The fluctuating workweek half-time overtime option has been available for many years under federal law as a way for employers to reduce their overtime costs for employees who work different hours each week. The option requires that the employee be paid a fixed minimum amount weekly regardless of the number of hours worked. Then, if that number of worked exceeds 40, the employer may pay overtime on a half-time of the regular rate of pay basis (determined each week overtime is worked). An example that has been used: an employee paid $500 minimum every week who then works 45 hours in a week, would be paid $527.78 for the week ($500 plus 5 hours at half the regular rate of $500/45-$11.11). Previously, if the employer wanted to pay any bonus to a fluctuating workweek employee, the half-time overtime option would be lost, and the employer would owe the employee time-and-a-half overtime. The new federal DOL proposal would eliminate that result and allow the payment of bonuses to fluctuating workweek half-time overtime employees as long as the bonus is counted in determining the regular rate. Therefore, if in the example above, the employer decided to award the employee a $100 bonus in that week, the employee would receive $633.35 ($500 plus 5 hours at half the regular rate of $600/45-$13.33). The new proposed rule was set to be published in the Federal Register on November 5, 2019 and there is now a 30-day public comment period ending on December 5, 2019. Anyone seeking help in submitting a comment to the federal DOL or implementing a fluctuating workweek half-tine overtime program, please contact us at 258-2882 or pkeneally@underbergkessler.com. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP has been named a 2020 Rochester Tier 1 “Best Law Firm” by U.S. News - Best Lawyers®. The firm’s municipal law and real estate practices were included in the top tier rankings of Rochester law firms. The “Best Law Firms” are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving inclusion in this list signals a unique combination of quality law practice and breadth of legal expertise. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Underberg & Kessler LLP is a full-service law firm with offices in Rochester, Buffalo, Canandaigua, Webster and Geneseo, New York.  The firm has been serving its business and individual clients for more than 100 years with practice groups in banking & finance, business & corporate, construction, creditors’ rights, environmental, estates & trusts, family law, health care, intellectual property, labor & employment, litigation, municipal, real estate and tax. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

NY passed a new law this year that applies to employees that are victims of domestic violence.  This law requires employers to provide victims reasonable time off from work to seek medical attention for himself or herself for the injuries caused by domestic violence, to receive services from a domestic violence shelter or program or a rape crisis center, to obtain psychological counseling, to participate in safety planning or other activities to increase the victim’s safety in the future, to receive legal services, assist in the prosecution of the perpetrator, or to appear in court in relation to a domestic violence incident.  Employees must provide the employer with advance notice of such an absence if possible.  If advance notice is not possible, the employer may require documentation of the need for the leave, such as a police report, court order, or documentation from a counselor, advocate, or medical professional.  Employers must keep an employee’s domestic violence victim status as confidential as possible, as well as any information related to that status. Employers can require employees to use any available paid time off, unless a collective bargaining agreement or other written policy provides otherwise.  It’s important to make sure your managers are aware of this new law to ensure compliance.  Remember, domestic violence victim status is also a protected category in NYS. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The Internal Revenue Service recently issued Revenue Ruling 2019-24 (https://www.irs.gov/pub/irs-drop/rr-19-24.pdf), providing the first IRS guidance on tax issues relating to cryptocurrency since the March 2014 release of Notice 2014-21.  Along with the release of Rev.Rul 2019-24, the IRS issued a number of “Frequently Asked Questions” pertaining to the tax treatment of certain cryptocurrency transactions, which are available on the IRS website. The IRS treats cryptocurrencies as “virtual” currencies that constitute property, not cash, for tax purposes.  Therefore, a disposition of virtual currency by a taxpayer, including the use of virtual currency to “pay” for goods or services, constitutes a disposition of property that may subject the taxpayer to gain or loss. A review of the IRS guidance in the aggregate, suggests that the IRS is turning its focus toward the collection of tax revenue associated with cryptocurrency transactions as well as providing taxpayers with education about cryptocurrency transactions. While a complete summary of Revenue Ruling 2019-24 is beyond the scope of this blog post, it would be prudent for individuals who possess and utilize cryptocurrency to discuss with their attorneys, accountants and financial advisors whether their dealings with cryptocurrency will cause them to be subjected to income taxation. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP in conjucntion with M&T Bank is pleased to present: A Seminar for Real Estate Agents - Are You Current in Today's Residential Real Estate Market? There are several legal and financial aspects to the residential real estate market that change on a regular basis. If you're not up-to-date, it could be negatively effecting your performance! Underberg & Kessler's joint seminar with M&T Bank is an opportunity to learn more and stay current - join us! Breakfast will be provided. Topics covered will include: Tenant Protection Act of 2019 •How it impacts your customers •Major changes to landlord / tenant law •Presented by Underberg & Kessler attorney Justin P. Alexander, Esq. New 2019 Purchase and Sale Contract •Issues that affect the closing process (3 day attorney approval, Title searches/breach of contract, New contingencies, Bump clause, 1 to 4 family addendum) •How to write a successful contract •Presented by Underberg & Kessler attorney Patrick L Cusato, Esq. New Home Starters Mortgage Program •Low down payment payment (3% one unit / 5% two unit) •No borrowers mortgage insurance •Down payment and closing cost assistance available •M&T lender credit up to $2000 for properties location in a low-to-moderate income census tract (LMI) •Borrowers qualify if at or below 80% of the HUD Median Area Income or who are purchasing a home in a specified LMI census tract (no income limits) •Not limited to a first-time home buyer •Presented by M&T Bank See event details below: Wednesday, November 13th  Locust Hill Country Club 2000 Jefferson Road Pittsford, NY 14534 Agenda Registration & Continental Breakfast - 8:00 - 8:45 AM Presentation - 8:45 - 11:00 AM There is no charge to attend, but space is limited. Register Here As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Observers noted a sharp divide among the United States Supreme Court Justices during oral argument of three cases before them on October 8, 2019. At issue before the Court was whether the prohibition against discrimination on the basis of “sex” in federal Title VII includes protection from discrimination for the LGBTQ community. The Court previously ruled unanimously in 1998 that sexual harassment in employment between members of the same sex is illegal under Title VII, but the federal circuit courts have split regarding whether that prohibition applies to other forms discrimination against members of the LGBTQ community. The Court’s four so-called “liberal” Justices strongly indicated support for finding that Title VII’s prohibition on discrimination based on sex covers employment discrimination that occurs because of the employee’s sexual orientation or transgender status. For example, Justice Sonia Sotomayor called LGBTQ discrimination “insidious behavior” covered by Title VII. The Court’s other five Justices, who are considered “conservatives”, were either quiet (Justices Kavanaugh and Thomas), or indicated at least reluctance to extend Title VII to LGBTQ discrimination instead of having Congress clarify the issue (Justice Gorsuch). Justice Alito was the most skeptical of the conservatives, stating that plaintiffs and their attorneys were attempting “to change the meaning of what Congress understood sex to mean in 1964 (when Title VII was passed)”. All discrimination against members of the LGBTQ community is already illegal under the New York State Human Rights Law, but if that right is extended to Title VII it will give plaintiffs and their attorneys significant, additional options in pursuing relief. Indeed, one of the three cases at issue before the Court was brought by a plaintiff from New York. The Court is expected to issue its Decision in the Summer of 2020. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP was pleased to provide a team of experienced attorneys who effectively delivered the NYS required training on sexual harassment discrimination and avoidance on 9/11/19. The training was geared towards: •Employees - all employers with more than one employee must comply •HR Personnel - who will learn how to conduct future internal trainings (train the trainer) Every NYS employer must provide all employees, contractors and interns with this sexual harassment avoidance training annually. There are plans for this event in the fall annually, but if you missed this year's event and still need your employees to receive the training, our attorneys are happy to conduct the training at your office(s). Please contact us here. The fall 2019 agenda is below for reference. As always, if you have any questions, please feel free to contacts us here or call us at 585.258.2800. Where: Locust Hill Country Club 2000 Jefferson Road Pittsford, NY 14534 When: September, 11th 2019 8:30 AM   Registration and Continental Breakfast 9:00 AM   Training Begins 11:00 AM Training Concludes Who: Your trainers will be: Paul F. Keneally, Esq Jennifer A. Shoemaker, Esq Alina Nadir, Esq

The federal government has announced the new salary requirements for employees to be exempt from overtime pay under federal law.  The new salary threshold is $35,568 annually or $684 weekly. Currently, an employee must make at least $23,660 a year to be a salaried exempt employee under federal law. That salary level was set by the government in 2004.  The Obama Administration tried to increase the salary threshold to about $47,000.00, but the increase was halted before it took effect.  It was widely expected that the proposed increase would be much lower under the Trump Administration.  Remember that New York State’s salary threshold for an employee to be considered exempt is higher than federal requirements – the threshold is currently $832.00 weekly ($43,264.00 annually) in Monroe County and surrounding counties.  That will increase to $885 weekly ($46,020.00 annually) on December 31, 2019.  New York employers must always follow the law that is most beneficial to their employees.  As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Historically, gig workers (think Uber drivers, InstaCart, Doordash) have been classified as independent contractors, allowing companies to avoid having to pay benefits or minimum wage and overtime.  This may change sooner than you think.  Just last week, California got one step closer to making it harder for companies to classify these individuals as independent contractors.  While the bill still must be signed into law, experts believe that this is inevitable.  New York Gov. Andrew Cuomo has indicated he is paying close attention to California and would like to see a change in these types of workers’ classifications. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Rochester Business Journal selected Leah Tarantino Cintineo, Partner, Underberg & Kessler LLP as a 2019 Forty Under 40 honoree. Forty Under 40 recognizes 40 men and women, under the age of 40, who have achieved professional success and who have also made significant civic contributions to the community. A panel of judges consisting of previous winners from various professions select the Forty Under 40 honorees. In choosing the winners, judges look for candidates who excel both professionally and who are actively involved in and giving back to the community. This year marks the 25th anniversary of Forty Under 40, and 1,000 outstanding professionals have been honored over the years. "All of this year's Forty Under 40 honorees are doing more than their share to make Rochester a better place to live and work. We know how difficult it is for successful individuals in demanding careers to find time to give back to our community in a meaningful way," said Suzanne Fischer-Huettner, group publisher of the Rochester Business Journal. "Each of these individuals is giving back and sharing their passions while still growing their careers. We at the Rochester Business Journal are pleased to recognize their achievements." The Forty Under 40 awards will be presented at a luncheon Nov. 12 at noon at the Rochester Riverside Convention Center, 123 East Main Street in Rochester. Winners will be profiled in a magazine that will be inserted into the November 15 issue of the Rochester Business Journal. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The Daily Record selected David M. Tang, Partner, Underberg & Kessler LLP to receive a 2019 Attorney of the Year Award in the Leaders in Law category. The Daily Record’s Attorneys of the Year Awards honor outstanding attorneys through the Leaders in Law, Pro Bono, Judicial Excellence and Lifetime Achievement awards. Fourteen members of the legal community were recognized for their outstanding work. The judges were past Attorneys of the Year winners. The Leaders in Law Award honors attorneys who have shown dedication to the legal profession and selfless, tireless commitment to the community. "The Attorneys of the Year winners exhibit exceptional character, integrity and ethics, which make them standouts in the legal profession. They are dedicated to making a difference," said Suzanne Fischer-Huettner, group publisher of The Daily Record. "In addition to demonstrating excellence and achievement in the legal profession, they are leaders in the greater community in which they live and work. We are pleased to honor them for their many professional and community achievements." The 2019 Attorneys of the Year Awards will be presented Nov. 14 at a reception and dinner starting at 5:30 p.m. at the Hyatt Regency Rochester, 125 East Main St. in Rochester. Winners will be profiled in a special magazine that will be inserted into the Nov. 15 issue of The Daily Record. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Our very own Kaitlyn Pierce appeared on The Mix 100.5 to discuss her work with The Brain Injury Association of New York State. On Saturday 9/14/19, the association will be hosting the 5th annual March On for Brain Injury Family Fun Walk. You can hear Kaitlyn's interview in it's entirety where she discusses the 9/14/19 event, how she became involved in the organization, and brain injuries in the NFL and the safety of NFL players here: https://vocaroo.com/i/s0E817MkR9Ex If you'd like to learn more about the 2019 Fun Walk, you can do so here: https://bianys.org/event/march-on-for-brain-injury-family-fun-walk-2019/ As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.