not an employee. Regarding severance agreements, the NLRB focused on non-disparagement clauses and clauses requiring that the employee keep the circumstances of his or her employment confidential. The NLRB noted that Section 7 of the NLRA specifically permits employees to speak freely about their employment and employer, such that even the employer’s mere offer of those clauses violates Section 8 of the NLRA by forcing the employee to choose between their Section 7 rights and the proposed severance compensation. As to the employee/independent contractor test, the NLRB returned to the President Obama-era test, meaning potentially more employee and less independent contractor classifications, and likely more unions. No longer will the entrepreneurial opportunity for profit or loss be the “animating principle” of the test. Rather, that will again be one factor among the many traditional common law factors considering whether the worker is conducting an independent business. Particularly important is whether the company imposes restraints on that opportunity to be an independent contractor. 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.

Restrictive covenants generally, and covenants not to compete in particular, have long been difficult to enforce in New York, under the law as stated in the Seminal 1999 Court of Appeals BDO Seidman case. However, enough discretion remained in the law regarding the reasonableness of the covenant at issue that enforcement still occurs with some regularity. The New York Legislature has responded by passing a sweeping bill effectively banning all non-compete agreements. Governor Hochul has expressed support for barring non-competes in the past and could sign it into law any day. On the federal level, the General Counsel of the National Labor Relations Board has recently opined that non-competes are already illegal under the National Labor Relations Act, and that opinion will certainly be litigated. Independently, the Federal Trade Commission is reportedly considering a broad, fully retroactive non-compete ban. Although the proposed NYS law is not retroactive, it will certainly make it less likely older laws will be enforced. Remedies against employers attempting to impose or enforce non-competes under the new law include injunctions, attorneys’ fees, liquidated damages up to $10,000, and lost compensation, if any. Claims may be brought within two (2) years of signing a non-compete, the end of employment, or the start of attempted enforcement of it. While all employee non-competes would be voided by the law, employers could still utilize non-solicitation of customer agreements, though the litigation of who solicited who is often difficult for employers. Employers will also be able to retain clauses protecting trade secret and confidential client information to the extent they would not “otherwise restrict competition in violation” of the law. 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.

Fresh off proposing Clean Air Act vehicle emission rules in April that will mandate electric vehicles, on May 10, 2023, the Environmental Protection Agency (“EPA”) issued proposed rules that will dramatically reduce existing fossil fuel power plants. While the Supreme Court blocked President Obama’s Clean Power Plan last summer, EPA has gone back to the drawing board and issued new proposed plant rules under the Clean Air Act that will be more restrictive. Section 111 of the Clean Air Act provides that EPA can regulate pollutants from stationary sources through the “best system of emission reduction” that is “adequately demonstrated.” In addressing the myriad of power plant rules being issued, last year EPA Administrator Michael Regan said that ‘[b]y presenting all of those rules at the same time to the industry, the industry gets a chance to take a look at this suite of rules all at once and say, is this doubling down on investments in this current facility? Or should we look at cost and say now it’s time to pivot and invest in a clean energy future.” The rules will require fossil fuel plants to adopt carbon capture, low emissions hydrogen co-firing and natural gas co-firing for different categories of plants. The proposed rules require performance standards for new fossil fuel-fired plants and emission guidelines for existing gas and coal plants based on a variety of different categories of plants. In particular, new baseload and existing gas plants using carbon capture to comply will be required to capture 90% of CO2 by 2035. Gas plants that elect to use hydrogen co-firing will be required to burn 96% hydrogen by 2038. Coal plants are subject to more stringent limits, namely those still operating after adoption of the regulations and by 2040 will be required to co-fire with natural gas or operate less frequently. Strikingly, the rules mandate that any coal plants operating beyond 2039 will be subject to 90% carbon capture and sequestration requirements. As with most of the Biden Administration climate change rules and orders, there are fundamental problems with the mandate that have been ignored by EPA in issuing the rule. First, the technology that EPA wants to mandate does not presently exist. While EPA has suggested that the rules will not kick in for 7 to 12 years, the utilities sector makes business and investment decisions today. To the extent that the power plants implement carbon capture, the cost of generation is projected to double. This is likely to make fossil fuel plants less competitive against federal and state-subsidized wind and solar generation facilities. Carbon capture will also require significant permitting for pipelines and infrastructure. The EPA is not moving promptly on existing permit applications for carbon sequestration facilities. Beyond facilities, the system mandated by the new rules will require thousands of miles of pipelines to transport to carbon storage locations. Pipeline permitting, from the now canceled Keystone pipeline to regional natural gas pipelines, is fraught with uncertainty, delays, and legal challenges. Finally, EPA’s rules attempt to mandate switching away from fossil fuel plants and will inherently impact power grid reliability. While environmental groups and President Biden’s supporters are all in on the climate change policies reflected in the proposed rules, the power industry is significantly less enthusiastic and pragmatic about potential issues. Jim Matheson, CEO of the National Rural Electric Cooperative Association, noted that “[n]ine states experienced rolling blackouts last December as the demand for electricity exceeded the available supply. Those situations will become even more frequent if EPA continues to craft rules without any apparent consideration of impacts on electric grid reliability.” In addition, the plan threatens to eliminate large numbers of coal and fossil fuel jobs. Similar to EPA’s recent vehicle emissions rule, the power plant rules are almost certain to be challenged in the courts on various grounds. The recent decision by the United States Supreme Court in West Virginia v. EPA dealing with the Clean Air Act and the proposed Clean Power Plan established that EPA does not have unlimited authority to impose regulatory schemes that set major policy for the entire country. The decision addressed the major questions doctrine and found that “it is not plausible that Congress gave EPA the authority to adopt its own such a regulatory scheme…A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” West Virginia Attorney General Patrick Morrisey, who brought the challenge to the Clean Power Plan, has been critical of the proposed rules and stated that “[w]e plan on ensuring that those limits are upheld, and we expect that we would once again prevail in court against this out-of-control agency.” The Biden Administration is intent on addressing climate change through administrative rules and regulations. In doing so, EPA seems to ignore legal constraints that exist on agency action when dramatic, economy-wide changes are not legislatively adopted by Congress and instead instituted through rulemaking. Given recent legal challenges to agency action, such as West Virginia v. EPA , the new power plant rules will certainly be subject to suit and extensive appeals through the federal courts. Due to the significance of these rule changes and massive impact on US power production, legal scrutiny seems necessary in the absence of congressional action on the plan. George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation and Municipal Practice Groups 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.

We are pleased to announce that Ericka B. Elliott, associate attorney in the Litigation and Health Care Practice Groups, has been appointed to serve on the Board of Directors of Lifespan. Lifespan, founded in 1971, helps older adults and caregivers take on the challenges and opportunities of longer life. As an independent nonprofit, not aligned with any health care system, Lifespan is a source of unbiased information, guidance, and more than 30 services and advocacy for older adults and caregivers. They also provide training and education for allied professionals and the community on a wide variety of topics ranging from Medicare to fall prevention. Elliott focuses her practice mainly on health care and commercial litigation. She has a wide range of experience advising clients in civil litigation, municipal law, and on labor and employment matters. She earned her B.S. from Cornell University and her J.D. from the University at Buffalo School of Law. Elliott is a member of the Monroe County Bar Association (MCBA) and a participant in the 2023 Inaugural Class of the MCBA Leadership Academy. She also serves as a Board Member for 13thirty Cancer Connect, the Greater Rochester Association for Women Attorneys (GRAWA), the Lima Joint Village/Town Planning Board, and is a volunteer for the Cornell Alumni Admissions Ambassador Network.

As a landlord, it is best practice to stay updated on current eviction procedures. This article outlines the general steps any residential landlord should take when evicting a tenant under two common circumstances: (1) when a tenant fails to pay rent and (2) when a tenant fails to vacate the property at the conclusion of the lease term. It is worth noting that this article does not, however, consider regulations applicable to HUD-managed properties. The Premise. Management Co. (“Management”) executed a management agreement with Rent-With-Us, LLC (“RWU”), a local landlord of a duplex, that grants Management the right to collect rents and enforce tenant obligations at the duplex. Since managing the duplex, Management has monitored two tenants. The first tenant, Tina, occupied her apartment for three years and fell behind on rent two months ago. The second tenant, Charlie, occupied his apartment for nine months and has a lease term that expires in three months. Last week, RWU informed Management that it wants to evict (1) Tina if she fails to pay rent for the approaching month and (2) Charlie if he fails to vacate the apartment at the conclusion of his lease term. RWU wants to lease each apartment immediately following each tenant’s departure. Knowing that RWU wants to evict these tenants, Management must be proactive. The necessary paperwork must be prepared and served to each tenant before Management can file any eviction papers. Management must familiarize itself with the following forms to evidence RWU’s entitlement to warrant of eviction and judgment of arrears: (1) Notice of Failure to Receive Rent, (2) 14-Day Notice to Quit, (3) Non-Renewal Notice, and (4) an Affidavit of Service. Tenant 1: Failure to Receive Rent Payment Most lease agreements grant a landlord the right to evict a tenant if the tenant fails to pay rent in a timely manner. However, a tenant must first be given notice before a landlord can seek a court’s assistance with collecting rental arrears or removing an unwanted occupant. The following steps will help Management achieve RWU’s goals in a timely and efficient manner: Review the Tenant File . If organized correctly, the tenant file should provide Management with vital information about the tenant-landlord relationship and should include: (1) the lease agreement, identifying the tenant(s), the lease term, and the rental rate, (2) the tenant’s rental ledger, showing the tenant’s payment history, and (3) written communications between landlord and tenant, informing Management about any past complaints, which could become defenses for Tina’s failure to pay rent. Send Default Notice . To justify a landlord’s entitlement to rental arrears, Real Property Law § 235-e [d] requires Management to send Tina a Notice of Failure to Receive Rent, via certified mail, for each month she does not pay rent. Because Tina failed to pay rent for two prior months, Management can send one notice to Tina that identifies each month she failed to pay rent. Management must retain a copy of the certified mailing receipt to prove RWU notified Tina. If Management fails to send Tina this notice, Tina can claim she lacked knowledge of her default and request the court grant her additional time to cure. Communicate with the Tenant . It is best that Management sends Tina written communication after sending the default notice. Management should do this to demonstrate a good faith effort to rectify the default in terms agreeable to Tina and RWU. If Tina cures the default, Management no longer has a reason to evict Tina. If Tina fails to cure the default, Management must send Tina a 14-Day Notice to Pay or Quit and contact an attorney in anticipation of having to file an eviction petition. 14-Day Notice to Pay or Quit . Real Property Actions and Proceedings Law § 711(2) requires Management to serve Tina with a 14-Day Notice to Pay or Quit via personal hand delivery or double mailing, demanding Tina pay her rental arrears. The notice must breakdown RWU’s calculation of Tina’s arrears and put her on notice that if she fails to cure her default at the end of the 14-day notice period, RWU will initiate an eviction proceeding. As proof that Management sent the 14-Day Notice to Pay or Quit, an affidavit of service must be executed and notarized. Preparing the Petition . Management must work with their attorney to finalize the eviction petition. The attorney will need the tenant file, which, for a nonpayment eviction, must include: (1) any default notices and the corresponding certified mail receipts, (2) the 14-Day Notice to Pay or Quit and the corresponding affidavit of service, and (3) a copy of the fully executed lease agreement. The attorney may also need the management agreement with RWU to eliminate any challenges to Management’s ability to evict Tina. Tenant 2: Holdover A landlord has the right to have a tenant removed from an apartment if that tenant stays beyond the termination of their lease term without permission. The lease termination date should be included within the lease agreement, and Management should follow the steps below to ensure the correct paperwork exists to effectuate Charlie’s eviction if he decides to continue his occupancy of the apartment without RWU’s permission: Review the Lease Agreement . The lease agreement should list the lease term, informing Management when a Non-Renewal Notice should be sent to Charlie. Send Non-Renewal Notice . Because Charlie has a lease term of one year, he is entitled to a 60-Day Notice of Non-Renewal under Real Property Law § 226-C. The notice should be sent via certified mail and must put Charlie on notice that RWU has elected not to renew Charlie’s lease. The notice must also inform Charlie that his failure to vacate the premises will force RWU to initiate an eviction proceeding. Monitor the Premises . It is possible that Charlie may vacate the premises before his lease term ends, which will eliminate Management’s need to file an eviction petition. However, if Charlie fails to vacate the premises at the end of his lease term, Management should contact an attorney in anticipation of having to file an eviction petition. Send Default Notice . It is not unusual for a tenant to stop paying rent after receiving a Non-Renewal Notice. If Charlie stops paying his rent, Management must send Charlie a Notice of Failure to Receive Rent via certified mail for each month Charlie fails to pay rent. This notice must be sent after any grace period included in the lease agreement, and act as support for RWU’s entitlement to a judgment for rental arrears. Preparing the Petition . To file an eviction petition for a holdover tenant, the attorney Management retains will need: (1) the Non-Renewal Notice, (2) the default notices, if any, and the corresponding certified mail receipts, and (3) a copy of the fully executed lease agreement. The Takeaway . Evictions can be tricky. Efficiency and cost effectiveness depends on: (1) a landlord’s ability to maintain complete tenant records, ensuring each tenant has a file that includes (a) a fully executed lease agreement, (b) an updated rental ledger for the tenant, (c) all written communications to and from the tenant, and (d) the records of service for any notices sent to the tenant, and (2) getting an attorney involved as early in the process as possible. 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 (585) 258-2820 or at kmccarley@underbergkessler.com. Reprinted with permission from The Daily Record and available as a PDF file here .

In a recent trend, public employees across the country have found themselves the subject of live video and/or audio of them at work. The theory from the videographers (who claim they are performing “First Amendment Audits”) is that public workplaces are legally accessible, and the law as interpreted thus far had largely supported that argument. Some of the videographers have gone further and attempted to goad public employees into negative, even physical, reactions to the filming, and in some now infamous examples, have succeeded. Accordingly, public employees are encouraged to remain calm in these situations and allow the video and audio in truly public spaces. Meanwhile, one local restriction in Florida banning video and audio recording of anyone at city hall who does not consent has been upheld as enforceable based on it being “reasonable and viewpoint-neutral.” Municipalities in New York may well consider similar restrictions in the coming months and years. If you have any questions regarding this or any other Labor & Employment law topic, please call Paul F. Keneally at (585) 258-2882 or pkeneally@underbergkessler.com.

We had a great time helping Heritage Christian Services last week for the United Way’s Day of Caring. Our Diversity, Equity, Inclusion & Belonging Committee (DEIB) Committee coordinated the raking, mulching, weeding, planting, and cleaning efforts of U&K colleagues to spruce up the organization’s Baird Road location. Our team had lots of fun and worked hard to help a wonderful organization. Thanks to U&K's Leah Cintineo, Debbie Christiano, David Craig, Kate Karl, Paul Keneally, Robert LaPlaca, Kaitlyn Pierce, Tyler Stark and Alex Wezelis for volunteering.

If you like your gas-powered car or truck, you cannot keep it according to the Biden Administration’s proposed Clean Air Act vehicle emission rules. On April 12, 2023, the Environmental Protection Agency (“EPA”) issued a proposed rule for carbon dioxide emissions that limits the amount generated by cars and trucks from 2027 through 2032. In order to meet the standards, electric vehicles (“EV”) will need to account for two-thirds of car and light truck sales by 2032. Strikingly, this mandate is even more aggressive than President Biden’s August 2021 Executive Order that set the lofty goal of having 50% EV sales by 2030. Based on the 2021 EPA standards, EPA’s emission standard was a grams/mile of CO2 equivalent of a fleet average of 161 g/m for the 2026 model year. By comparison, EPA’s new proposed vehicle standard sets an emission limit of 152 g/m for 2027 cars and trucks. The standard escalates each year until the 2032 period when the limit is 82 g/m. To meet the 2032 standard vehicles would be required to meet a fuel economy standard of around 100 miles per gallon. Although EPA is ostensibly attempting to use the Clean Air Act emission limits to regulate emissions, this rule is intended to force US automakers to phase out gas-powered vehicles and produce EVs. EVs only account for around 6% of vehicle sales currently, so it is hard to conceive of how automakers or the country will be able to transition to meet EPA’s mandates in the next decade. As we have reported in prior articles, there are also a myriad of issues in transitioning to large scale EV use by US consumers and businesses. While the issues seem fundamental, they are apparently not worthy of consideration by the Biden Administration and EPA in setting car and truck emission standards that will be incredibly expensive and disruptive for citizens. First, EVs are substantially more expensive than gas-powered vehicles ranging from 10% to 40% more. In an attempt to offset expense concerns, EPA has suggested that the rules are feasible due to subsidies and tax credits under the Inflation Reduction Act. Even accounting for the subsidies, the Energy Information Administration recently forecast that EVs will only make up 15% of sales in 2030 and 19% in 2050. The report also noted that although EVs are popular among luxury cars, they “remain less competitive against conventional gasoline-powered cars and light trucks serving the mass market.” The practicality of EVs is also limited. EVs are presently appealing to citizens in urban areas that do not drive long distances. This is not surprising given the average range of an EV is 250 miles. In addition, charging times can be significant. Household charging can take up to 50 hours. Even using a 240 outlet to charge an EV can take up to 10 hours. The US electrical grid currently does not have sufficient capacity to charge an EV car and truck fleet if consumers transition to the level of EV use mandated under EPA’s new rules. As addressed previously in this column, residential neighborhoods do not have sufficient capacity to sustain large-scale EV charging during peak night-time hours. Without massive changes to the electrical grid, the country could be subject to significant blackouts like California and Texas recently experienced. An additional consideration in northern climates is that EVs are less efficient and safe in snow and extreme conditions. After sustaining multiple winter storms in Western New York and the Buffalo area during the winter of 2022-2023, in which numerous lives were lost when drivers were stranded, vehicle safety and security seem critical to New York residents. Assessments have indicated that EVs are 25% less efficient in freezing weather and up to 40% less efficient when drivers are using heat in vehicles. Finally, the Biden Administration mandate is completely divorced from any analysis of international security and energy independence to protect the interest of US citizens and businesses. As we have reported in this column previously, EVs require lithium, copper, and cobalt for battery manufacturing. The vast majority of these minerals are mined in areas of the world that are not friendly to US interests. Significantly, China and Chinese-owned state industries have taken steps to acquire control of mining and processing companies that control the precious metals necessary for EV battery production. At a time of heightened tensions with China, it makes very little sense to mandate US companies and consumers become further dependent on Chinese-controlled materials to meet an emission standard that can only be attained through transformation to EV use. As we have seen with petroleum supplies and costs from the Middle East, ceding US energy independence has only hurt US consumers and heightened inflation. Compelled transformation to EVs by 2032 is likely to do the same on a massive scale. Reactions to the proposed rule have been quite stark. Among other comments, Senator Joe Manchin (D-W.Va.) said that EPA is “lying to Americans” with “false claims about how their manipulation of the market to boost EVs will help American energy security.” Further, Senator Manchin noted that “[i]n reality, this is a Trojan horse.” Manchin expressed concern that “[t]o meet these timelines will mean strengthening our reliance on minerals and technologies controlled by the Chinese.” As a result, Senator Manchin indicated that he would support other Senators’ growing calls to take legislative action to overturn the proposed EPA rules. The proposed EPA rule is also likely to be challenged in the courts on various grounds. A recent decision by the United States Supreme Court in West Virginia v. EPA dealing with Clean Air Act and the Clean Power Plan established that EPA does not have unlimited authority to impose regulatory schemes that set major policy for the entire country. The decision addressed the major questions doctrine and found that “it is not plausible that Congress gave EPA the authority to adopt its own such a regulatory scheme…A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” In recent weeks, we have seen state and national reporting on efforts by New York State and the federal government to ban natural gas stoves and furnaces. On some level, those stories are amazing and fundamentally detrimental to personal choice and freedom. The Biden Administration’s self-pronounced war on fossil fuel has now taken a huge leap with the EPA’s proposed vehicle emission rules that will require two-thirds of all vehicles to be EVs by 2032. However, one feels about environmental protection and climate matters, Americans would be well served to vote like their freedom, safety, and lifestyle depend on election outcomes as this is further proof that elections matter. George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation and Municipal Practice Groups 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.

Congratulations to Paul F. Keneally for being selected to The Daily Record's 2023 Power 20 Labor & Employment Law list for the second 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 both companies and employees navigate the ever-changing laws and regulations that govern employment. In recent years, that has included everything from minor issues to major concerns such as remote working policies, pay transparency, non-compete agreements, and more. These attorneys help their clients stay informed and protected and represent their clients’ interests when necessary," stated Ben Jacobs, Associate Publisher and Editor of The Daily Record. Keneally serves as Chair of the Firm's Labor & Employment Practice Group and is a Partner in our Litigation and Municipal Law Practice Groups. He focuses his practice on providing advice to clients on a wide range of day-to-day labor and employment matters, resolving complex litigation, labor and employment disputes, and more. Keneally serves on the Board of Directors of the Society of Human Resource Management as its Legislative Representative and as Counsel to the Board of Directors and Management of The Tennis Club of Rochester. He is a past member of the Board of Directors of Literacy Volunteers of Rochester, Career Development Services, and the Young Audiences of Rochester.

On April 11, 2023, the New York State Department of Labor (“NYSDOL”) released the State’s updated model Sexual Harassment Prevention Policy (a copy of the model policy, which employers can adopt, is available here). The NYSDOL also released an updated training video (available here) and new training presentation slides (available here) that incorporate the additions to the new policy. The NYSDOL’s major revisions to the model policy include: Memorializing the 2018 amendments to the New York Labor Law that reduced the measure of unlawful conduct from a “severe or pervasive” standard to lower conduct that is “less well” based on a legally protected characteristic and above a “petty slight or trivial inconvenience;” Defining sexual harassment as a form of “gender-based” discrimination inclusive of gender, sexual orientation, gender identification and expression, and being transgender; Explicitly stating that harassing conduct can occur in remote workplace settings; Explicitly stating that intent is not a defense under the law. Rather, it is the impact on the victim and perspective of “reasonable victim of discrimination with the same protected characteristics” that will be relevant in assessing whether the law has been violated; Explicitly stating that management must “accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive and free from retaliation for them during and after any investigation;” Adding a new section encouraging bystander intervention, including five (5) methods that can be used if an employee witnesses harassment or discrimination; and Referencing New York State’s confidential hotline for complaints of workplace sexual harassment, which was introduced in July 2022. To be clear, although the new model policy is focused on gender-based discrimination and is entitled “Sexual Harassment Policy for All Employers in New York State,” the New York State Human Rights Law protects against discrimination in other protected characteristics and the policy “should be considered applicable to all protected classes.” It is therefore important for employers to review and update their policies and training materials as soon as possible to ensure compliance. 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 To have these legal alerts sent straight to your email, click here to join our email list.

Underberg & Kessler LLP and Genesee Regional Bank are pleased to present a complimentary seminar for realtors to learn timely and critical information to help them stay current in the ever-changing residential real estate market. The "Stay Current in Today's Residential Real Estate Market" seminar will feature presenters from GRB and U&K covering important topics such as: Strategies for navigating the spring-summer market from a lender's perspective New mortgage loan products to help you succeed What are Good Cause Evictions and why are they so controversial? How to avoid the “terrible, horrible, no good, very bad” closing The latest on New York State's gas appliance ban Housing industry shortages and potential solutions on the horizon The event will be held on May 4th, 2023, from 8:00 am - 11: 00 am at Monroe Golf Club. There is no charge to attend this presentation but seating is limited - so register soon! Registration is required to attend. Click here to register.