Underberg & Kessler is proud to share that our managing partner, Thomas F. Knab, was chosen to be on The Rochester Business Journal’s Power 50 Law list! “The people on this list help make sure the legal needs of Rochester’s companies and residents are met, and they have helped limit the disruption the COVID-19 pandemic has caused. They are working to push the Rochester legal community forward during a time of uncertainty and change, and we are excited to see what they are able to accomplish going forward.” For more on this recognition, click HERE.

In a new law just enacted in New York, and effective immediately, employers must now have all the familiar labor and employment law notices that currently must be posted in a conspicuous area of the workplace also available electronically. The notices may be on the employer’s website or portal or available by email. The number of notices that now must be posted and available electronically is large just considering the New York ones (see here), and the new law also encompasses federal notices (including labor, employment and other areas of law). As noted, the law has already taken effect, and employers should notify employees as soon as possible where the notices are available electronically. The law does not address those employers that do not utilize websites, portals, or email much or at all. All employers should consult with their labor and employment counsel regarding compliance with this new law. If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul F. Keneally, the author of this piece, here or at (585) 258-2882.

On December 9, 2022, Governor Hochul signed a bill into law amending New York’s Labor Laws by expanding required accommodations for breastfeeding in the workplace. Currently, Section 206-c of the New York Labor Law requires private sector employers to provide reasonable unpaid break times “each day” to allow nursing employees to pump breast milk for a period of up to three years following the birth of the nursing child. The Labor Law also requires employers to make reasonable efforts to provide nursing employees with a physical location where they can express milk in privacy. The amendments specify that employers shall provide a nursing employee with a reasonable break “each time such employee has a reasonable need” to express breast milk. The law mandates these breaks to last at least twenty minutes every three hours, although more time must be allowed if needed. Further, the law makes it clear that the room or private location cannot be a restroom and must be close to the employee’s work area, shielded from other individuals’ view, and free from intrusion from other employees or the public. The location must also, at a minimum: Contain sufficient lighting Have a chair Have an open surface Be close to clean running water At least one available electrical outlet, if the room is supplied with electricity Employers with refrigerators are required to allow their use for storing breast milk If an employer does not have a permanent area, the law states that the employer must make available a particular room or other private location on a temporary basis when the need arises for an employee to express breast milk. The employer must then notify all employees when the room or location is being used for such purposes. Employers that are unable to meet these requirements are not excused and must still make “reasonable efforts” to provide a private area that is not a restroom near the employee’s work area. The law also states that the NYSDOL will develop a model policy setting forth the rights of nursing employees, and employers will be required to provide the policy (or their own that complies with the law) to each employee upon hiring and annually thereafter. Employees who return to work following the birth of a child must also be given a copy of the NYSDOL’s written policy. If you have any questions regarding this article, 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.

As the COVID pandemic wanes, the EEOC has repeatedly updated its guidance on COVID testing by an employer. In its latest version from earlier this month, the EEOC advised that viral testing should be more limited and based on a business necessity analysis. This analysis will include current pandemic circumstances and individual workplace circumstances. Then, the viral testing must be “job-related and consistent with business necessity.” Specifically, the EEOC offered seven factors to analyze the “business necessity” conclusion: How an employee in the workplace with COVID would affect operations; How much such an employee would have contact with fellow employees and/or others (particularly those at high risk) in the workplace; The possible severity of illness from, and ease of transmission of, the current variant; How likely those with current booster shots are likely to have breakthrough cases; How quick and reliable different types of viral COVID tests are; What percentage of employees are vaccinated and boosted; and The community transmission level. The EEOC also weighed in on applicant testing and is far more encouraging towards it. For on-site applicants during the pre-offer period, COVID screening tests (viral test, temperature check, etc.) are permissible as long as all in that category are tested. Similarly, COVID screening after a conditional job offer is made is also acceptable if done for everyone in the same position. Given how unique each employment situation is and how rapidly the law is still changing about COVID, it is best to review testing policies with experienced employment law counsel. If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul F. Keneally, the author of this piece, here or at (585) 258-2882.

Underberg & Kessler LLP is proud to share that our Managing Partner, Thomas F. Knab, was chosen to be on The Daily Record's Power 20 list for Litigation in 2022! "The people on this list help their clients resolve complex legal matters that often have dire consequences for their financial well-being, whether the client is a business or an individual. These attorneys have also advocated for their clients during a time of unprecedented disruption due to the COVID-19 pandemic, social unrest and more. They have had to navigate new rules from federal and state government and the court system and have had to embrace new ways of practicing law." For more on this recognition, client HERE.

The 2022 elections are just over two weeks away on November 8, 2022. Employers across NY are again required to comply with Section 3-110 of the New York State Election Law. This law mandates that employees (who are also registered voters) may take to two (2) hours off in order to vote while receiving their regular rate of pay to do so if: the time off occurs at the beginning or end of the employee’s working shift (or as otherwise mutually agreed); the employee does not have four (4) consecutive hours either between the opening of polls and the beginning of their working shift or the end of their shift and the closing of polls (with which they will be considered to have had “sufficient time” to vote); and the employee notifies their employer at least two (2) working days before the day of the election that they require time off to vote. This law also requires that at least ten (10) days before the election – this year, October 29, 2022 – employers post notice of these requirements. A compliant notice will contain the following information: 1. A registered voter may, without loss of pay for up to two (2) hours, take off so much working time as will enable them to vote at any election. 2. The employee shall be allowed time off for voting only at the beginning or end of his or her working shift, as the employer may designate, unless otherwise mutually agreed. 3. If the employee requires working time off to vote the employee shall notify their employer not less than two (2) working days before the day of the election that they require time off to vote in accordance with the provisions of this section. 4. Not less than ten (10) working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provision of his section. Such notice shall be kept posted until the close of the polls on election day. If you have any questions regarding this article, 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.

The New York State Sexual Harassment Complaint Hotline (toll-free 1.800.427.2773), authorized by law in early 2022, is now open and being operated confidentially by the New York State Division of Human Rights (part of the New York State Department of Labor). Employers, therefore, should add the number to their sexual harassment prevention notices posted in their workplaces and to their sexual harassment prevention policies, and discuss it in sexual harassment prevention training. More guidance on the topic is expected from the New York State Department of Labor. Counselors on the Hotline will assist callers in getting complaints filed for investigation and/or refer them to pro bono (volunteer) attorneys for legal advice. Callers will still be able to pursue their complaints through the Division of Human Rights process without the need for an attorney, and the pro bono attorneys on the Hotline are not permitted to solicit further representation of the callers. If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul F. Keneally, the author of this piece, here or at (585) 258-2882.

Underberg & Kessler LLP is proud to share that two attorneys were honored in The Daily Record and the Rochester Business Journal’s 2022 Legal Excellence Awards. Leah Tarantino Cintineo - 'Pro Bono Excellence' Serena M. Compitello - 'Up and Coming Attorney' "The 2022 Legal Excellence honorees demonstrate excellence, leadership and achievement in the legal profession. In addition, they also devote time and talent to the communities in which they live and work," said Suzanne Fischer-Huettner, senior group publisher of The Daily Record and Rochester Business Journal. "This year's Legal Excellence winners play a critical role in making their companies and clients successful. They are inspirational, and we are proud to honor them for their incredible accomplishments." Leah and Serena will be honored at the Legal Excellence Awards celebration on September 19th. For more on this, click HERE.

Underberg & Kessler is proud to share that our partner, Joshua B. Beisker was chosen to be on The Daily Record’s Power 20 Trusts & Estates Law list for 2022! “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 couple of years.” For more on this recognition, click HERE.

On August 12, the House of Representatives passed the Inflation Reduction Act. It was signed by President Biden on August 16. The bill is a scaled-back version of his proposed Build Back Better that was agreed to after West Virginia Senator Joe Manchin and Arizona Senator Krysten Sinema agreed to go along with the legislation, despite previous opposition to additional government spending while the country is facing inflation issues. The legislation is massive government spending of approximately $740 billion. The President and supporters are praising the legislation on numerous fronts and claiming it will do wonders for the country. The legislation has a number of major provisions, including the following: establishing a 15% corporate minimum tax; reforming prescription drug pricing; adding $80 billion to the Internal Revenue Service, including hiring 87,000 new IRS agents; extending subsidies for the Affordable Care Act; and numerous investments in climate change. Prior to analyzing the environmental provisions of the bill, it’s worth noting that an independent review by the Penn Wharton Budget Model indicates that there is low confidence that the legislation will have any impact on inflation. Similarly, the Congressional Budget Office (CBO) determined that it may not reduce inflation and may actually cause an increase. Hence, despite the timely name of the legislation, it seems ill-suited to reducing inflation that is impacting American citizens and businesses of all sizes. Instead, it serves as a useful vehicle to adopt Democratic policy priorities prior to the November mid-term election cycle, which is projected to bring a defeat in at least one house of Congress. The legislation will spend approximately $370 billion on energy security and climate change over the next decade as it aims to reduce greenhouse gas emissions by roughly 40% of the 2005 levels prior to 2030. While it is less costly than the New Green Deal, it is on that path, but with a few less restrictions on energy production due to opposition from Senator Manchin, whose home state of West Virginia is a major energy producer. Among other provisions, the legislation calls for expending $60 billion on manufacturing solar panels, batteries, and other clean energy technologies in the US. The bill includes $9 billion for low-income families to switch over to electrical power in their homes from fossil fuels. The legislation will spend billions on transportation, including $3 billion for the US Postal Service to switch over its 200,000-plus fleet to electric vehicles (EV), $3 billion to address air pollution technology at ports, and $1 billion for clean school and public transit buses, refuse trucks, and heavy equipment conversions. The legislation also continues the Biden Administration push for environmental justice by funding matters in impacted communities. Among other elements, it provides $3 billion in funding for community projects in areas that are disproportionately impacted by pollution and climate change. The bill re-institutes the Superfund tax on the US industry to fund pollution remediation projects. The bill provides a $7,500 per EV tax credit that runs through 2032. The tax credit also lifts the current cap on EVs sold by 200,000. Aside from new EV tax credits, there is a $4,000 tax credit available for used EVs if certain price and ownership levels are met. While the long-term tax credit is viewed as beneficial to the auto industry, the legislation includes restrictions on use of raw materials from adversaries, including China, for battery construction. Under the bill, to be eligible for the EV tax credit in 2023 around half of the battery components need to be manufactured or assembled in the US. Similarly, by 2024 over half of the critical minerals used in EV batteries will have to be extracted or processed in a country that the US has a free trade agreement with. The percentages increase to the point where in 2029 all battery components will have to be made or assembled in North America to qualify for the tax credits. The aggressive schedule for mining and manufacturing in North America is going to be very problematic for auto companies given the source, availability, and mining conglomerates that currently control the process. As we have reported on previously, many of these companies are owned or controlled by aggressive and unfriendly nations, such as China. The Biden Administration is setting up a webpage to address questions on which vehicles will qualify for the tax credits based on the location of assembly. The Department of Transportation is also publishing a list of eligible 2022 and 2023 EVs. However, the list is likely to be fluid and could be challenging in future years as the heightened requirements kick in. Also, some EV vehicles that were previously eligible but are foreign manufactured will not be eligible after the passage of the legislation. In order to reach an agreement with recalcitrant Senators, the legislation includes some compromises that are being opposed by environmental groups. Notably, the bill includes tax credits for carbon capture projects that may extend the life of existing coal plants. The bill also requires the government to offer oil and gas leases in the Gulf of Mexico and Alaskan waters. Pursuant to a separate bill that is thought to move in Congress in September, there is supposed to be permitting reform to address delays and issues with the review of major projects under the National Environmental Policy Act (NEPA). The Biden Administration halted Trump-era changes intended to make the process more efficient. While energy permitting reform was a condition set by Senator Manchin, some recent reports indicate that his Democratic colleagues in the House are not inclined to honor that condition now that the climate bill has passed. Adoption of the Inflation Reduction Act is being lauded by numerous environmental groups. Business and energy groups are less pleased, noting the marginal impact on inflation reduction and massive spending on Biden Administration pet projects in the green energy area. Rather than an industry-wide approach of encouraging the production of clean energy from the US across all energy markets, the legislation seems to focus on one area without support for boosting national energy supplies during a time of historic inflation and international challenges. For additional information about the issues discussed above, or if you have any other Environmental Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or George S. Van Nest , the author of this piece, here or at (716) 847-9105.

Underberg & Kessler is proud to announce that 16 attorneys were selected by their peers for inclusion in The Best Lawyers in America®, 2023. One attorney was named “Lawyer of the Year” in their area of practice. ROCHESTER Patrick L. Cusato Real Estate Law David H. Fitch Litigation - Health Care Medical Malpractice Law - Defendants Steven R. Gersz Closely Held Companies and Family Businesses Law Corporate Law Kate H. Karl Banking and Finance Law Commercial Finance Law Commercial Transactions / UCC Law Real Estate Law Paul F. Keneally Commercial Litigation Labor Law - Management Litigation - Labor and Employment Anna E. Lynch Corporate Law Elder Law Health Care Law Edmund J. Russell III Banking and Finance Law Corporate Law Jennifer Shoemaker Civil Rights Law David M. Tang Health Care Law Litigation - Health Care Helen A. Zamboni Corporate Law Real Estate Law BUFFALO Timothy P. Johnson Real Estate Law Thomas F. Knab Litigation - Construction Litigation - Insurance Litigation - Labor and Employment Colin D. Ramsey Legal Malpractice Law - Defendants Litigation - Insurance George S. Van Nest Environmental Law CANANDAIGUA Margaret E. Somerset Medical Malpractice Law - Defendants GENESEO James A. Coniglio Municipal Law Katherine H. Karl is recognized by Best Lawyers in America® as a recipient of her “Lawyer of the Year” award 2022 for her work in Banking & Finance Law and Real Estate Law in Rochester, NY. Best Lawyers® conducts its annual peer-review survey where thousands of attorneys cast their votes on the legal abilities of other lawyers in various practice areas. To learn more about Best Lawyers in America®, click here.

All lawyers are bound by the ethical rules of the jurisdiction in which they practice and practicing ethically is an integral part of what it means to be a good attorney. One thing I learned about ethics after law school is that ethics in practice can be a bit different than ethics in the classroom. In a controlled setting, learning the limits and boundaries of client advocacy, communication, and negotiation is safe and, depending on your professor, fun. Ethics in real time, on the other hand, is serious business. As a newly admitted civil litigator, I have found it best to develop processes for all aspects of my job, especially client management. I commit myself to fully advocating for my clients, and always in an ethical manner. So, let’s take a moment to explore a few ethical client management techniques, and track those techniques against New York State’s Rules of Professional Conduct . 1. Understand Who the Client Is Techniques . Yes, an attorney should be able to identify his or her client. However, when an organizational client has multiple representatives or agents, the answer may not be so simple. Make sure to understand the who, what, when, where, and why of the client. For instance, you need to understand, as soon as possible, whether the client is cost conscious, has a personal or emotional connection to the matter, or can be flexible with the means used to accomplish the ends. This will help you understand the client’s goals of the representation, which will make client management easier. It will also enable you to develop creative and practical solutions. Rule of Professional Conduct to Keep in Mind : Rule 1.13 Rule 1.13(a) requires an attorney who represents an organization and deals with the organization’s representatives, agents, or employees, some of whom may have differing interests, to explain that he or she represents the company, not any of its constituents. Rule 1.13(b) requires an attorney to act within the best interest of his or her organizational client when that lawyer knows a person associated with the organization acted or intends to act in a manner that would result in either a violation of a legal obligation to the organization or a violation of a legal obligation that could be imputed to the organization, and such violation is likely to substantially injure the organization. 2. Trust But Verify…As Soon as Practicable Techniques . Due diligence and promptness are key to successfully managing a client’s goals and expectations. When assessing either the viability of a claim or the extent of a client’s liability, it is critical to do your due diligence – review all of the relevant documents, and not just the documents the client thinks will support its claims or defenses. Knowing what the documents say before commencing a lawsuit or preparing an answer to a complaint, and before having to gather documents responsive to the opposing party’s discovery requests, gives you ample time to analyze your client’s position before any representations of law or fact are conveyed to a third party or a court of law. Being prompt in requesting documents will help you avoid having to make corrections to previously submitted statements of law or fact and assures that prompt and accurate responses can be made to valid discovery demands. Remember, there are many reasons why a client’s (or a client’s employee’s) version of the facts may not be entirely accurate, and, more importantly, capable of being proved at trial through admissible evidence. Emotion, wishful thinking, an instinct for self-preservation, and the simple passage of time, to name just a few factors, could cause the versions of the relevant events offered by the client’s witnesses to be somewhat inaccurate or contrary to what the documentary evidence shows. So, it is always best to trust but verify. Rules of Professional Conduct to Keep in Mind : Rule 1.3, Rule 3.3, and Rule 4.1 Rule 1.3(a) requires an attorney to act with reasonable diligence and promptness in representing a client. Rule 3.3(a) states that an attorney may not knowingly make a false statement of fact or law to a court or fail to correct a false statement of material fact or law previously made to a court by an attorney. Similarly, Rule 4.1 states that an attorney must not knowingly make a false statement of fact or law while representing a client. 3. Communicate Efficiently and Effectively with Your Client Techniques . At the outset of the representation, make sure you and the client are clear on the scope of the representation. The scope should be defined in a retainer agreement, making sure to be clear about what tasks are and are not included and what events will bring about the end of your representation. Exercise caution and err on the side of more, and not less, explanation, and notify the client after each step of a proposed plan of action is completed. For example, if you speak with opposing counsel, file papers with the Court, or strategize with other attorneys within the firm, tell the client. You can limit updates based on the client’s preference, providing updates on a scheduled basis. For example, if it is not reasonable to update the client as soon as something happens in a matter, it may be reasonable to provide a weekly update, covering all actions taken on the file since the last update. Keeping the client informed in writing throughout the process ensures the client is knowledgeable about and has its own record of the matter. Be reasonable when communicating. Think to yourself, “If you were the client, would you want to know ’X’ happened?” Rule of Professional Conduct to Keep in Mind : Rule 1.10. Rule 1.10(a) requires an attorney to: communicate with the client promptly regarding settlement and pleas; consult with clients about how objectives are to be reached; inform the client of any limitations attached to the attorney’s ability to reach those objectives; keep the client informed about the status of its matter; and comply with a client’s reasonable requests for information. Rule 1.10(b) requires an attorney to explain a matter to the extent necessary for the client to make informed decisions about representation. Zealously representing your clients while also keeping those clients informed of your ethical obligations can sometimes be a challenge, especially if you are new to the practice of law. However, using techniques like those offered above can help to make sure you are representing your clients ethically. If you have questions about the above article or if you have any other Litigation concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley , the author of this article, at (585) 258-2820.