Both the New York State Human Rights Law and Dignity for All Students Act were expanded last Friday to ban race discrimination based on “natural hair or hairstyles,” including, but not limited to, “braids, locks and twists.”  The law, called the CROWN (Creating a Respectful and Open World for Natural Hair) Act, takes effect immediately. The change bans schools and businesses from having policies on hair that largely impact minorities.  Supporters of the expansion say minorities often face discrimination that is cloaked as criticism of their hair texture or style.  Black women are reportedly 1.5 times more likely to have reported being sent home from work because of their hair.  Employers should review their handbooks and policies to ensure that any grooming policies are compliant and up to date. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. #Legal #Informational #EmploymentLaw #LaborLaw

Department of Labor Secretary Alex Acosta recently stepped down from the position, and President Trump has named Eugene Scalia as his replacement nominee. Mr. Scalia was previously a lawyer in the Labor Department during George W. Bush’s administration. Mr. Scalia is also the son of former U.S. Supreme Court Justice Antonin Scalia. Should he be confirmed, Mr. Scalia is expected to be pro-business and unfriendly to unions and workers’ rights issues. Since leaving Bush’s administration in 2003, he has represented very large corporations in labor and employment matters. He is also known to dispute the link between a worker’s repetitive motions and physical injury, believing the idea to be something labor unions came up with to give employees more rest and slow the pace of work so that more union members will have to be hired. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. #LaborLaw #EmploymentLaw

This question and answer was printed in a Monroe County Medical Society 2019 Bulletin. During a recent well child visit at my family practice, the exam room smelled strongly of marijuana smoke. The parent appeared tired and had bloodshot eyes. The parent also reported driving the child to the appointment. What are my obligations as a physician and does this require mandatory reporting to child protective services? New York State requires all mandatory reporters, including physicians, to report suspected child abuse or maltreatment when there is a reasonable suspicion of abuse or maltreatment. Abuse includes inflicting or creating a substantial risk of serious physical injury upon a child. Maltreatment, which includes neglect, means that a child’s physical, mental or emotional condition has been impaired, or placed in imminent danger of impairment, by the failure of the child’s parent or guardian to exercise a minimum degree of care. This includes the misuse of drugs. The standard for reporting suspected child abuse or maltreatment is significantly lower than the standard for removal of a child after a Child Protective Services report. Pursuant to New York State law, this situation should be reported to the New York Statewide Central Register of Child Abuse and Maltreatment (SCR) because of the suspicions that the parent has recently used marijuana and reported driving to the appointment. Driving under the influence of marijuana could pose a substantial risk of serious physical injury to the child. Additionally, misuse of drugs, including marijuana, may constitute neglect. With the increased use of medical marijuana in New York State and the likelihood that recreational marijuana use will be legal in the coming years, pediatricians and family practitioners will increasingly face the legal obligation to report parental marijuana use to the SCR. The likelihood that children will ingest medical or recreational marijuana products will also increase as these products become more common. No state has authorized medical marijuana for use for children. A parent may, however, travel to a state where recreational marijuana is legal in hopes of helping a sick child suffering from chemotherapy induced nausea or intractable seizures. Despite the parent’s desire to help the child, a physician would be legally mandated to make a SCR report if he or she became aware of a parent providing marijuana to a child. As the country’s views on marijuana use shift, tension between a physician’s legal and ethical duties will invariably occur. Practitioners must continue to balance their legal obligations as mandatory reporters with the importance of maintaining patient relationships. Ultimately, whether a situation will be reported to the SCR is determined by the physician’s judgment and whether the doctor believes the situation poses a risk of abuse or maltreatment. A teenager’s accidental ingestion of a parent’s medical cannabis lozenge may not warrant a report to the SCR, but heavy marijuana smoking by the parents of a newborn may require a referral. The willful failure to report a case of suspected child abuse is a Class A misdemeanor for which the maximum punishment is one year in jail or three years of probation and a fine of up to $1,000.00. When in doubt, call a knowledgeable health care attorney to discuss the situation and your legal obligations. More information on mandatory reporting can be found at the Office of Children and Family Services website at: https://ocfs.ny.gov/main/cps/Mandated_Reporter_Training.asp As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The recent sad and tragic accident involving a young boy’s death at an outdoor grease trap at a local coffee shop brings to mind the duties employers have regarding safety. Beyond the moral duty to protect their employees and others, the legal sources of those duties can be federal, state or local as in the Occupational Safety and Health Administration (OSHA), the State Department of Health (NYSDOH) or the County Department of Environmental Services (DES) respectively.  Oversight may come in the form of audits or investigations of complaints offering the deterrence of possible significant fines, along with the threat of liability under workers’ compensation (employee injury or illness occurring on the job) or tort (intentional or negligent behavior injuring a customer/guest etc.) law.  In response to the recent tragedy, Monroe County employees will be or already have inspected local restaurant grease traps. Current law does not require such inspections, but that may be changing soon as legislators are considering the issue. All employers should be conducting their own internal safety audits on a regular basis, inside and outside their places of business, as applicable. Care should be given to eliminating any safety hazards in the workplace, such as debris or materials in walkways, hazardous materials improperly stored or safety equipment unavailable or not being used. Any employer seeking to discuss the parameters or details of an internal safety audit should not hesitate to contact us.

The bulk of the assets that a decedent leaves to his or her loved ones are usually made up of retirement accounts (e.g., IRA, 401(k)), life insurance policies, annuities, employee benefit plans or stock options. Many people mistakenly believe that such assets ultimately pass to the beneficiaries named in a Last Will and Testament but unfortunately, this is not the case.  These types of assets are known as non-probate assets which means that a decedent’s Last Will and Testament does not govern the ultimate disposal of these assets; rather, the disposition is governed by a beneficiary designation form. Many times, when individuals are young and do not have a family of their own, they will list their parents as the beneficiary of a life insurance policy or retirement account on a beneficiary designation form.  Later, when they have a family of their own, they mistakenly believe that when they die their family members will be the beneficiaries of the life insurance policy or retirement account.  Unfortunately, however, if an individual was to die without updating the beneficiary designation form to include his or her family members, the individual’s parents would receive the benefits of the life insurance policy and retirement account that the deceased individual intended to benefit his or her family. Beneficiary designation forms generally become stale due to life-changing events (i.e., marriage, the birth of a child, or the death of an individual), and the failure of an individual to update a beneficiary designation form can have unintended results. In order to best ensure that an individual’s non-probate assets pass to the intended beneficiaries, it is recommended that individuals review their beneficiary designation forms at least every two to three years and upon any life changing event.  Concurrently therewith, it would be prudent to have an attorney review the beneficiary designation forms in connection with a review of an individual’s current estate planning documents, as they generally go hand-in-hand.

On July 18, 2019, the Centers for Medicare and Medicaid Services (CMS) published a long-anticipated final rule allowing nursing home operators to include a pre-dispute binding arbitration clause in resident admission agreements.    The following outlines requirements under the new rule for facilities participating in Medicare and Medicaid.  This final rule goes into effect on September 16, 2019.  If a facility chooses to ask a resident, or a resident’s representative, to sign an agreement for binding arbitration, the facility must: • Explicitly inform the resident, or representative, of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue to receive care, at the facility. • Ensure that the agreement is explained to the resident, or representative, in a form and manner that s/he understands, including in a language the resident or representative understands and the resident or representative must acknowledge s/he understands the agreement. • Provide for the selection of a neutral arbitrator agreed upon by both parties, and in a venue that is convenient for both parties. • Explicitly grant the resident or representative the right to rescind the agreement within 30 calendar days of signing it. • Retain copies of the signed agreement for binding arbitration and the arbitrator’s final decision for 5 years after resolving any dispute. • Ensure the agreement does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state or local officials. To be compliant with the final rule, facilities should consider reviewing any pre-dispute arbitration agreements and modifying as necessary.  If you are interested in including an arbitration clause or amending your current admission agreement, please feel free to contact me for more information. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Eight attorneys from the law firm of Underberg & Kessler LLP have been named 2019 Upstate New York “Super Lawyers”, and one has been a named 2019 Upstate New York “Rising Star”. Mike Beyma, Jim Coniglio, Steve Gersz, Kate Karl, Paul Keneally, Tom Knab, Anna Lynch and Margaret Somerset were included in the 2019 “Super Lawyers” group under the following areas of law.  This group represents the top 5% of attorneys in Upstate New York, and is awarded to those attorneys who have attained a high degree of peer recognition and professional achievement. Mike Beyma – Banking Jim Coniglio – Government Finance Steve Gersz - Business/Corporate Kate Karl – Real Estate Paul Keneally – Employment & Labor Tom Knab – Business Litigation Anna Lynch - Health Care Margaret Somerset – Personal Injury Medical Malpractice: Defense Leah Cintineo was included in the 2019 group of Upstate New York “Rising Stars” for Family Law.  This group represents the top 2.5% of lawyers who are under 40 years old or who have been practicing for 10 years or less. The “Super Lawyer” list is produced annually, through a rigorous selection process of statewide nominations, peer review within the local legal community, and independent research of candidates. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP is proud to announce that eleven of it's attorneys have been selected by their peers for inclusion in The Best Lawyers in America® 2020, and one attorney was named Rochester “Lawyer of the Year” in their area of practice. Mike Beyma, Jim Coniglio, Pat Cusato, Steve Gersz, Tim Johnson, Kate Karl, Paul Keneally, Anna Lynch, Ed Russell, Margaret Somerset and George Van Nest are included in the 2020 edition under the following specialties: Mike Beyma – Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law Jim Coniglio – Municipal Law Pat Cusato – Real Estate Law Steve Gersz – Closely Held Companies and Family Businesses Law, Corporate Law Tim Johnson – Real Estate Law Kate Karl – Commercial Finance Law, Real Estate Law Paul Keneally – Commercial Litigation, Litigation – Labor & Employment Anna Lynch – Corporate Law, Elder Law, Health Care Law Ed Russell - Corporate Law Margaret Somerset – Medical Malpractice Law–Defendants George Van Nest – Environmental Law Additionally, Jim Coniglio was named “Lawyer of the Year” in Rochester for Municipal Law.  Only one area lawyer in each specialty receives this honor. Best Lawyers® conducted its annual peer-review survey in which 83,000 attorneys cast more than 8.2 million votes about the legal abilities of other lawyers in their practice areas. Lawyers are neither required nor allowed to pay a fee to be listed, and are included solely based on the results of the peer review. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On July 18, 2019, Governor Cuomo, along with former Vice President Al Gore in attendance, signed the Climate Leadership and Community Protection Act (CLCPA). The legislation is described by the Governor’s press release as “the most ambitious and comprehensive climate and clean energy legislation in the country.” The reaction from the environmental groups has been enthusiastic. However, the feedback from the business community much less so due to uncertainty and cost. Time will tell how the CLCPA works and the ultimate cost of implementation, but the scope of the regulatory requirements appear daunting for New York residents and business. The overall requirements are significant and are intended to re-shape New York’s energy, transportation and building sectors in the next few decades. First, CLCPA requires the State to attain a carbon free electricity system by 2040 and reduce greenhouse gas emissions by 85% below 1990 levels by 2050. The Governor has touted the program as “setting a new standard for states and the nation to expedite the transition to a clean energy economy.” The legislation is said to spur investment in clean energy technologies such as wind, solar, energy efficiency and storage, with targeted investment in disadvantaged communities and thousands of new jobs. The Governor has also suggested that CLCPA will improve public health, quality of life and provide the State with more clean energy choices. The CLCPA will require the NYS Department of Environmental Conservation (DEC) to adopt regulations to attain an initial 40% reduction in emissions from 1990 levels by 2030 and an 85% reduction in greenhouse gas emissions by 2050. Significantly, the legislation provides that the regulations include “legally enforceable emissions limits, performance standards, or measures or other requirements to control emissions from greenhouse gas emission sources.” The regulations will cover the entire breath of the NYS economy from energy, transportation, buildings and development. Notably, internal combustion engines (gas or diesel), as well as boilers and furnaces are included under the scope of greenhouse gas emissions sources. While upstate NY farmers recently took a major hit with overtime legislation, at this point, “agricultural emissions from livestock” are excluded from regulation. The legislation establishes a 22 member Climate Action Council headed up by NYS Energy Research and Development Agency and DEC, along with other state agency leaders and legislative appointees, will establish policies to attain the goals of the legislation. The Climate Action Council, in conjunction with the Environmental Justice Advisory Group and Climate Justice Working Group, are supposed to create a plan to offset the remaining emissions through carbon capture or other options to result in a carbon-neutral economy. The CLCPA legislatively adopts the Governor’s “nation-leading goals as called for under his Green New Deal,” requiring that at least 70% of New York’s electricity from renewable energy sources such as wind and solar by 2030 in order to attain 100% carbon neutral by 2040. In addition, the Governor’s goals of “nation-leading commitments” to install 9,000 megawatts of offshore wind by 2035, 6000 megawatts of solar by 2025, and 3,000 megawatts of energy storage by 2030. On the same day as CLCPA was signed, the Governor executed an offshore wind agreement to procure about 1,700 megawatts through two offshore wind projects. The State has projected that the agreement will generate enough power for 1 million homes, create more than 1,500 jobs and produce $3.2 billion in economic activity. A major component of the CLCPA is investment in environmental justice and “just transition.” State agencies involved in CLCPA matters are slated to invest at least 35% of clean energy program resources to benefit disadvantaged communities and up to 40%, if feasible. Further, the just transition working group will make efforts to ensure that individuals working in conventional energy industries are provided with training and an opportunity to transition to the clean energy jobs. As expected, reaction from environmental groups has been highly favorable. For example, the Environmental Defense Fund has said that “[t]hese targets to reduce emissions are among the best in the country and will propel progress toward cutting climate pollution nationwide.” In contrast, New York’s Business Council has been somewhat circumspect in noting the adoption of the CLCPA. Stating that “[c]arbon policies that global competitors are not subject to can put businesses at an economic disadvantage. If our companies are not competitive there is risk of job loss to other jurisdictions with weaker standards, ultimately resulting in higher global greenhouse gas emissions. We need to get this right, to avoid a potential shipwreck.” The CLCPA will have a profound and far-reaching impact on New York State’s economy. It will require massive re-structuring of the energy, transportation and building communities to meet the greenhouse gas emission standards and performance standards to be developed by DEC. While the Governor, legislative majority and environmental groups are lauding passage of the legislation, the costs and impacts to New York businesses and residents have not been a part of the discussion. Hence, it remains to be seen whether environmental regulatory technology, public support and cost tolerance will keep pace with the extremely aggressive goals mandated by CLCPA. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

I write often. Dozens of emails per day. Last month, on a Wednesday, the first email was sent at 8:05 AM and the last went out at 11:40 PM. In between, there were e-filings and more writing: a demand letter, a brief, an article.  I am coordinating with my wife to pack kids’ lunches, sign forms, check homework, transport the boys to lessons and practices, schedule house stuff, family stuff and car stuff. And I fit those in between the first and last emails of the day. In looking back at what works and what has not worked for purposes of writing this column, a few themes emerged. Everything is calendared. Planning ahead is critical for me. I calendar all work and personal appointments. I either personally calendar the events or ask my administrative assistant to put dates on the calendar for me. Over time, I have come to realize that if I don’t schedule important activities, they might not get done or not get done on the timing that would be ideal.  I like the Outlook calendar function. My wife still uses a leather-bound notebook to track appointments. Through trial and error, I have discovered that having a clear idea of what needs to happen or to be completed during the day is important to getting the important tasks done by the court-ordered or spouse-requested deadline. Detailed Scheduling. In the beginning, I scheduled deadlines for motions, client appointments, court appearances, internal meetings but little else. Now, while my scheduling during the week still includes court dates, lunches and coffee meetings, and court appearances, I also schedule other important tasks. I call these important events or to-do items -- non-negotiables.  For example, picking up kids from school or the sitter falls into this category. Our children’s pre-K center had a rule to impose fines on parents for late pick-ups, so that motivated me to become religious about afternoon pick-up appointments for which I was responsible.   In the last few years, as our two sons have grown up, I schedule their lessons, practices and the days when the kids have an early morning activity which might require transportation to school. Sometimes the calendar entry even says, “Lv at 4:40 for 5p pick up at Naz” (the boys take lessons at Nazareth College). Not-to-do Lists Help.  In the past, I would get stressed about being too busy. These days, I just accept that my week might flip from busy to very busy or, sometimes, ridiculous. One thing I tested which works is to make a not-to-do list.  Items that go on the not-to-do list might include excessive surfing, resetting my fantasy football line-up or limiting myself to one episode of my favorite show instead of watching all of Season 5 of ‘The Wire’ in one sitting. But it also might include, delegating drafting or a discrete research assignment to a colleague or my amazing paralegal and/or taking a difficult file with a 2-week deadline and giving it to my administrative assistant with a request that it come back for review in a week. I’ve also experimented with taking an informal pre-audit on Sunday afternoons or evenings to calculate how much drafting/writing I have for various projects in the coming week. If the audit reveals I have more than 25 hours of writing projects (not including emails or time spent commuting, phone calls or meetings), then I know that I’ll probably need to be extra selective in agreeing to take on new, time-consuming projects over the coming week.  Learning to say “no for now” is a skill set and one I think that can be acquired through practice. Making time for Strategy.  Over time, I have also found that I have to schedule time to work on the ‘important but not urgent’ tasks, including strategy.  Sometimes, the strategy that needs to be identified is how to get through the week.  Things that I review during ‘strategy time’ might include the projects with Friday deadlines, and/or scheduling reminders for upcoming travel or setting intermediate deadlines for larger projects. I try to set aside time on my calendar for planning weekly. The idea for this came from an interview of an entrepreneur who uses Wednesdays for strategy time. He doesn’t schedule any calls or meetings on Wednesdays, the day is set aside for reading and writing only.  I haven’t been able to set aside an entire day, weekly, for planning (yet) but I have found that I can set aside 90-minutes in the morning at least a couple times a month, for client development and/or other long-term projects.  Over the years I’ve tried to make this a weekly thing but I know through trial and error that inevitably I will get scheduled for a court conference or a time-sensitive client situation will come up or a kid will get sick and the ‘important but not urgent’ task will be bumped for the ‘important and urgent’. Work Balance. Life Balance.   I found that maintaining good physical health keeps me sharp.  A few years ago, my friend, Ron, wrote a great article for Harvard Business Review called, Regular Exercise is Part of Your Job. The article explains that social scientists researching the impacts of exercise have determined that the benefits go beyond a healthier heart, better physique and lower blood pressure. What caught my attention was that the evidence suggests exercise improves how one thinks: sharper memory, prolonged mental stamina, and enhanced creativity. Ron also wrote about a study of 200 employees which found that on the days when employees exercised, their work experience changed: the employees reported being more productive, having smoother interactions with colleagues and enhanced mood.  So, I have successfully kept up my fitness routine for the last many years and would like to think I am benefiting from better memory and creativity. Testing Sweat-working. Recently, I have been experimenting with sweat-working.  So far, only one referral source has been willing to meet me at the gym to catch up but if the benefits are to keep up a professional relationship while also improving mental stamina and creativity, I’m inclined to keep up the habit. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

I was recently consulted by the former client of a certified public accountant. The client, who I’ll call “Ms. Smith,” hired the accountant to manage all financial aspects of her business. This included providing payroll services and preparing and filing tax returns related to payroll tax and sales and use tax. After several years, the IRS and New York State Department of Taxation conducted audits of Ms. Smith’s business. She learned that the accountant had filed inaccurate tax returns and failed to file some quarterly tax returns. This resulted in her business owing a large sum for back taxes along with penalties and interest. Ms. Smith was having difficulty paying down the tax owed in arrears and wanted to know what, if any, legal recourse she had against the accountant. License to Practice Many professions in New York require a license to practice, including attorneys, engineers, financial advisors, stockbrokers, auditors, bankers, and accountants. Article 130 of the New York State Education Law (“NYSED”) “provides for the regulation of the admission to and the practice of certain professions.” NYSED § 6500. The provision outlines the procedure for applying to become and being admitted as a licensed professional. Article 149 of the NYSED, entitled “Public Accountancy,” provides that only a “person licensed to practice under this article shall practice public accountancy” or use the title or designation “certified public accountant,” “CPA,” or “public accountant.” NYSED § 7402. Ms. Smith was completely unaware that her accountant was filing inaccurate and incomplete returns on behalf of her business. She groused that she specifically sought out the accountant as he held himself out on his website as being qualified to provide such specialized, professional services. The accountant’s failure to meet these obligations resulted in unpaid taxes as well as significant interest and penalties. What were her options to hold the accountant liable for his mistakes? Professional Malpractice Licensed professionals are subject to civil claims of malpractice if they owe an affirmative duty of care to the client, breach that duty by negligent activity, and the client suffers financial loss which is proximately caused by the negligence. Here, the accountant, once hired by Ms. Smith, owed a duty to exercise due care while performing accounting and payroll services for the business. The accountant breached this duty by providing improper and/or flawed accounting services. Furthermore, the services provided were deficient, inadequate, professionally negligent, and overall not competent. In other words, the accountant deviated from the standard of care to be exercised by accountants engaged to provide tax advice and to prepare and file accurate tax returns. Finally, the direct and proximate result of the accountant’s breach of duty resulted in Ms. Smith’s business incurring additional tax liability, interest, and penalties. It also forced her to hire another accountant to prepare amended tax returns, which can be included in her claim for damages. She can also include as damages legal fees required to pursue civil action against the accountant. The fact that Ms. Smith settled her business’ tax audits by agreeing to satisfy the unpaid past tax, along with interest and penalties, does not preclude her from pursuing a malpractice lawsuit against the accountant. She relied on the accountant to represent her business with the reasonable skill, care, and diligence that members of the accounting and payroll profession commonly possess and exercise in similar situations. The accountant represented to Ms. Smith that he had a high level of experience in providing accounting and payroll services and was competent to perform these services for her business in compliance with professional accounting standards. Another cause of action available to Ms. Smith is negligent misrepresentation. To bring such a claim, “a plaintiff is required to allege that the speaker is bound to the other party ‘by some relation or duty or care.’” JP Morgan Chase Bank v. Winnick, 350 F. Supp. 2d 393, 400 (SDNY 2006) (quoting Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 788 (2d Cir. 2003)). “In ordinary commercial contexts…it is imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified.” Id. The plaintiff must show: “(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.” Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 910 F. Supp. 2d 543, 546 (S.D.N.Y. 2012) (quoting Mandarin Trading, 16 N.Y.3d 173, 180 (2011)); see also Dallas Aerospace at 788. Note that a claim for negligent misrepresentation does not require proof of intentional or malicious conduct. Ms. Smith can assert that the accountant, once hired, had a duty to provide her with accurate information and services, failed to do so, and she justifiably relied on his advice and work product. Consideration for Practitioners Accountants, like all licensed professionals in New York, must be acutely aware of the duties and responsibilities that come with providing specialized services. Obtaining adequate malpractice insurance coverage should be every accountant’s first step. It is also important for accountants, like all professional practitioners, to research potential clients and become familiar with the scope of their business. If you know the professional needs of a prospective client, you can craft a contract or retainer agreement that accurately memorializes the services that you will (and won’t) be providing. Finally, accountants should have a current understanding of the ethics guiding the profession in order to avoid potential conflicts or impropriety. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Continuing with its’ busy employment legislation season, New York has amended the Human Rights Law to prohibit discrimination based on religious attire, clothing and facial hair.  The law becomes effective on October 8, 2019.   The law already prohibited employers from treating applicants or employees differently because of their religion, but the amendment makes clear that the definition of religion includes bias against any employee’s religious clothing, facial hair or attire.  The law puts the burden on the employer to show that appearance, such as facial hair or the wearing of religious items would present a hazard or prevent a worker from doing his or her job.  An employer engages in unlawful discrimination when it requires an employee to violate or forgo religious practice unless it demonstrates that it is unable to reasonably accommodate the employee’s religious practice without undue hardship on its’ business. As always, check with us if you have questions regarding your employment practices. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.