We have seen a great increase in questions from clients related to employees and their family members’ mental health issues, both pre-COVID and especially since then. These issues interplay with New York State sick/safe leave, the Americans with Disabilities Act (“ADA”), paid family leave, and the employers’ PTO/vacation and/or tardiness policies. Employers who have more than 50 employees within a 75-mile area for at least 20 or more work weeks in the previous or current year also must manage the Family and Medical Leave Act (“FMLA”) obligations towards an employee who needs time off because of mental health issues. The FMLA provides for up to 12 weeks per year of unpaid leave (though employers may require concurrent use of available PTO) for serious health conditions that require inpatient care or continuing treatment, including mental health ones. The employee on FMLA leave is entitled to the same health benefits while out as while working and must be returned to the same or virtually identical position upon return from FMLA leave. Given the increase of employee mental health issues implicating the FMLA, the federal Department of Labor (“DOL”) Wage & Hour Division released its “Mental Health Conditions and the FMLA Fact Sheet (#280) in May 2022. The Fact Sheet described the mental health inpatient care prong as requiring an overnight stay at a hospital or mental health facility and the continuing treatment prong as requiring 1) incapacitation for three consecutive days for ongoing medical treatment of multiple appointments or one appointment with follow-up care, or 2) chronic conditions requiring treatment from a health care provider at least twice a year. FMLA specifically permits intermittent use, meaning use when the employee is unable to work unexpectantly because of a mental health condition. The FMLA permits use for the care of an employee’s spouse, minor child, or parent who is unable to work or perform regular daily activities due to a mental health condition. Similarly, employees may use FMLA leave to care for an adult child with a mental health disability if the adult child is incapable of self-care. For practical purposes, many mental health conditions fit the definitions in the FMLA of serious health conditions and disability. Finally, the FMLA provides up to 26 work weeks of military caregiver leave per year to care for a servicemember and some veterans with serious mental health conditions. The employee must be the spouse, son, daughter, parent, or next of kin of the servicemember. The DOL also reiterated the FMLA’s requirement of confidentiality, including that any employee medical records be kept in separate files and protection from retaliation (prohibition on “interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.”) If you have any questions regarding this article, 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. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

On June 3, 2022, Senate Bill 9427A passed the New York State Legislature. Once delivered and signed into law by Governor Hochul, this Bill will amend the New York State Labor Law by adding new statewide requirements for employers of four (4) or more employees to include certain information in advertisements for job openings, promotions, or transfer opportunities. Specifically, the law would require advertisements to include: the job description for the role, if one exists; the compensation or a range of compensation for such role; and, if the role is paid solely on commission, a general statement to that effect. The law would define “range of compensation” to mean the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer “in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity.” The law would also create a record-keeping requirement, mandating employers maintain the history of compensation ranges and job descriptions for each position, to the extent they exist. Also included is an anti-retaliation provision prohibiting an employer from refusing to interview, hire, promote or employ an applicant or current employee for exercising any of the rights provided by the law. Violations are subject to investigation and prosecution by the NYSDOL with civil penalties ranging between $1,000 and $3,000, which increase upon repeat offenses. The law does not expressly create a private right of action. Senate Bill 9427A follows a broader trend in pay transparency laws that were enacted in Ithaca, New York City and Westchester County earlier this year. The law would take effect 270 days after Governor Hochul signs the Bill. 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 we have reported on previously, climate change policies have been a focus under the Biden Administration. Immediately after taking the oath of office, the President signed an Executive Order declaring climate change a crisis, initiated a number of climate-based actions, and halted construction of the Keystone XL pipeline. In the subsequent months, national and international pipeline and energy developments have caused increased scrutiny of that decision. While the Biden Administration continues to blame the war in Ukraine and Russia, petroleum and natural gas prices were increasing dramatically well before February 2022. At this point, with state and national gasoline prices setting new price records each week, one has to ask if President Biden sought to dramatically increase fossil fuel prices to force a transition to renewable energy by the US, what would he and his administrative agencies do differently? While the Biden Administration is frustrated by answering questions about the price of oil and gas, nobody seems to be doing anything to reduce regulation, spur development of domestic energy supplies, or decrease the pain being felt by American families and business. Regrettably, this situation seems in keeping with Joe Biden’s comments on the presidential campaign trail “I guarantee you we’re going to end fossil fuels.” The President was at a Tokyo press conference on May 23 and let the plan out, inadvertently, by stating “Here’s the situation, when it comes to the gas prices, we’re going through an incredible transition that is taking place, that God willing, when it’s over, we’ll be stronger, and the world will be stronger and less resilient on fossil fuels.” Unfortunately, Biden is not alone, his Interior Secretary Deb Haaland was recently before a Congressional hearing and repeatedly declined to say that gas prices are too high. Not to be outdone, last week Biden’s Special Presidential Envoy for Climate Change, John Kerry, when asked about the need for additional drilling in the US amid high gas prices said “No, we don’t, we absolutely don’t, and we have to prevent a false narrative from entering into.” At this point, the climate change that seems to permeate many facets of the Administration appears to have eliminated common fervor and reasonable decision-making for the benefit of American consumers and business. As of this column, the price of oil is about $120/barrel. Gas prices are at record highs with an average of $5/gallon, or about $100 per fuel up. The price of gas has now doubled since Biden took office in January 2021. J.P. Morgan analysts are predicting that gas will be over $6/gallon by August 2022. The cost of diesel fuel for transportation, industry, and farming is already well over $6/gallon. The impact of fuel costs has dramatically impacted shipping, food, manufacturing, farming, and every facet of American life. In response to these issues, Biden’s Energy Secretary Jennifer Granholm stated in a recent interview that high gas prices make “a very compelling case” for drivers to buy electric vehicles. Additionally, the Energy Secretary said that “[i]f you filled up your Electric Vehicle (EV), and you filled up your gas tank with gasoline, you save $60 per fill up [by going electric].” She was not alone, as Congresswoman Debbie Stabenow (D-MI) recently said it didn’t matter how high gas prices are because she drives an electric vehicle. The only fundamental problem with that is that EVs are essentially luxury vehicles unaffordable by most Americans. According to the US Census Bureau, the median household income is $67,521. According to Kelley Blue Book, the average cost of an EV is $56,437 or $10,000 more than the industry average cost of vehicles. In addition, as we have reported on in this column, there are serious infrastructure deficiencies with inadequate charging stations and electrical grid capacity if most drivers were to suddenly transition to EVs as the Energy Secretary seems to be suggesting. The Biden Administration has done virtually everything possible to restrict US domestic energy production and development. Those actions include: canceling the Keystone XL pipeline that would have provided 900,000 barrels of crude oil per day to US refineries; placing a moratorium on all new federal leasing; and slowing lease sales despite federal court decisions. Incredibly, the Administration has also not issued a new national plan for offshore drilling when the program is set to expire next month. The SEC recently issued a proposed rule that requires public companies to report on climate related risks and emissions. Simultaneously, the -Administration has pressured banks not to lend to the fossil fuel industry. At the same time, the President has blamed the oil industry for not producing more oil and reducing costs. On June 15, the President once again threatened oil companies, sending a letter to the major producers claiming that “[y]our companies and others have an opportunity to take immediate actions to increase the supply of gasoline, diesel, and other refined product you are producing. My Administration is prepared to use all reasonable and appropriate Federal Government tools and emergency authorities to increase refinery capacity and output in the near term and to ensure that every region of the country is appropriately supplied.” The letter seems aimed more at the 40-year high of inflation, which just hit 8.6% and is trending up, than producing meaningful results in the energy sector. The letter did not specify when or what the Administration would do via federal action. In response, an oil industry analyst, Patrick De Haan, penned a succinct Tweet about the situation--“White House begs oil companies to improve situation. Can we drill? We’d rather you not. Can we build a refinery? We’d rather you not. Can we build a pipeline? We’d rather you not. Just make it better.” Further to that point, Exxon Mobil issued a public statement in response to the President’s letter regarding the company’s investments. The statement noted that it has invested more than any other company to develop US oil and gas supplies. In particular, “[t]his includes investments in the US of more than $50 billion over the past five years, resulting in an almost 50% increase in our US production of oil during this period.” In addition, Exxon stated that around the globe it invested “double what we’ve earned over the past five years-- $118 billion of new oil and gas supplies to compared to net income of $55 billion.” The company also indicated that it has been investing in refinery capacity to process light crude. Finally, the statement noted that the “US government could enact measures often used in emergencies following hurricanes or other supply disruptions, such as waivers of the Jones Act provisions and some fuel specifications to increase supplies. Longer term, government can promote investment through clear and consistent policy that supports US resource development, such as regular and predictable lease sales, as well as streamlined regulatory approval and support for the infrastructure such as pipelines.” The lack of rationality of these anti-energy policies balanced with the Biden Administration’s attempted actions to reduce prices are striking. On a national security basis, the US is now reliant on international supplies for oil when it was energy independent under the Trump Administration. This includes Russia, Saudi Arabia, Iran, and Venezuela, all countries with dubious politics and no interest in helping the US reduce gas and oil prices. President Biden is headed to Saudi Arabia next month to plead with OPEC for greater energy production. Despite numerous contacts over recent months, OPEC’s production in May fell from prior months. Similarly, releases of oil from the US Strategic Petroleum Reserve, touted by the Administration in recent months, have had no lasting impact to reduce gas prices. In a time of international instability and the war in Ukraine, degrading the US reserves, which will have to be replaced at much higher costs, seems dubious and aimed at press releases rather than meaningful reduction in gas costs. In sharp contrast, on June 14 the American Petroleum Institute (API), introduced a plan called “10 in 2022” to increase US energy production. API’s President and CEO Mike Sommers noted that “America is blessed with abundant energy resources that are the envy of the world. Given today’s global unrest and economic uncertainty, American energy is a long-term strategic asset that can advance our national and economic security.” The plan is simple and aimed at boosting energy American energy supplies. API has proposed the following actions: 1) lift development restrictions on Federal lands and waters; 2) designate critical energy infrastructure projects; 3) fix the NEPA permitting process; 4) accelerate liquefied natural gas (LNG) exports and approve pending applications; 5) unlock investment and access to capital; 6) dismantle supply chain bottlenecks; 7) advance lower carbon energy tax provisions; 8) protect competition in the use of refining technologies; 9) end permitting obstruction on natural gas projects; and 10) advance the energy workforce of the future. Rather than issue a letter to the major oil and natural gas producers that the Administration will work with them to expand production and refinery capacity, President Biden chose to blame the energy industry. If he was serious about solutions, rather than casting blame on others than his Administration’s anti-fossil fuel policies, he would consider real changes to the regulatory and administrative burdens on the industry while keeping reasonable permitting and compliance in place. Unfortunately, what is good for US consumers and business is antithetical to the climate change activists that supported his run for President. With declining poll numbers and heightened consumer anger over gas prices, the Biden Administration seems intent on placing blame for energy costs rather than finding real, sustainable solutions. Although multiple Administration representatives were asked about the need for additional domestic oil drilling, all declined to support the effort. Nonetheless, the Biden Administration has failed to identify how threats to the oil industry will bend the economic laws of supply and demand. Consumers will know the Administration is interested in solutions when it starts to adopt reasonable regulatory schemes rather than stick with a version of the New Green Deal.

Underberg & Kessler is proud to share that our partner, Paul F. Keneally was chosen to be on The Daily Record’s Power 20 Labor & Employment Law list for 2022! “The people on this list help companies navigate countless employment challenges that can present difficulties even in the best of times. The last two years have been far from the best of times as COVID-19 has led to endlessly changing rules for employers of all sizes and in all industries. With barrages of updates at the federal, state and local levels, these attorneys had to provide new guidance to their clients constantly — sometimes multiple times in the same day. And while they were scrambling to stay abreast of the rules their clients had to follow, they were also adapting to new rules they had to follow in the practice of law.” For more on this recognition, click HERE.

Whenever discussing the law governing the payment of overtime to non-exempt employees, we must also discuss federal and state laws. Nowhere is this more important than when examining the minimum salary to be paid to various categories of employees for them to be exempt from overtime pay. The minimum annual salary administrative and executive employees are to be paid to be overtime exempt in the New York City area is $58,500 and $51,480 in the remainder of the state, which is greater than the current federal minimum of $35,568. Because New York has no separate minimum salary for professionals the $35,568 federal minimum rate governs. Accordingly, word from Washington D.C. is that the federal minimum salary for exemptions may change soon but it will not affect New York administrative and executive employees unless it rises above $51,480 (or above $58,500 for NYC area employees), which is not expected, any new federal minimum salary will apply to professional employees. Separately, employees must also have the applicable duties of the exemption category to be exempt from overtime. While less likely, it is possible that the duties tests will be modified. Citing the original intent of the overtime exemption rules, those pressing for modification of the exempt duties tests believe there has been too much emphasis on the minimum salaries. As always, employers should monitor the salaries and duties of their exempt employees while considering current law. If you have any questions regarding this article, 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. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

As we have reported previously in this column, American energy policy and the focus on climate change have taken a profound turn under the Biden Administration. Within hours after taking the oath of office, the President signed an Executive Order declaring climate change a crisis, initiated several climate-based actions, and halted construction of the Keystone XL pipeline. In the subsequent months, national and international pipeline and energy developments have led to increased scrutiny of that decision. While the war in Ukraine is being blamed by the Biden Administration, petroleum and natural gas prices were increasing dramatically well before February 2022. The “Executive Order on Protecting Public Health and the Environment and restoring Science to Tackle the Climate Crisis,” issued on January 20, 2021, was expansive and significantly impacted US environmental policy, businesses, and consumers. Among other things, the Executive Order stated that “[i]t is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; …to bolster resilience to the impacts of climate change.” In one of the most visible actions, the Executive Order revoked the March 2019 Presidential permit granted to Trans Canada Keystone Pipeline LP to construct the Keystone XL pipeline. On June 9, 2021, TC Energy Corporation, the pipeline developer, issued a statement that it was terminating the project after the Biden Executive Order. The pipeline, which began permitting under the Obama administration and received presidential approval from the Trump Administration, was slated to transfer over 800,000 barrels of Canadian oil a day from Alberta, through Montana, South Dakota, and Nebraska to US refineries on the Gulf Coast. The Order also placed a moratorium on federal oil and gas leases in the Arctic National Wildlife Refuge. A study by the American Petroleum Institute indicated that a long-term ban on federal energy leases will have major impacts. Notably, a reduction in US GDP of $700 billion by 2030, a loss of nearly 1 million jobs by 2022, and an increase of US oil imports from foreign sources by 2 million barrels a day by 2030. Similarly, natural gas exports from the US would decrease by up to 800 billion cubic feet by 2030. The projected increase in household energy costs of $19 billion by 2030. The Securities Exchange Commission (SEC) has also issued a proposed rule that requires public companies to report on climate related risks and emissions. The rule is being opposed by numerous Republicans, as well as the American Securities Association and Senator Manchin, on the basis that it is overly complex and will merely add uncertainty and costs to corporations that are compelled to report on emissions. President Biden’s actions have done virtually everything possible to limit the availability of domestic energy sources and increase the price of fuel. The Biden energy policies are being felt daily in fuel prices. In December 2020, the price of US gasoline averaged $2.30 per gallon and global crude oil prices were below $50 per barrel during most of 2020. According to AAA’s gas price index, the current national average fuel price is $4.08 per gallon (regular). In New York, the average cost of regular gas today is $4.20 per gallon. Likewise, the cost of diesel fuel for New York trucks and commercial transportation has increased from an average of $3.15 per gallon last year to $5.25 per gallon. In New York, gasoline has increased by approximately $1.31 per gallon and diesel by $2.10 per gallon in a year. Previously, the AAA index revealed that the highest recorded prices for regular gas ($4.30/gallon) and diesel ($5.13/gallon) both occurred in July and August 2008, under the Obama-Biden Administration. The Biden Administration has now topped those averages with the highest on record for unleaded hitting $4.46 per gallon and diesel hitting $5.35 per gallon in March 2022. Recent comments from the Biden Administration and newfound concerns about sky-rocketing gas prices, compounded by record 8.5 % inflation, seem dubious and unlikely to improve supplies of fuel. Three recent actions appear to be aimed at press conferences rather than improving energy prices and availability. The war in Ukraine has only added to escalating United States energy prices. The Biden Administration seems intent on taking rhetorical steps to blame Russia and energy companies rather than supporting and encouraging domestic energy production to prevent reliance on foreign sources, such as Russia and Iran, while reducing consumer energy prices. In March the Administration announced that it will be releasing one million gallons of petroleum per day from the United States Strategic Petroleum Reserve through the end of 2022. While it may briefly show awareness of consumer pain over fuel prices, critics have pointed out that it is a short-term step and petroleum reserves will need to be replaced at higher future prices. Similarly, the announcement that the Environmental Protection Agency (EPA) will issue a waiver in June so that E15 gasoline may be used over the summer appears to be dubious if not counter-productive. E15 is a blend of fuel with 15% ethanol, as opposed to standard fuel with 10% ethanol. Ethanol is made from corn and soybeans. EPA has generally restricted E15 from being used during the summer months from June 1 through September 15 to limit air pollution. The proposal to issue a waiver for summer-time use is likely to have little impact on fuel prices. There are an estimated 150,000 gas stations in the country and E15 is only sold at approximately 2,300 stations, so it is not readily available. Contrary to the Biden Administration’s suggestion that the waiver will reduce fuel prices by up to 10 cents per gallon, that position ignores the cost to produce ethanol from corn and soybeans. Due to the heightened cost of diesel fuel, agricultural costs are skyrocketing, so the production costs are higher, and placing more demand on corn and soybeans will likely impact other products as these materials are produced for fuel. Hence, the cost of corn and soybeans, as standalone products, as well as in cereals, snacks, and livestock feed made from them are likely to increase. Late last week the Biden Administration announced that it will resume leasing federal lands for oil and gas production. The announcement is a major policy shift. However, the actual leasing actions amount to little more than a press release. In particular, the Bureau of Land Management (BLM) leasing will only involve “approximately 193 parcels on roughly 144,000 acres, an 80% reduction from the acreage originally nominated for leasing.” The reduction in available acreage and increased lease rates to be imposed are significant limits on future energy production. Numerous green groups have been critical of the announcement, saying anything less than 100% renewable energy is unacceptable. Conversely, energy producers are highly skeptical. Notably, the Independent Petroleum Association of America said that “[t]his Administration has begged for more oil from foreign nations, blames American energy producers for price gouging and sitting on lease. Now, on a late holiday announcement, under pressure, it announces a lease sale with major royalty increases that will add uncertainty to drilling plans for years.” Further, “[t]o put it simply, America, under this administration, has no coherent energy policy.” The cumulative effect of the Biden Administration’s anti-energy policies has had a dramatic impact on consumers and businesses. The climate driven policies are also driving up the cost of electricity, heating oil, and natural gas. The cost of electricity went up 8%, heating oil increased by 43%, and natural gas prices increased by 61%. Recent studies have projected that American families will be impacted by inflation from $3,500 to $5,000 annually, with a large portion of the increased costs coming from fuel and energy prices. While the Biden Administration has blamed Russia’s invasion of Ukraine, as well as energy companies for high petroleum prices, the actions taken by the Administration since inauguration day in 2021 have done everything conceivable to increase the cost of fossil fuel use. Given the climate change activism underlying the Biden Administration’s view of governance, perhaps the high costs are viewed internally as useful if it forces American families and businesses to switch to electric vehicles and non-fossil fuel energy sources. 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.

The current version of the United States Citizenship and Immigration Services Employment Eligibility Verification form – commonly referred to as Form I-9 – is being revised. Since November 6, 1986, the Immigration Reform and Control Act has required employers to verify that all newly hired employees present facially valid documentation to verify their identity and legal authorization to accept employment in the United States. Form I-9 is the employer-mandated documentation to this verification. The current version of Form I-9 – which became effective January 31, 2020 – is set to expire on October 31, 2022. Although the proposed changes do not obviate the need for each new U.S. hire to complete Form I-9, they do simplify the process. The proposed changes to Form I-9 are currently open to public comment (here) and include: Reducing the page length of Form I-9 to reduce paper use; Streamlining the instructions and reducing them to seven (7) pages from fifteen (15); Eliminating the “N/A” requirement and allowing employers to keep fields blank that do not apply; Removing Section 3 – “Reverification and Rehires” – into a standalone, as-needed supplement; Removing electronic PDF enhancements to ensure that Form I-9 can be completed on all electronic devices; and Including a hyperlink to the categorized “List C” documents on the U.S. Citizenship and Immigration Services’ website. 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.

In 2019, New York State adopted several provisions that served to provide greater protection to workers against workplace sexual harassment. For the first time, independent contractors, vendors and consultants were covered by the sexual harassment laws to the same extent as employees. Further, the duty of employers to train their employees regarding sexual harassment prevention and implement and distribute specific policies against sexual harassment were strengthened. Last Wednesday, March 16, 2022, the State further enhanced the laws against sexual and other harassment at work when Governor Hochul signed three new bills into law. The first will establish a toll-free, confidential hotline administered by the New York State Division of Human Rights for workers to report complaints of sexual harassment to pro bono, experienced attorneys to be recruited for that work. The second revises current law to include releasing of an employee’s (or ex-employees) personnel records as a potential example of “retaliatory action” prohibited against those who have complained about unlawful workplace discrimination, including harassment. The third is directed to public employers who will no longer be able to claim that personal staff of officials or judges are not their employees. Now, the state or local municipality at issue will be deemed the direct employee of anyone working in the executive, judicial or legislative branches. As is typical, more specifics on these laws will be released (including, for example, a Department of Labor requirement that the sexual harassment hotline number be included in employer anti-sexual harassment policies), and other bills regarding discrimination and harassment prevention are also pending. If you have any questions regarding this article, 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. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

Many people understand their communications with their lawyers concerning legal matters are protected from disclosure by the attorney-client privilege. However, they may not be aware that the privilege also protects communications by one serving as an agent of either the attorney or the client. The attorney-client privilege is the oldest of the common-law evidentiary privileges (now codified by New York statute). Its purpose is to foster the open dialogue between a client and lawyer that is deemed essential to effective representation. It exists to ensure that a person seeking legal advice will be able to confide with an attorney fully and freely in the knowledge that those confidences will not be later revealed and cause embarrassment or harm to his or her legal position. A party may invoke the privilege to prevent disclosure of a communication with his or her attorney where the communication was for the purpose of facilitating the delivery of legal advice or services during a professional relationship, the communication was predominantly of a legal character and was confidential, and the privilege was not waived. There is rarely a question about the applicability of the privilege when the client communicates directly with the lawyer and the communication otherwise meets the above-referenced criteria. Yet, New York courts hold that in some cases, the attorney-client privilege may be waived when the otherwise protected communication is made to or in the presence of third parties. Nevertheless, as with many legal rules, there are important exceptions to this rule. In particular, New York’s highest court has made clear that “communications made to counsel through . . . one serving as an agent of either attorney or client to facilitate communication, generally will be privileged,” and that “statements made to the agents or employees of the attorney or client . . . retain their confidential (and therefore privileged) character, where the presence of such third parties is deemed necessary to enable the attorney-client communication and the client has a reasonable expectation of confidentiality.” As explained by another New York court, the privilege applies to legal communications “between the attorney and its agents and the client or its agents.” In short, “communications made to counsel by one serving as an agent of either attorney or client to facilitate communications will be privileged.” The scope of the attorney-client privilege in this setting is not defined by the third-party agent’s employment or function; the key factor is the client’s reasonable expectation of confidentiality under the circumstances. When considering whether a third party is a client’s agent whose communications with the client’s lawyer are privileged, it is helpful to reference the law of agency. Under New York common law, an agency relationship results from “a manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and the consent of the other party to act.” It is not necessary that the client execute a writing appointing a third party to serve as her agent to allow the assertion of the attorney-client privilege for communications between the agent and the client’s lawyer. Agency need not be explicit and may be implied from the conduct of the parties. There are many cases in which a member of the client’s family (such as a spouse or an adult child) was found to be the client’s agent whose participation in communications between the client and its attorney, or whose own communications with the client’s attorney on behalf of the client, were protected from disclosure by the attorney-client privilege. In one case, an elderly driver injured a number of people in an auto accident and was sued along with General Motors (“GMC”), the manufacturer of the automobile. GMC sought disclosure of all the elderly woman’s discussions with her own lawyers based on an argument that her daughter had been present during those conversations and that the privilege was accordingly waived. An appellate court reversed an order compelling the woman to testify about those discussions, noting the woman’s advanced age and the trauma she had suffered, and that her daughter selected the law firm to represent her, transported her to the law office, and helped her communicate effectively with the attorneys. Citing the above-referenced legal principles and the rule that the applicability of the privilege depends upon whether the client had a reasonable expectation of confidentiality under the circumstances, the appellate court held that it was unreasonable to discern any other expectation by either the woman or her attorneys because the daughter “was clearly acting as her mother’s agent in this setting.” In another case, a trustee (who was also the decedent’s daughter) sought to suppress attorney-client material belonging to her late father that had been disclosed by his prior law firm pursuant to a subpoena. The other party argued that the attorney-client privilege had been waived during her father’s lifetime because he permitted his daughter to participate in many of the discussions with his then-attorneys. The court rejected that argument and held that the materials were privileged because it was apparent that the daughter had consulted with her father’s attorneys “on behalf of her father in a representative capacity.” The court noted that the trustee was not only the client’s daughter but was also involved in his various business enterprises and that any fair reading of the documents in question showed that “she enjoyed his complete confidence and functioned as his alter ego. As such, her role in the discussions was one of agent for him.” There are many situations, particularly in litigation, in which it may become necessary for an adult child to serve as the elderly parent’s agent and interact with the parent’s attorney on the parent’s behalf, especially when the parent is in poor health or lacks the ability to use modern communications technology. Communicating with the attorney by email, participating in the search for and production of documents in discovery, and going over pleadings and other litigation documents with an elderly parent are just a few examples of an agent’s necessary involvement. New York law wisely allows the adult child to serve as a parent’s agent and provide that type of assistance secure in the knowledge that the parent’s confidences are protected. 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 Thomas F. Knab the author of this piece, here or at (716) 847-9104.

On Friday, March 18, 2022, the designation of COVID-19 as an “airborne infectious disease likely to cause serious harm to the public” was not renewed by the New York State Commissioner of Health. Consequently, private sector employers are no longer required to implement their workforce safety plans mandated under the New York Health and Essential Rights Act (“HERO Act”). Signed into law on May 5, 2021, the HERO Act was quietly implemented on September 6, 2021. Since that time, HERO Act requirements and guidance – particularly with respect to masking, quarantine, and isolation – have changed somewhat depending on the current status of the pandemic. However, the obligation for all employers, statewide, to implement their individual HERO Act plans has remained until recently. Although the designation of COVID-19 has changed, the HERO Act still creates employer obligations that must be followed. Employers should be aware that there may be specific masking, distancing, or vaccination requirements that may remain in place for your particular location or industry (for example, masks are still required for correction facilities, homeless shelters, adult care and nursing facilities and transportation hubs). Regardless, all employers still need to: Create a compliant (and updated) HERO Act plan for their business. The DOL still provides Model Plans, the templates for which vary by industry; Provide each employee a copy of your HERO Act plan within thirty (30) days after creating (or updating) and to all new employees upon hire; Post the plan in each work site; For employers of ten (10) or more employees, permit the establishment of workplace safety committees; and Should the Commissioner make another designation regarding an airborne infectious disease, again activate and communicate the plan to employees. 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.

Underberg & Kessler is proud to share that our partner, Patrick L. Cusato, was chosen to be on The Daily Record’s Power 20 Real Estate Law list for 2022! “The people on this list help clients — both individuals and companies — 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.” For more on this recognition, click HERE.

The New York State budget often includes dramatic and striking changes to state law and policy. For example, in 2019, then Governor Cuomo passed the sweeping Climate Leadership and Community Protection Act (CLCPA) that turns State energy priorities upside down to achieve climate change objectives as part of the budget. This year, Governor Hochul proposed significant legislation to address affordable housing that tramples on local government control of zoning. Local government leaders and municipal organizations are deeply opposed to the changes. Based on the significance of the local impacts, all New York residents would be well served to understand the proposals. The Governor announced a state-wide Accessory Dwelling Unit (ADU) mandate that will be required in each city, town, and village. The proposal is an abomination and an affront to local municipal control of zoning by each distinct local government across the State. Rather than respect the decades upon decades of local planning and zoning decisions, the ADU legislation strips New York municipalities of local control to meet a state-wide mandate aimed at affordable housing. Perhaps after two years’ worth of Albany mandates on Covid restrictions, elected officials are immune to respecting local autonomy and decision-making, but to strip individual municipalities of authority to make local zoning decisions to fit their particular needs and community is draconian even by NYS standards. The legislation defines an ADU as “an attached or detached residential dwelling unit that provides complete independent living facilities for one or more persons located on a lot with a proposed or existing primary residence and shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same lot as the single-family or multi-family dwelling.” The proposal states that despite any local law or zoning which prohibits ADUs, each municipality must pass a local law permitting the creations of ADUs including “all areas zoned for single-family or multi-family residential use and all lots with an existing residential use.” Further, each municipality must “authorize the creation of at least one accessory dwelling unit per lot.” It is axiomatic, but land use planning and local zoning regulations exist to provide for appropriate and consistent land uses within municipalities. As such, commercial, industrial, multi-family housing, and single-family housing are routinely identified and placed in areas of compatible uses. Hence, single-family residential areas are often protected from more intense and robust zoning classifications, including multi-family housing. The Governor’s ADU proposal, which in and of itself is not germane to the State budget, seeks to obliterate local zoning autonomy. Moreover, it turns zoning classifications upside down by forcing ADUs into single-family zones, against the interest of the duly elected local officials and zoning ordinances which are structured to fit the needs of each municipal setting. Unfortunately, the Governor’s original proposed budget also included another dubious State land use mandate. The budget includes a Transit Oriented Development (TOD) mandate that would require cities, towns, and villages to permit development of at least 25 dwelling units per acre on any residentially zoned property within a half mile of rail or bus stations in the metro New York City region. Strikingly, the proposal would prevent municipalities from enacting zoning regulations to prevent the development of this high-density housing per acre. Further, it mandates that New York municipalities adopt comprehensive plans and zoning regulations to conform with these density requirements. These two land use mandates are unprecedented in the State. They would eliminate home rule zoning authority in each individual municipality tailored to fit individual needs and local land use characteristics. Instead, this transfers major land use planning, to meet affordable housing development goals, to central planners in Albany. There is a myriad of legal and practical issues with forcing mandated ADU and TOD housing on existing development frameworks in New York’s municipalities. Waiving a magic zoning wand in Albany as part of a budget process, does nothing to address infrastructure (streets, traffic congestion, sidewalks, water, and sewer services) and municipal service constraints which exist in each municipality should they be forced to accept high density affordable housing. The budget proposal also contains a provision to allow the NYS Secretary of State to seek an order authorizing the county to investigate local city, town, village code enforcement and administration of the NYS Uniform Fire Prevention and Building Code. The investigation would allow the local county to determine whether the local government is complying with minimum standards for enforcement of the Uniform Code. If not, the county could assume responsibility for local code enforcement with reimbursement from the municipality. This proposal also ignores the scope, extent, and experience of code enforcement by local municipalities and the limited role that counties play. However, it appears consistent with the ADU and TOD proposals which are aimed at removing local control of land use decisions. Whether affordable housing is a necessary and appropriate policy decision is separate from what is at stake in these budget proposals. Very simply, the Governor’s proposals on ADUs and TOD would undermine longstanding legal principals of local municipal control of zoning regulations, while simultaneously imposing a one-size-fits all mandate across the State irrespective of existing development and infrastructure capacity. The proposal is unsound from a legal perspective, as well as land use planning approach. New York’s local municipalities and advocacy groups would be well served to closely assess the proposals and comment as they deem necessary. Note that after this article was written, it was reported on February 17 that after intense municipal opposition the Governor pulled the ADU and TOD proposals from the budget. The Governor’s budget has been revised to provide authorization for New York City to establish a program to legalize preexisting ADUs. Given the significance of the proposals and the chance that they could be included in future end of session legislation or next year’s budget, we are keeping the ADU and TOD discussions for informational purposes. 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.