In its recent decision in Helix Energy Solutions Group, Inc. v. Hewitt, the United States Supreme Court ruled that high compensation alone does not ensure exemption from the right to overtime under the Fair Labor Standards Act (“FLSA”). Employees are frequently referred to as “hourly” and entitled to overtime under the FLSA, or “salaried” and not entitled to overtime under the FLSA. It should be well known by now that being “salaried” is not enough for an FLSA exemption, as the salary must be above the relevant minimum amount and one of the exemption “duties” tests must be met. In this case, the U.S. Supreme Court dealt with a situation where the employee claiming overtime made over $200,000.00 a year but was paid on a daily basis, not a salaried one. The Court responded by holding that the payment on a salaried basis remains a requirement to be exempt regardless of the amount of compensation received on another basis (in this case by day-rate). Salaried is defined as where the employee receives a “predetermined amount constituting all or part of the employee’s compensation which amount is not subject to reductions because of variations in the quality or quantity of the work performed.” The “highly compensated” exemption to the FLSA overtime rule remains for those making at least $107,000.00 a year, but only where at least the minimum amount of that compensation ($684 per week) is paid on a salary basis. Also, the employee’s primary duty must include performing office or nonmanual work and the employee must customarily and regularly perform at least one of the exempt duties or responsibilities of an exempt executive, administrative, or professional employee. It is usually not difficult to find one of those exempt duties being performed by a typical office employee. Employers grappling with any of the subtle FLSA overtime exemptions should consult with their employment attorney or contact Paul F. Keneally at (585) 258-2882 or pkeneally@underbergkessler.com. To have these legal alerts sent straight to your email, click here to join our email list.

The environment for long-term care for the elderly, and particularly skilled nursing care, is complex, often emotionally charged, and marked by financial burdens on all sides. Skilled nursing care is costly to provide and thus expensive, and nursing homes and their residents are facing unprecedented staffing shortages, economic pressures, and a complicated network of statutes and regulations (including the Medicare and Medicaid laws). My family’s recent interaction with that environment helps illustrate the interplay between a nursing home’s need to receive payment for the services it provides to remain viable and continue to serve the community and the obligation of residents to pay their lawful share for those services. One year ago, my elderly mother had what the doctors described as a “mini-stroke.” Already suffering from dementia, she spent a month in rehab and then came home to continue living with my father. We hired aides to help them out and keep my mother from falling; my siblings and I took turns coming over in the evening to bring our parents dinner and make sure that my mother took her medications. Just after Thanksgiving, my mother fell and broke her hip. After surgery, she again went to rehab, but was in appreciably worse shape than she had been before. The plan was to have aides in the house 24 hours a day to help both of our parents (which was very costly and not covered by Medicare or Medicaid). Then, when my mother was scheduled to come home, we learned that my father was dying. We brought my mother home with aides on duty 24/7, but my father quickly deteriorated and died about a month ago. Our thoughts turned to placing our mother in a skilled nursing facility (a nursing home) so that she could live in a safe environment and eliminate the high cost of in-home aides. From our discussions with various facilities, we understood that we would have to use my mother’s assets and income (to the extent they were not exempt for Medicaid purposes) to pay the monthly charges for her care at the “private pay” rate, and that once those assets were spent, she would become eligible for Medicaid. Most nursing homes accept Medicaid. However, a resident must meet the financial eligibility requirements to receive Medicaid for skilled nursing services. In other words, because Medicaid is intended for low-income persons only, a resident with non-exempt assets and income must first use those assets and that income to pay for their care until they meet the financial threshold for eligibility for Medicaid benefits. When someone applies for admission to a nursing home, they must disclose the assets and income available to pay for their care (until such time they become eligible for Medicaid), and they must agree to use those assets and income for that purpose. If, as in my family’s situation, the resident lacks capacity to contract, a responsible party, who is often the resident’s attorney-in-fact under the resident’s power of attorney, is asked to sign the admission agreement. In most admission agreements, the responsible party agrees that they have access to and control over the resident’s disclosed financial resources, and that they will use those financial resources to pay the nursing home for the care provided to the resident. Although no facility may require a responsible party to guarantee payment for the resident’s care out of the responsible party’s assets, both federal and New York State law expressly authorize agreements that bind a responsible party who agrees to use the resident’s disclosed financial resources to pay for the resident’s care. In most circumstances, the responsible party abides by their agreement to use the resident’s financial resources to pay for the resident’s care. However, there are occasions in which the responsible party transfers some or all of the resident’s assets to themselves or diverts the resident’s financial resources to some other purpose rather than using those resources to pay for the resident’s care, or refuses to use the resident’s income (such as Social Security benefits) to cover part of the cost of that care. If a responsible party engages in such conduct, they are, at minimum, in technical breach of the admission agreement. When that happens, the nursing home is put in a situation where it is providing the resident with the agreed care without any compensation and must try to convince the responsible party to honor the promise to use the resident’s financial resources to pay for that care. When such efforts are unsuccessful, the nursing home may commence a lawsuit against the responsible party to recover the agreed charges. The complaint in such an action may assert, among other claims, causes of action for breach of contract and under the New York Debtor and Creditor Law (“NYDCL”). In these circumstances, a breach of contract claim is fairly straightforward: the responsible party breached their agreement to use the resident’s financial resources to pay for the resident’s care, and the nursing home incurred damages as a result. Generally speaking, claims under the NYDCL may include claims based on statutory language that defines a conveyance of assets with the actual intent to defraud a creditor as fraudulent, and/or claims based on statutory language that defines a conveyance that does or will render a person insolvent as fraudulent as to creditors, without regard to actual intent, if the conveyance is made without a fair consideration. The New York Appellate Courts, including the Fourth Department, that have addressed the enforceability of admission agreements against responsible parties have held that a party responsible for the assets of a nursing home resident may be held personally liable for the cost of the resident’s care if it is shown that they breached the terms of an agreement with a nursing home by impeding the nursing home from collecting its fees from the resident’s funds or resources over which they exercised control. Moreover, the Fourth Department has held that claims under the NYDCL may be stated against an attorney-in-fact who has rendered a nursing home resident insolvent through uncompensated transfers. Thomas F. Knab is Managing Partner and Chair of the Firm’s Litigation Practice Group. He focuses his practice on commercial litigation, business and corporate disputes, and construction and real estate litigation. Tom can be reached here or call 716.847.9104. Reprinted with permission from The Daily Record and available as a PDF file here.

Congratulations to Patrick L. Cusato for being selected to The Daily Record's 2023 Power 20 Real Estate 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 clients navigate complex transaction processes to help fulfill their personal dreams or organizational goals. Their job has been made even more difficult over the past two years. At the same time as the COVID-19 pandemic was changing the way the entire real estate transaction process worked, the real estate market was getting turned on its head. These attorneys continued to serve their clients admirably while navigating new ways of doing business thanks to restrictions that limited or halted face-to-face meetings," stated Ben Jacobs, Associate Publisher and Editor of The Daily Record. Cusato, Partner, and Chair of the Real Estate & Finance practice group and a member of the Firm’s Executive Committee, focuses his practice on commercial and residential real estate, mortgage banking, and tax credit finance law. Pat is past President and an Executive Board member of the Mortgage Bankers Association of the Genesee Region, an Executive Board member of Bishop Sheen Ecumenical Housing Foundation, and past Chair of the Monroe County Bar Association Real Estate Section.

In January, Governor Kathy Hochul proposed the New York Housing Compact, which includes a series of proposals to address the purportedly low housing selection across New York. The New York Housing Compact aims to complement the Governor’s Housing Plan announced last year to create or preserve 100,000 affordable homes throughout New York. Additionally, several bills sit in the New York State Senate to address housing shortages across the State. The New York Housing Compact proposals are broad and include subsidies for localities to fund infrastructure, mandate minimum housing growth targets for municipalities, rezoning areas near train stations, facilitating housing approval at the State level when localities are unable to meet targets, removing obstacles to housing approvals, and expanding tax incentives and assistance to renters. Subsidies to Fund Infrastructure The New York Housing Compact will create an Infrastructure Fund of $250 million and a Planning Fund of $20 million to encourage new housing throughout the State. Localities may submit requests for subsidies to further Transit-Oriented Development or Preferred Actions, or good-faith measures to increase housing availability. Housing Growth Targets The New York Housing Compact will also require all cities, towns, and villages to create new homes on a three-year basis. New York City is required to meet a 3% growth rate over three years, while upstate municipalities must achieve 1% growth in new homes every three years. The creation of new housing counts toward the target, with extra weight assigned to the creation of affordable units. Municipalities are vested with the power to decide how to meet the targets, but those that do not meet targets may still achieve a Safe Harbor status for one three-year cycle by employing good-faith Preferred Actions, which create capacity to achieve the housing growth targets. Preferred actions may include new housing, particularly below-market rate, income-restricted affordable housing. Transit-Oriented Development and Rezoning Near Train Stations According to the fact sheet from the Governor’s office, the New York Housing Compact will also require localities that have rail stations operated by the MTA “to undertake a local rezoning or higher density multifamily development within half a mile of the station unless they already meet the density level.” The aim is to improve access to jobs through transit. State Override of Local Zoning Laws Governor Hochul derided local governments for their zoning restrictions at her State of the State address in January. To combat this, the New York Housing Compact provides that if a municipality does not remove zoning restrictions which impede new development, and the locality fails to meet its growth target or does not implement Preferred Actions, developers may circumvent the municipality and seek approval via the courts or the newly conceived State Housing Approval Board. Based on the press release from the Governor’s office, projects will be approved by the Board “unless a locality can demonstrate a valid health or safety reason for denying the application.” Many municipalities have interpreted this to mean that developments will be permitted absent any exigent circumstances. Practically speaking, localities will be forced to allow developments that do not conform with current local zoning laws, which could create developments that do not match with the character of existing neighborhoods and may run contrary to a comprehensive plan, may pose issues for code enforcement, and could set precedent the locality sought to avoid. Relief from Environmental Review Relief from environmental review is included in the housing growth and transit-oriented development proposals in the New York Housing Compact, although the State has indicated that it remains committed to exercising safeguards to prevent harm to the environment and public health. Tax Incentives for Developers The Governor intends to allocate $5 million in State Low Income Housing Tax credits to foster development of affordable housing. The New York Housing Compact includes several tax incentives to encourage housing development throughout the State, such as new property tax exemptions for mixed income housing development near train stations and affordable housing in commercial buildings that are converted to residential use in New York City. Further, the Governor plans to unveil a new 421-a property tax exemption program that would provide an exemption to real-estate developers for building new multifamily residential housing buildings in New York City. Support for Homeowners The New York Housing Compact includes plans to update property tax exemptions for homeowners that build accessory dwelling units and includes proposed changes to prevent penalizing municipalities who use Payment-in-Lieu-of-Taxes (PILOT) agreements with tax cap calculation. Governor Hochul has also disclosed two new proposals to assist renters and homeowners. The first is a fund modeled after the Buffalo East Homeownership Assistance Program to aid homeowners with repairs in targeted areas that have been identified as having high levels of homeowner distress or low-income homeowners of color. Next, the Governor has proposed increasing funding and presence for the State’s Tenant Protection Unit (TPU). The TPU acts as a proactive law enforcement office within New York State Homes and Community Renewal. Its purpose is twofold: preserving affordable housing by discouraging patterns and practices of landlord fraud and harassment; and encouraging compliance by keeping tenants informed of their rights and responsibilities under the rent regulation laws. The expansion of the TPU is aimed to benefit mobile home residents, as well as those living in farmworker housing. Additional Housing and Zoning Proposals Before the Legislature Three bills currently sit before committee in the New York State Senate. Senate Bill S7574, would amend General City and Village Laws by preventing cities from establishing various zoning requirements, including a minimum lot size of more than 1,200 square feet, requiring off-street parking as a condition for construction of a building (except for the loading of deliveries), and prohibiting construction and occupation of a building for four or fewer families in a single lot, imposing height or setback restrictions, or prohibiting the construction and occupation of a dwelling for six or fewer families on a single lot for those dwelling near a rail or subway station operated by the MTA. Bill S7574 would also amend Town Law to prevent towns from establishing a minimum lot size of more than 5,000 square feet if a lot has access to sewer and water or a minimum lot size of more than 20,000 square feet in any area. Senate Bill S4547A, amends the Real Property Law to legalize accessory dwelling units (ADUs) throughout the State, including existing basement apartments, in-law suites, and backyard cottages. The bill also includes a mechanism for a party who has been denied a permit for an ADU to appeal the denial in a court of competent jurisdiction. Senate Bill S7635A amends the Public Housing Law by streamlining the permit application process for low- or moderate-income housing developments. It also requires municipal Zoning Boards of Appeals to approve applications for low- or moderate-income housing unless written findings show that the proposed development would have a specific, adverse impact on public health or safety, and there is no feasible manner to mitigate or avoid such adverse impact. If applications are still denied or are granted with conditions by a local Zoning Board of Appeals, applicants may appeal to the State Board. Change is certainly afoot throughout the State to address housing shortages. However, what remains to be seen is the long-term effect it will have on municipalities and their communities at large. Ericka B. Elliott, an Associate in our Litigation and Municipal Law Practice Groups, focuses her practice on commercial litigation, land-use, and municipal law matters. If you have any questions regarding this article, please contact Ericka here or call 585.258.2800. Reprinted with permission from The Daily Record and available as a PDF file here.

Effective February 9, 2023, upon execution by Governor Hochul, the New York State Warehouse Worker Protection Act requires New York employers who have at least 100 employees in a single warehouse, or 500 employees statewide, to provide written notice to their employees of any production quotas. Employers subject to the new law also must be sure the quotas reflect employees taking reasonable rest periods and bathroom breaks and must comply with all other local, state, and federal health and safety laws. Employers subject to the new law would be wise to have all the relevant quota and safety information (including any possible discipline/coaching related to missing quotas) in the job description signed by the employee, in addition to on a separate notice posted where all the other labor and employment law notices are on display. Employers also must notify their employees in writing how the quotas were developed (e.g., long experience, that they are reasonable, industry benchmarking, etc.). While this law was purportedly aimed at Amazon and similar entities, it applies to any company with the requisite number of employees and given that it was premised on data showing increased injuries in workplaces with quotas, Department of Labor enforcement is likely. If you have any questions regarding this new law, or any other labor or employment law topic, please call Paul F. Keneally at (585) 258-2882 or email Paul here. To have these legal alerts sent straight to your email, click here to subscribe.

On February 21, 2023, the National Labor Relations Board (“NLRB”) issued a decision that may significantly alter the use of confidentiality and non-disparagement provisions in severance agreements. The decision – McLaren Macomb, 372 NLRB No. 58 (2023) – reverses the standing precedent surrounding severance agreements and calls into question some well-worn clauses favored by employers that enter into such agreements with exiting employees. In McLaren, the NLRB examined whether an employer’s offering of severance agreements to several of its employees who had been permanently furloughed as a result of the COVID-19 pandemic infringed upon those employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), itself a violation of Section 8(a)(1) of the same. Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA. Generally, confidentiality and non-disparagement provisions prohibit employees from disclosing the terms of their severance agreements to third parties and from making statements that could disparage or harm the image of the employer. The severance agreements in McLaren contained terms familiar to many employers and specifically provided: Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction. Non-Disclosure. At all times hereafter, the Employee promises and agrees not to disclose information, knowledge or materials of a confidential, privileged, or proprietary nature of which the Employee has or had knowledge of, or involvement with, by reason of the Employee’s employment. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents and representatives. In analyzing the language of these provisions under the NLRA, and relying on certain prior precedent, the NLRB held that “a severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, and that employers’ proffer of such agreements to employees is unlawful.” While the NLRB’s ruling this week could be appealed, the ruling is effective immediately. Employers should consider the McLaren decision when drafting and negotiating severance and other employment agreements. If you have any questions regarding this article, or how to determine if your severance agreement is legally compliant, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this article, here, or at (585) 258-2865. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

U&K attorneys Paul Keneally, Jennifer Shoemaker, and Ryan Biesenbach spoke to a sold-out crowd recently at the 2023 Legal Update, co-hosted by the Genesee Valley Chapter of SHRM and the National Human Resource Association (NHRA) - Rochester Affiliate. This signature event was attended by hundreds of human resources professionals from across the region interested in legal issues and trends impacting the HR landscape. Their presentation, “Protecting Your Company from Sexual Harassment Liability in New York Post-2019,” provided background on NYS’s sexual harassment prevention program, how to interpret the latest definition of sexual harassment, how to identify when a sexual harassment investigation is warranted, and more. The Labor & Employment team at Underberg & Kessler helps employers stay out of the courtroom, avoid costly lawsuits, and create a more congenial and stable workplace. They provide in-person training on a variety of important labor and employment topics as well as on-demand video training to comply with NYS’s sexual harassment prevention requirements.

We are happy to join Cancer Support Community at Gilda’s Club Rochester to present a virtual program on Wills, trusts, and estate planning as part of their educational series. Please join U&K’s Joshua B. Beisker on February 21st at 6:00 pm as he discusses powers of attorney, health care proxies, living Wills, and more. Registration is required for this free Zoom presentation. Visit cscrochester.org/event/wills-and-trusts/ for more information and to register.

To avoid the annoyance of troublesome processes and procedures, people and businesses sometimes choose to make decisions based on convenience. For some, convenience comes in the form of quick grants of authority to another for one-off business-related tasks. When authorization to act on another’s behalf is given, the one who receives the authority is called an “agent” and the one who gives the authority is deemed a “principle.” It is crucial that a principle is clear when granting agency authority. If an agent’s scope of authority is not specifically communicated to the agent, or to those with which the agent will interact on behalf of the principle, an agent could act in a manner that injures another, whether physically or financially, and the principle could be called to answer to the injured party. The authority given in an agency relationship can take many forms, including express and apparent. Express authority is the power of an agent to act on behalf of a principle as is expressly granted by the principle through clear communications. This form of authority focuses on the particularities of a principle’s explicit permissions and prohibitions. If not careful, a principle could mistakenly believe it has given express authority for a task without considering how vagueness in the described scope of authority could grant more than intended. This lapse can result in an increase in the intended authority of the agent and can be the grounds for a lawsuit based on apparent authority. Apparent authority is the power of an agent to act on behalf of a principle, even if such authority is not expressly granted. This form of authority only exists if a third party reasonably infers, from the principle’s conduct, that the principle granted such authority. Below are two scenarios that show how business decisions based on convenience can turn out to be inconvenient: Scenario 1: Real Property Jessica and Jon are friends. Jon is in the business of buying and selling rental properties. Jessica is in the market for a vacation home and finds a beautiful lakefront property, but she does not want to hire a professional to assist with the closing. Instead, knowing Jon’s background and experience with buying properties, Jessica decides it is more convenient to ask Jon to help her close on the property. So, Jessica texts Jon “I need to purchase this property ASAP! Can you help me secure the necessary financing? I do not care what the financing terms are so long as they’re reasonable.” Jon agrees to assist Jessica and calls a friend, Beatrice, to ask for the necessary financing. Jon explains that he is calling on behalf of Jessica and negotiates financing terms with Beatrice. Beatrice and Jon finalize a written agreement, and one of the terms is that Beatrice is to have access to and personal use of the vacation home every other summer. Beatrice gives Jon the money and a copy of the agreement. Jon gives Jessica the money and the agreement, but Jessica decides not to review the agreement and uses the money to close on the property. On closing day, Jessica calls Beatrice to thank her, stating “Thank you, Beatrice. You drive a hard bargain, but I am glad we could come to a reasonable agreement.” A year later, Beatrice calls Jessica to schedule her use of the lakefront property, but Jessica refuses to give Beatrice access. Tip to Avoid Litigation: Beatrice is likely to sue Jessica for breach of contract, requesting a court to order Jessica to provide Beatrice access to the property. To support her claim, Beatrice could allege that Jon had the express authority to secure the necessary financing and, given Jessica’s phone call to Beatrice on closing day, had apparent authority to accept the terms of her financing offer. To avoid this kind of litigation, Jessica should have specified that Jon only had authority to assist her in securing financing from a bank or prohibited him from signing any agreement on her behalf. If Jessica had explicitly limited Jon’s authority, Beatrice’s claim would be moot. Scenario 2: Service Contracts Joseph is the new owner of his first business, his father’s café, which his father owned and ran for 15 years. Until Joseph understands how to properly operate and manage the business, he authorizes his father to continue to manage the ordering and stocking of materials and supplies for the café. With this authority, Joseph’s father engages RENTS, a rental company he used when he first opened the café. On behalf of the café, Joseph’s father executes a two-year service agreement, engaging RENTS to deliver supplies and materials to the café. Joseph, busy learning how to manage the business, does not know that a contract was signed, but he has talked with RENTS employees and managers whenever he was at the café during a delivery. Eight months later, following a disagreement related to services, Joseph’s father stops paying the rental company. Tip to Avoid Litigation: RENTS is likely to sue the café for breach of contract, requesting the court to order the café to pay the rental company for the remaining term of the contract. To support its claim, the rental company could argue that Joseph’s father had express authority to manage the ordering of supplies and materials and, given Joseph’s awareness that RENTS was providing services to the café, also had apparent authority to execute the agreement. To avoid this kind of litigation, Joseph could have explicitly limited his father’s authority by prohibiting his father from signing contracts on behalf of the company. When granting agency authority, be mindful of exactly what it is you would like accomplished and how clearly to describe your request to reduce the risk of litigation and the unintended cost of convenience. Katherine T. McCarley, Associate in our Litigation practice group, focuses her practice in the areas of civil and commercial litigation, defending institutional and small businesses. If you have any questions regarding this article, please contact Katherine here or call 585.258.2800. Reprinted with permission from The Daily Record and available as a PDF file here .

We are excited to announce that our Buffalo office is now located at 285 Delaware Avenue, Suite 118, Buffalo, NY 14202. Our phone number remains the same at 716.848.9000. In Buffalo's Central Business District between W. Chippewa and W. Tupper Streets, we are close to Main Street and within walking distance to Buffalo's Theater, Government, and Entertainment Districts, and the Metro Rail Station. When visiting our new location, you will find available parking directly on Delaware Avenue or at any number of public parking locales nearest to our building. Our offices are located on the first floor in Suite 118.

Congratulations to Leah Tarantino Cintineo and Jennifer A. Shoemaker for being selected to The Daily Record's Power 20 Family Law 2023 list. 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 navigate some of the most challenging times in their lives. They guide people through divorce, child custody and support, adoption, prenups and postnups, and more. The need for strong legal advocacy has been heightened over the past three years as COVID-19 has added even more stress and uncertainty to processes that were already full of both. These attorneys continued to serve their clients admirably while navigating new rules resulting from the pandemic," stated Ben Jacobs, Associate Publisher and Editor of The Daily Record. Cintineo, Partner and Chair of the Family Law practice group, guides clients through divorce, post-divorce matters, negotiating pre-nuptial agreements, high conflict child custody litigation, and child support litigation. She serves on the Attorneys for Children panel for the Appellate Division, Fourth Department, and is certified as a collaborative divorce attorney. She is a member of the Collaborative Law Association of the Rochester Area (CLARA). In addition, Cintineo is President of the Board of Directors of the Society for the Protection and Care of Children and President of the Ontario County Bar Association. She is a member of the Monroe County Bar Association Family Law Section. Shoemaker, Partner in the Family Law practice group, represents clients across the spectrum of family law issues, including divorce, custody, support actions, the negotiation of separation agreements, adoptions, and prenuptial agreements. She is certified as a mediator, a collaborative divorce attorney and is a member of CLARA. Shoemaker is a member of the New York State, Monroe County, and Wayne County Bar Associations. She serves as President of the Board of Directors of Camp Stella Maris and is a member of the ARC of Monroe Board of Directors.

There are a myriad of benefits for an employer in establishing and disseminating key job-related information such as personnel policies, working conditions, and behavioral expectations (simply put, an employee handbook). Often, however, the main reason for an employer to maintain a compilation of policies is to maintain compliance with the law. Heading into February, we write to remind those charged with keeping employee handbooks and other workplace policies current that it’s not too late (and never is) to amend those guidelines and procedures required by New York State and federal authorities. Indeed, a number of laws were enacted late last year that either have or will soon go into effect. This article is meant to give a brief and inexhaustive overview of several areas where your employee handbook may need some revisions. For example, language in policies concerning or related to leave procedures will need to be revised in cases where employers assess any form of discipline to employees (such as making deductions from separate timebanks, making them ineligible for promotion or a loss of pay) because an employee used a legally protected form of absence (such as Family and Medical Leave Act, New York State Paid Family Leave (“PFL”), New York Sick/Safe Leave, COVID-19 Sick Leave, etc.). Signed into legislation by Governor Hochul on November 21, 2022 (see NY State Senate Bill S1958A), and effective February 19, 2023, this new provision amends Section 215 of the New York Labor Law and, practically, adds an additional layer of job-protection to employees taking one of many forms of federal, state, or local leave entitlement by making employer adverse action to such an employee unlawful. Already in effect (beginning January 1, 2023) are the amendments to PFL (see NY State Senate Bill S2928A) that, inter alia, expand current legislation to allow employees paid time away from work to care for a sibling with a serious health condition. Prior to this addition, the “family members” covered under the statute extended only to spouses, domestic partners, children and step-children, parents, parents-in-law, grandparents, and grandchildren with a serious health condition. For avoidance of doubt, included within “siblings” are biological siblings, adopted siblings, step-siblings, and half-siblings (who can live outside of New York State or even outside of the country). All language in PFL policies should be revised wherever found to advise employees of this updated definition. As we’ve already covered in an earlier article, clarifications and expansions to the scope of current regulations for employees expressing breastmilk (see NY State Senate Bill S4844B) will require employers to make all reasonable efforts to provide a private area – that is not a restroom – and in close proximity to the employee’s work area for up to three (3) years following an employee returning from the birth of a child “each time such employee has a reasonable need” to express breast milk. Although not effective until June 7, 2023, certain of these requirements could mean preparations beyond revisions to policies. These are, of course, only a sliver of the policies required of employers in most New York workplaces which should be included in employee handbooks. If you have any questions regarding this article, or how to inquire if your workplace is legally compliant, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here, or at (585) 258-2865. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.