If one of your employees shows up for work drunk, you can fire them. But if they tell you they’re an alcoholic, you’ll probably have to offer them a chance to get help for their addiction because alcoholism is a protected disability under the Americans with Disabilities Act of 1990. If you ask an employee to work on short notice, even if you only need them for two hours, you have to pay them for at least four hours. But you can schedule an employee in advance to work less than four hours and you only have to pay them for the time worked. And if unpaid interns do even the tiniest bit of work that benefits an employer, they must be paid. Those are just a few examples of the expert advice offered by three lawyers from the Underberg & Kessler law firm Friday at the Greater Rochester Chamber of Commerce, 150 State St., during the hour-long presentation called Hot Topics in Labor and Employment Law. The presenters were Underberg & Kessler partners Paul F. Keneally and Jennifer A. Shoemaker, and associate attorney Alina Nadir. The audience of about 25 human resources professionals from businesses and organizations throughout the Rochester area got a quick review of more than a dozen topics. Transgendered employees: Nadir pointed out that in January New York state regulations went into effect to protect transgender employees from discrimination. And the protections extend to gender dysphoria --- a situation where a person feels they are not the gender they appear to be physically. “The EEOC has actually been more active in pursuing sex orientation claims,” Nadir said. ADA: Nadir also explained that employees should be proactive when an employee has an obvious disability, even if the employee has not acknowledged it. It’s a sensitive topic that can be difficult to address. While employers have a duty to reasonably accommodate a disability, they should not ask an employee about it until there is an issue that causes the disability to effect the employee’s ability to do the work, Nadir said. For example, Keneally said a client employer had an employee who was diagnosed with cancer and was undergoing chemotherapy and radiation treatment, but she never directly revealed her condition to her employer, she didn’t miss work and her performance remained excellent. But during a conference call, when the employee was working outside the office, her employer could hear background noise that clearly revealed she was in a hospital receiving treatment. Because of her location, the employee said she was unable to check her email as requested during the call, and that limitation on her ability to perform her duties gave the employer an opening to discuss the problem and work out an accommodation, even though she tried to keep her medical condition to herself. Cyber security: Shoemaker told the audience cyber security breaches are becoming common in workplaces and employees are the weakest link in the computer security system. It’s not unusual to find an employee’s username and password on a Post-it note stuck to the edge of a computer screen in many offices. And many employees now use their personal cell phones, laptop computers and other electronic devices for work, which means their employer’s data may be vulnerable if the security on those devices, which the company has little control over, is inadequate. Shoemaker posed the question: “Do they know what to do if their device is lost or stolen?” All electronic devices should be password protected and employees should change passwords frequently. “It’s so easy to look over someone’s shoulder and figure out what their password is,” Shoemaker said. But Keneally noted that it’s virtually impossible to make your electronic systems 100 percent impenetrable. But your defenses should be at a level considered “consistent with your industry and your competition.” “You need to see where you fit on that range,” he said. Health care operations, for example, with lots of very personal information about clients, will likely require some of the highest-level protections, while a restaurant business usually won’t need as much. “Make sure you think about it. You can’t just say I’ve got a 15-person business, I don’t need to do that,” Keneally said. On-call shifts: Schoemaker reminded the audience that the New York State Attorney General’s Office is “taking a close look at policies requiring workers to be ready to report to work if necessary.” Forcing employees to be ready to report limits their ability to make plans in their personal life. Even answering work-related emails or phone calls after hours “are situations where employees need to be paid.” But employers can establish policies prohibiting workers from dealing with emails and calls after hours and discipline employees who do so, although the employee must still be paid for that time. Paid family leave: New York state’s proposed paid family leave law won’t be limited to companies of a certain size. “This one opens everybody up to paid leave,” Shoemaker said. The proposed law would start on April 15 with a weekly paycheck deduction of 60 cents. Leave would start in 2018 with a benefit of 35 percent of the average New York state wage, which is currently $1,266. In 2021, the weekly deduction would increase to $1.09 and the benefit would increase to half the state’s average weekly wage. 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.

Readers of a certain vintage may recall this TV commercial from back in the day: An auto mechanic who has clearly seen it all gives advice from under the hood about the need to replace your oil filter on a regular basis. His point is that if you spend $4 on an oil filter to keep your engine clean, you could avoid spending $200 (OMG!) on an engine job later. He rolls out from under the car to deliver the punch line: “The choice is yours. You can pay me now, or you can pay me later.” Check it out on YouTube. I think of that commercial when consulting with a client involved in a dispute over control of a closely-held business - whether a corporation, LLC or partnership. As a business litigator, I usually get involved long after the time when the legal equivalent of an oil filter replacement should have happened. Of course, it’s not a perfect analogy, because the lawyer who gets paid later – the litigator – is often not the same lawyer who could have done the proper maintenance in the first place. But the economic effect on the client is proportionate. When people get together to start a business, or inherit or buy an ownership interest in a business, optimism and excitement often overpower pragmatism. After all, why bring what might be perceived as negativity or adversity into the mix when the future looks so bright? The answer is: because people and circumstances change; both success and struggle affect the owners’ views of their respective contributions and entitlements; owners may have legitimate but conflicting opinions on strategy or day-to-day business decisions; and, sometimes, people get greedy or turn into crooks. Particularly in negative control situations (where the adverse parties each have 50% of the ownership), opportunities for nightmare scenarios abound. Deadlock, freeze outs, oppression, waste and misappropriation can lead to litigation involving, depending upon the type of entity, requests for dissolution or expulsion, or the assertion of derivative claims in the name of the entity against the alleged offender, often accompanied by a request for the appointment of a receiver to protect the entity’s assets. This type of litigation tends to be costly and is not quickly resolved. The client involved in a “business divorce” case must also endure disruption to the business, including impacts on operations, employees, customers and vendors, as well as the stress and intense emotions almost inevitable when a long-term, and at least cordial, relationship sours and accusations of misconduct or dishonesty start to fly. There is no preventative maintenance that will guarantee that business owners who are “equal partners” will not have problems down the road. However, there are numerous things that owners can do at the formation stage to reduce the likelihood of litigation, and its attendant high cost, in the event of a future conflict that could lead to the termination of their relationship. While not an exhaustive list, experience teaches that the following precautions are critical. First, each owner should have her own lawyer. People often think this is a waste of money, but remember the mechanic’s advice. An experienced lawyer will give sound advice, and knows how to negotiate necessary terms without making things personal. Second, the owners should have a written agreement. A writing spells out the rules of the road and greatly reduces the likelihood of conflicting understandings and recollections that might destroy a handshake agreement. In the absence of a written agreement, the owners’ relationship will be governed by case law or by default to statute (particularly if an LLC is involved), and they may find that their rights and remedies are much different than they thought they were. Third, keep in mind that negative control means that when the owners are not in agreement, no action can be taken. Some people might prefer this outcome, but such deadlocks often impair productivity. Therefore, the written agreement should address decision-making processes. Who has final say? In a corporation, who is the president and what is her authority? In an LLC, who is the manager and what decisions can he make without the consent of the other member? Is there a tiebreaker mechanism to prevent management paralysis? These are not easy questions, but it is better to ask them at the outset than to deal with the ramifications later. Fourth, the agreement should reflect an exit strategy. Terms for the buyout of an owner wishing to leave the business (or sell to a third party) should be included, keeping in mind that the business would not likely be in a financial position to make a lump sum cash payment to the departing owner for her 50% ownership interest. Price and payment terms should also be negotiated. In addition, while New York statutes address the non-judicial and judicial dissolution of corporations, LLCs and partnerships, business owners have some room to establish grounds and voting procedures for dissolution, thereby taking as much control as possible over the process. This is an especially important issue for LLCs, because the New York LLC statute sets a high and narrow bar for judicial dissolution. Last, consider that in many closely held entities, the owners also work for the business and it is their primary source of income. The written agreement should accordingly address: the owners’ salaries and other compensation (and who decides what that compensation will be); whether an owner can have her employment terminated, and if so, by whom and on what grounds; and, in the event an owner has her employment terminated, and that termination does not trigger an owner’s obligation to sell her interest in the entity, how that owner will receive compensation for her ownership interest in the future. 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.

Paul Keneally and Margaret Somerset have been named practice group chairs at Underberg & Kessler LLP. Mr. Keneally will now chair the Firm’s Litigation Practice Group, as well as continuing to chair the Labor & Employment Practice Group.  As a partner in the Firm, Mr. Keneally concentrates his practice in complex commercial and construction litigation, labor & employment law advice and litigation, insurance defense, and tax assessment and other municipal matters. Ms. Somerset, partner, will chair the firm’s Health Care Practice Group.  She focuses her practice in the areas of medical malpractice defense, regulatory compliance, professional medical discipline, and medical risk management. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

As family law practitioners, we see it time and time again. Let’s set the scene: You meet with a new client for a divorce consultation. The client is confident in her knowledge of divorce law based on comparing notes with her friend/brother/parent/cousin’s co-worker who got divorced and told her all about their experience. The new client also has done extensive Google searching on the topic. As we begin to discuss the New York state laws of child custody, child support, spousal maintenance and equitable distribution, the client becomes more and more surprised about the potential outcomes based on the facts of her case. The outcomes are not always as positive as the client expected. As attorneys, it is not enough to inform clients of the positive aspects of their pending litigation. Two of the most important aspects of our job are managing client expectations and being honest about how the law applies to the facts before us. These are not always the easiest tasks, given the emotional state of a client about to embark on the journey of divorce. I have compiled a list of the top misconceptions I hear from divorce clients for our review: Misconception 1: The mother always has an advantage in child custody cases. Gone are the days of the “doctrine of tender years,” which favored the mother in child custody determinations. The courts have held that “an award of custody must be based upon the best interests of the child, and neither parent has a prima facie right to custody of the child,” Friederwitzer v. Friederwitzer, 55 N.Y. 2d 89, 93, 447 N.Y.S.2d 893 (1982), Goldfarb v. Szabo, 130 A.D. 3d 728 (Second Dept. 2015), Domestic Relations Law §240, Domestic Relations Law §70. In fact, many judges are using shared residency as a starting point in negotiations and asking why it wouldn’t be appropriate. What is more important is the role that each parent has played in the child’s day-to-day routine, medical treatment, activity participation and education, not whether they are mother or father. Misconception 2: If the child refuses to visit with the other parent, it is the child’s choice and I cannot make the child go. The Court of Appeals has held that “It is important for the court to consider the desires of each child, but this is but one factor to be considered; as with the other factors, the child’s desires should not be considered determinative,” Eschbach v. Eschbach, 56 N.Y.2d 167,171 (1982). While courts have given great weight to the considerations of children ages 14 and older in custody disputes, it is important to note that the child’s wishes alone are not what the court will rely on when deciding custody, see Cannella v. Anthony, 127 A.D.3d 745 (Second Dept. 2015); Burke v. Cogan, 122 A.D.3d 625, 997 N.Y.S.2d 141 (Second Dept. 2014); Cheney v. Cheney, 118 A.D.3d 1358 (Fourth Dept. 2014). Notably, one of the factors the court heavily weighs in custody determinations is which parent is more likely to foster a meaningful relationship between the child and the non-custodial parent, DiMele v. Hosie, 118 A.D.3d 1176 (Third Dept. 2014); Alvarez v. Alvarez, 114 A.D.3d 889 (Second Dept. 2014). If a client is obstructing the child’s visitation, bad mouthing the other parent in the presence of the child or failing to take steps to encourage the visitation, that parent is putting himself or herself at risk. Clients need to know that they must actively encourage the child to go on the visits in any way possible. If not, the wrongdoing parent may pay the price by losing custody. Misconception 3: If the other parent and I share child residency on a 50/50 basis, then no one pays child support to the other. The Court of Appeals makes it clear in Bast v. Rossoff that in a shared custody case, child support should be calculated using the three step statutory formula set forth in the Child Support Standards Act, with the greater-earning parent being considered the “noncustodial” parent and paying child support, Bast v. Rossoff, 91 N.Y.2d 723 (1998). The court holds that “if the trial court is satisfied that the amount of the basic child support obligation is ‘unjust and inappropriate’ because of the shared custody arrangement, the court may utilize the statute’s paragraph (f) factors to fashion an appropriate award,” Bast v. Rossoff, 91 N.Y.2d 723, 732 (1998)[emphasis added]. Clients need to know that child support will be calculated as in any other case, and that it is discretionary whether the court will deviate from the statutory amount of child support. Misconception 4: We have kept separate bank accounts throughout our marriage. My spouse is not entitled to the accounts in my name. The courts have held that “property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute was separate property,” Swett v. Swett, 89 A.D.3d 1560 (Fourth Dept. 2011); Teraska v. Teraska, 124 A.D.3d 1242 (Fourth Dept. 2015). Property acquired by gift or inheritance or obtained prior to the marriage and not comingled with marital assets are examples of separate property, see Teraska v. Teraska, 124 A.D.3d 1242 (Fourth Dept. 2015), Antinora v. Antinora, 125 A.D.3d 1336, 3 N.Y.S. 3d 500 (Fourth Dept. 2015). Clients are shocked to hear that “their money” on deposit in a bank account in their name alone is not separate property if funds in the account were earned during the marriage as wages from employment. These are just some examples of the misconceptions with which new clients walk into our office. Attorneys need to be prepared to disappoint clients who come in with incorrect notions of the law and unrealistic expectations regarding their case. What the general public doesn’t know could hurt them. 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.

Underberg & Kessler LLP has been named a 2016 Rochester Tier 1 “Best Law Firm” by U.S. News - Best Lawyers®. The firm’s real estate, municipal law and corporate 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 a ranking 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. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

My medical partners and I are exploring whether to use telemedicine to handle “call ins” and after hours calls with our patients. What are some of the issues we need to be sure to address? A new law, which became effective on January 1, 2015, requires that telehealth visits be reimbursed at the same rate as in-person visits. Deductibles and co-insurance for telemedicine must not be different than in-person visits. This has cleared the path for a more robust use of telemedicine throughout New York State. As today’s consumers continue to want “faster, better, more” service in their lives, telemedicine is coming as an avalanche. Beth Israel Medical Center in New York City offers “Teladoc” – its website boasts: “If you live, work or are traveling in New York, now you can take advantage of a unique health solution offered by Beth Israel. Teladoc offers 24/7 on-demand telehealth consultations via phone or on-line video with board certified physicians…”. The Office of Professional Medical Conduct’s Special Committee on Telemedicine (SCT) previously issued an ethical statement that presents the major areas to be addressed before you incorporate telemedicine into your practice. (1) The SCT ethical statement clearly provides that all “the current standards of care” of a medical practice apply. If the patient receives “professional advice or treatment,” then the physician-patient relationship is created. Once a physician patient relationship is established, the physician has a duty of care to the patient, which includes providing quality care or seeing that there is a reliable provision for care. Arranging for the follow-up care is included. It is the patient’s location that determines where the care is delivered. If the patient is anywhere in New York, the professional must hold a New York license. (2) The physician must somehow identify himself and his license/certification to the patient, as is required in an office setting. Also, the physician must document the visit in a medical record (electronic or paper) with the usual requirements: symptoms, evaluation and analysis, plan of care, etc. Failure to maintain an adequate and confidential record of patient visits is considered professional misconduct and is an almost routine misconduct charge brought by the OPMC against individual physicians. Physicians must understand some of the inherent risks in treating patients without their physical presence. Knowing when to require the patient to be seen, whether in the office or another setting, will be of utmost importance. Once the patient is advised of the risks of not being seen, documenting the patient’s refusal will be critical from a liability standpoint. Treating patients through the use of telemedicine is the wave of the future. Proper planning of coverage issues, confidentiality of design and content, and medical record documentation is a must. 1 For a complete copy of the statement, go to: www.health.ny.gov/professionals/doctors/conduct/telemedicine.htm 2 There are minor exceptions to this rule contained in N.Y. Education Law §6526. Download the Reprint from The Aug/Sept 2015 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

A fresh analysis of establishing causation A recent decision in New York County may significantly alter how asbestos cases are prosecuted and defended in New York. In a 40 page opinion in Juni v. A.O. Smith Water Products, et al. (Index No. 190315/12), Supreme Court Judge Barbara Jaffe held that an asbestos or other toxic tort plaintiff must quantify their exposure in some objective scientific manner to establish causation. Judge Jaffe also rejected the single exposure theory (i.e., that a single exposure is enough to establish causation without considering whether additional exposures occurred) as irreconcilable with the well-recognized scientific requirement that the amount, duration and frequency of the exposure be considered in assessing the sufficiency of an exposure in increasing the risk of developing a disease. The plaintiff in Juni was a mechanic for the entirety of his working life, performing all activities associated with that field, including changing brakes, replacing clutches, removing parts of the engine and cleaning up after the various work was completed. The plaintiff and his wife brought suit alleging that Juni developed mesothelioma after being exposed to asbestos from brakes, clutches or gaskets sold or distributed by defendant, Ford Motor Company. After trial, the jury rendered a verdict finding that: (1) Juni was exposed to asbestos from brakes, clutches or gaskets sold or distributed by Ford, (2) Ford failed to exercise reasonable care by not providing an adequate warning about the hazards of exposure to asbestos, and (3) Ford’s failure to warn Juni was a substantial contributing factor in causing his injury. The jury found that Ford had acted recklessly, and awarded $8 million for pain and suffering, and $3 million for loss of consortium. In setting aside the verdict, Judge Jaffe initially determined that plaintiff had failed to demonstrate causation between the alleged exposure and Juni’s mesothelioma. She noted that in order to establish that Ford’s failure to warn plaintiff adequately of the dangers of exposure to asbestos was a substantial factor in causing his mesothelioma, plaintiffs were required to prove not only that his mesothelioma was caused by his exposure to asbestos, but that he was exposed to sufficient levels to cause his illness as a result of his work on brakes, clutches, or gaskets sold or distributed by Ford (citing on Parker v. Mobile Oil Corp., 7 N.Y.3d 434 [2006], and Cornell v. 360 West 51st Street Realty LLC, 22 N.Y.3d 762 [2014]). Judge Jaffe found that plaintiffs were seeking to be relieved of the burden of establishing some quantifiable level of exposure, and instead asking the court and jury to assume that plaintiff’s mesothelioma “must” have been caused by exposure to asbestos contained in brakes, clutches or gaskets. Judge Jaffe noted that, as in Parker, the plaintiff offered evidence through his experts that there is no safe level of exposure to asbestos. However, the simple fact that mesothelioma is only caused by exposure to asbestos does not dispose of the issue of whether a defendant’s product caused the mesothelioma. She explained that it is not the association between mesothelioma and asbestos that is at issue when determining causation, but rather whether a defendant may be held liable for causing a plaintiff’s mesothelioma. This necessarily depends on the sufficiency of the exposure, if any, to asbestos in the defendant’s product, and whether that exposure is capable of causing mesothelioma. Judge Jaffe held that absent evidence of the amount, duration or frequency of plaintiff’s exposure to asbestos-containing dust from brakes, clutches or gaskets sold or distributed by Ford, plaintiff had not established a dose-response relationship, or otherwise even minimally quantified plaintiff’s exposures. She also noted that plaintiff failed to use any other method identified by the Court of Appeals in Parker and Cornell to express plaintiff’s exposure scientifically (for example, estimating his exposure through mathematical modeling by taking into account his work studies). As such, plaintiffs failed to establish causation. Plaintiffs alternatively relied upon the single exposure theory, arguing that evidence that plaintiff was regularly exposed over many years to asbestos contained in brakes, clutches or gaskets sold or distributed by defendant rendered a quantification of his individual exposures unnecessary. Judge Jaffe noted that the assertion that every single exposure to asbestos constitutes a “significant” contributing factor is irreconcilable with the well-recognized scientific requirement that the amount, duration and frequency of the exposure be considered in assessing the sufficiency of an exposure in increasing the risk of developing a disease. In other words, the risk of developing a disease increases or decreases depending on the nature of the exposure, which depends on the amount, duration, and frequency of the exposure. Judge Jaffe also noted that plaintiffs failed to offer sufficient evidence that any specific exposure increases the risk of a disease, and thus is a significant contributing factor to causing the disease. She also cited a number of decisions from other jurisdictions rejecting the single exposure theory. Although the decision in Juni has not been affirmed or addressed by an appellate court, the well-reasoned opinion provides an insight as to how courts may treat evidentiary issues in toxic tort cases going forward. Assuming Juni is affirmed, a toxic exposure plaintiff will need to quantify his or her exposure in some scientific way, and will no longer be permitted to rely on the single exposure theory 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.

As providers, we are being asked to improve our communications with each other and family members about the patients we serve in common as they move from one care setting to another. Are there any legal issues we should be aware of as we seek to increase both the degree and timeliness of our contacts with others on our patients’ care teams? Two issues have arisen in connection with communications in these situations. First, as a covered entity under HIPAA, you must give your patients or their representatives the opportunity to restrict the disclosure of protected health information to named individuals. Patients are permitted to include other providers in their restrictions, even for treatment purposes. Patients also often ask that their protected health information not be provided to certain family members whose role in assisting patients through care transitions can be crucial. That said, as the patient’s physician, you are not obligated to consent to a restriction request, especially when it pertains to treatment purposes (as opposed to payment or health care operation purposes). We suggest that you ask patients who request such restrictions why they want them, and tell them that you may, under HIPAA, refuse to honor their requests. It is recommended that you explain your reasons for a refusal. Second, once you are ready to start communicating with a family member involved with the patient’s care, you should ask how s/he wishes to hear from you. Text messaging may be the family member’s first choice. If it is and you are willing to communicate with him or her in that manner, you must first obtain consent from the patient or the patient’s representative to do so. In order to obtain informed consent, you should explain to the patient or representative that under current technology, text messaging is not secure and may be intercepted by others. There are currently no viable encryption methods that can make text messaging secure. Thus, you should try to eliminate or minimize the amount of protected health information in any text message you send. Warn the family member that your messages may be as terse and uninformative as the old-fashioned pages: “Please call Dr. ______ at (585) xxx-xxxx”, without even mentioning the patient’s name. If it is necessary to include patient protected health information or, more likely, the family member opts to respond with a text message asking for more information and mentions the patient’s name, to reduce your risks under HIPAA’s Security Rule, you should limit who within your practice will be involved in sending and responding to text messages and also ask your cellular carrier if it is willing to sign a business associate agreement so that the carrier will be obligated to inform you if there is any breach of its text messaging systems that may result in the unauthorized access to your patients’ protected health information. These considerations apply to communications between covered entities as well. Text messages sent to another physician or other health care provider are equally as unsecured as text messages sent to patients or their representatives. Download the Reprint from The May/June 2015 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Federal and state employment laws protect transgender people from discrimination and harassment in the workplace. Many employers may not know what to do if an employee tells his/her employer that he/ she is transgender and will start dressing and identifying as a different gender in the workplace. It is important to take some proactive steps to make sure the employee is treated lawfully during any transition, and does not face discrimination or harassment due to any change or to his/her transgender status generally. It is also important to prepare and train the employee’s co-workers for the situation. Certain topics should be discussed with the employee to ensure he/she is not discriminated against or harassed at work, and to understand how the change will be handled. Specifically, talk to the employee about the following: • Discuss the employee’s transition process with him/her generally, so that the employer knows what to expect. The employer should not demand specific medical information, but should have a basic awareness of what changes may occur and when, in order to plan for how to respond to those changes or any questions. • Find out if the employee will be undergoing a name change. If so, employment documents should be changed to that name when the employee so chooses. Also make sure that the employee has an opportunity to change any photo identifications required to reflect the identified gender. • Talk to the employee about his/her preference on how and when co-workers should be informed, and what information co-workers should receive. The employee may want to minimize the number of people aware of the transition or may want to be more open about the process. While not strictly obligated to follow the employee’s requested schedule, it is advisable whenever feasible. • The employee should be able to use the restroom of the gender with which he/ she identifies. If the employee prefers a gender-neutral option, this should be provided if not an undue burden financially, but the employee should not be required to use a gender-neutral restroom unless that is the policy for all employees. • Discuss how the employee’s customers or clients should be informed, if that is advisable, or how their questions should be answered. • Discuss expectations with the employee regarding potential conflicts and difficult conversations. • Designate either a supervisor or a human resources professional (and a back-up) to be the employee’s primary resource for any problems, concerns or complaints of harassment or discrimination. Certain actions should be taken within the company as well to ensure the transition is as smooth as possible. • Review current employment policies to make sure that gender identity is included as a protected category in the equal employment, non-discrimination and nonharassment policies. • Make sure the employment policies clearly indicate that the employer welcomes all employees. • Include transgender topics in regular (at least annually) employee training on discrimination and harassment. • At a minimum, conduct training on transgender topics for the employee’s primary supervisors. Determine if any other management employees should be included in the training. • Ensure there is no dress code that applies certain rules to one gender but not to the other. • Consider a joint meeting with HR, the employee’s primary resource, the employee and his/her supervisors to discuss questions or concerns. • The employee’s co-workers should be informed about the gender transition to the extent feasible under all of the circumstances, with due consideration of the employee’s wishes. This notice, if given, should cover the behavior the employer expects from the co-workers, as well as an update on company policy, including non-harassment and non-discrimination policies. It is recommended that the employee not be present at such a meeting so that co-workers will feel comfortable asking questions. • Keep up with personnel paperwork if the employee decides to legally change his/her name and/or gender in the future. • Immediately begin changing your pronoun use for the employee and require other employees to do the same. Employment law issues, like those relating to transgender employees, should be handled in consultation with competent employment law counsel. Download the Reprint from Rochester Business Alliance As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Leah Tarantino Cintineo has been named one of the 2015 “Up & Coming Attorneys” by The Daily Record. The Up & Coming Attorney award winners demonstrate a strong commitment to the legal profession early in their careers. To be considered, nominees must be admitted to the bar for 10 years or less. Leah is an associate in Underberg & Kessler’s Litigation Practice Group, where she represents clients in family law matters, as well as serving as a court-appointed Attorney for the Child, representing children in child custody, divorce, family offense and juvenile delinquency proceedings.  She is an active member and leader of the Monroe County Bar Asociation's Young Lawyers Section Board, and also volunteers with the Rochester Teen Court through the Center for Youth. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

This spring, I was invited to present at a symposium on ethics in negotiation. Given recent headlines relating to lawmakers’ conduct, it felt like a good, timely opportunity to reflect on the importance of lawyers adhering to ethical and other professional standards. This article reviews a few schools of bargaining ethics and considers a few alternatives to lying in a negotiation setting. A Lawyer’s Instructions to Settle Lawyer is defending Seller in an action in which Buyer seeks the return of a $15,000 deposit made in a purchase transaction. Issue is joined. In Lawyer’s analysis, there is an honest disagreement about whether an extension of time to complete an inspection was granted. Seller insists that none was given and Buyer’s deposit was forfeited. Buyer insists the extension was requested and granted. Lawyer has shared with Seller her analysis that Buyer’s claim is weak. Lawyer advised Seller that the anticipated legal defense costs will exceed $7,500. Lawyer also explained that without a prompt settlement and assuming Lawyer wins the best possible result for Seller, which is judgment in favor of Seller in the amount of $15,000, Seller will, at best, net $7,500 after litigation expenses are paid. After consideration, Seller makes a business decision, calls Lawyer and instructs Lawyer that she is authorized to inform Buyer that Seller will agree to split the deposit 50/50 to resolve the matter promptly. Lawyer hangs up with Seller and considers how best to approach Buyer’s counsel with this information. Lawyer has not yet spoken with the other side. Lawyer wonders, is it acceptable to tell Plaintiff’s counsel that Seller won’t settle for less than $10,000, when in fact, Seller’s counsel knows Seller will accept $7,500 to end the matter? Lawyer very much wants to act confidently and ethically at the bargaining table. What tactics can and should Lawyer use? Ethical Thinking The negotiation tactics that Lawyer in this hypothetical may employ are likely to align with one of three Schools of Bargaining, which were identified by R. George Shell, Wharton School Professor of Business Ethics and Negotiation. These schools are the Poker School, the Idealist School and the Pragmatist School. • The Poker School: Negotiators who come from the Poker School argue that bluffing and other misleading but lawful negotiating tactics are integral to the bargaining game and those who fail to master the techniques do so at their own risk. Although those who adhere to the “It’s a Game” school of philosophy in negotiation admit that poker and negotiations are not exactly the same, they point out that deception is essential to being effective in both arenas. For the Poker School, negotiations have certain set rules: One side opens with an offer, then the other side responds with each side taking turns proposing terms. Supporting arguments are permitted. One can play or pass in each round. One side achieves a win when the other side agrees to terms that are as close as possible to terms of one’s last proposal. In this game, each side understands the other may be bluffing. Those with experience know that a key skill is knowing when the other side’s alternatives are as good as he or she claims. If your bluff is called, you lose: The final terms will be nearer to the other side’s offer than to yours. Fraud is not permitted but there is an expectation that some level of deception will occur. Here, the very best plays come when one side wins the pot with a weak hand or fools the other side to bet heavily when your side holds the winning cards. While the lawyers following the Poker School’s standards believe everyone is supposed to know and supposed to follow all of the rules, this is simply impossible and can lead to discord among participants. • The Idealist School: Idealists reject the idea of treating negotiation as a game, but rather treat bargaining as an aspect of social life and believe it should not be treated as a separate activity with its own set of rules. Those in the Idealist School believe that simply because the fact that lying can be defended does not make deception in negotiations right. Idealists find members of the Poker School to be selfish and predatory. Poker School adherents believe idealists are naive or a little silly. • Pragmatist School: Those in the “what goes around, comes around” school have some views in common with the Poker School – pragmatists view deception as a necessary part of the negotiation process. However, pragmatists differ in that they will not use overt lies or misleading statements if there is a serviceable and practical alternative. The pragmatists are concerned about the negative effects of deceptive conduct on present and future relationships and have an unfavorable view on the use of questionable tactics as they can have adverse consequences in the long run (i.e., damage to reputation or credibility over time). Pragmatists tend to bend the truth more so than will an idealist. Lawyer’s Opening Strategies Here, Lawyer has a variety of tactical options she can employ. She might first ask Buyer’s counsel to explain his theory of the case and advise what strengths or weaknesses Buyer sees. In the alternative, Lawyer might ask her client to limit her settlement authority, which would allow Lawyer to perhaps test Buyer’s willingness to split the deposit and also measure Buyer’s willingness to get bogged down in a lengthy or drawn-out matter in court. Another method to avoid dishonesty might be to rely on a client’s board vote for settlement authority. Blocking Techniques If, during the negotiations, Lawyer is on the receiving end of aggressive questioning from Buyer’s attorney which, if answered, would damage her leverage, Lawyer would be well served to employ one or more of a variety of blocking techniques. A few techniques that should be relied upon are to postpone (delay the conversation by asking to revisit the matter at a later date), or dodge the question (if pressed for a bottom line number, Lawyer could respond by saying: “the more important question is whether we are going to receive a counter-proposal from [Buyer] -- and when”). Finally, Lawyer can fall back on limited or restricted authority (Lawyer can have the client restrict her settlement ability to $10,000 for the initial conversation with opposing counsel; in this way, when Lawyer is asked if she will accept $8,000, she can truthfully respond “I can go back and ask but I can’t agree to accept that number, today”). Conclusion There are many ways to negotiate a winning position without relying on dishonest or unlawful tactics. In this hypothetical, Lawyer is fully aware that relationships and her reputation in the community matter a great deal. Lawyer has already taken an affirmative first step to evaluate the likelihood of her client’s success early in the case and she has let her client consider its bottom line analysis even in the best case scenario in the early stages. We should be reminded that good results can be achieved when engaging ethical strategies in negotiation. 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How will I compete with Walmart? Walmart’s recent announcement that it intends to offer low cost ($65) primary care visits in the convenience of their 10,000 stores with no appointments necessary will present difficult issues for physicians, not the least of which is: “How will I compete with Walmart?” While Walmart’s clinics are not yet here, we can expect them to push into New York once they have polished their operational model in other states. The new Nurse Practitioners Modernization Act (NPMA) in New York State also creates the likelihood that Nurse Practitioners will also be opening their own primary and specialty care offices that compete with physicians. This new statute could place Nurse Practitioners (NP)s in competition with physicians for primary and specialty care. By maximizing the use of advanced practice providers, a physician can sustain him- or herself in this newly competitive environment. Retail medical clinics operated in local pharmacies are not new, but Walmart and CVS plan to expand the concept significantly. Walgreens and CVS have been offering blood pressure testing and immunizations for years, and have more recently added treatment for sinus, ear or upper respiratory infections. These retailers are stepping into a sweet spot of medical care where studies show that retail clinics are popular among young, healthy adults with upper incomes that place a high value on their time. At the retail clinics they are able to seek minor primary care, relatively quickly and without an appointment. Walmart started its entry to primary care in Texas and South Carolina, where there are high rates of obesity, smoking and other chronic conditions, as well as high numbers of uninsured residents. Walmart expects to expand its clinics to the rest of the country once they have streamlined the model. Walmart also expects to expand the services of on-site clinics beyond those traditionally offered at drug stores. In a partnership with Quad Med, Walmart plans to treat more serious conditions like HIV, diabetes, arthritis and clinical depression. Until recently, traditional care givers have regarded these clinics as a threat to their business models and have criticized the lack of close supervision and the inability to provide comprehensive, integrated medical care. However, there has been a subtle shift toward recognizing the possibility of partnerships between primary care providers or hospitals and these retail clinics to: (1) refer lower acuity cases to retail clinics to manage the increased demand associated with a higher number of insured patients seeking access through the Affordable Care Act; (2) reduce the risk of re-admissions; (3) reduce the cost of lower acuity services; (4) offer more convenience to their patient base; and (5) access new patient groups within the community. To remain competitive in this changing environment, primary care physicians can better educate their patients and offer more convenience and reduced costs to their patients through the use of advanced practice providers. For example, to help patients manage their health care costs, physicians can teach them how to reduce their expenses – preventative care; annual check-ups; healthy habits at home; seeking medical attention sooner rather than later for acute problems; and encouraging them to rely upon advanced practice providers when appropriate. To make offices more convenient, physicians should consider offering evening or weekend appointments with advanced practice providers. A physician may collaborate with NPs in two different ways to expand services to their patients. The first and more traditional collaboration has been the collaborative agreement, where a physician can employ and collaborate with up to four NPs that are not located at the same premises as the physician. The second, more recent, manner of expanding services is through “collaborative relationships” with NPs.1 2 3 A physician may have collaborative agreements with no more than four NPs who are not on the same site as the physician. Presently, the new NPMA does not contain language imposing the same limitation on the number of off-site collaborative relationships that a physician may have. The services of an NP can be offered at a lower cost per visit and the physician can also offer patients the convenience of alternate locations and hours staffed by NPs. An NP can write orders for medications, diagnostic and laboratory testing, and make referrals to other subspecialists without physician approval. NPs who have been practicing for less than three years and 3,600 hours with whom the physician collaborates must be supervised with periodic reviews of the NPs charting and written collaborative practice agreements are required.4 For collaborative relationships written guidelines for practice are required.5 Co-signing a collaborating NPs notes is not required, but is recommended. Collaboration with a physician’s assistant (PA) is also a good way to extend office hours into the evening for the convenience of your patients. PAs are permitted in New York State to perform medical services under the “continuous” supervision of a physician, so long as the duties assigned to the PA are within the scope of practice of the supervising physician. The physician is not required to be physically present at the office when the PA provides the services, but the PA is not permitted to practice independently. The physician must be immediately available at all times to consult on patient matters.6 No practice agreement is necessary and there is no requirement for periodic chart reviews. Orders for labs and diagnostic testing need not be co-signed by a physician, but orders for prescriptions are different.7 A PA may not write scripts for certain controlled substances. As with an NP, we recommend that the supervising physician co-sign and date the notes and orders written by the PA. Additional Thoughts on Advanced Practice Providers It is critically important that the supervising physicians have a thorough understanding of the billing requirements for Medicare and Medicaid and private insurance companies as they relate to advanced practice providers. Even though the goal may be to maximize profitability while reducing costs for the patient, the practice also wants to avoid the risk of claims denials or audits. Supervising and collaborating physicians should also be cognizant of the scope of liability for claims of medical malpractice by their advanced practice providers. Make sure that both the PA and NP carry sufficient coverage and that the physician’s carrier is on notice of the use of the advanced practice providers in the practice. The malpractice carrier for the physician may also offer coverage for the advanced practice providers and this should be considered as well. We recommend that any employment, collaborating or supervising agreements be carefully reviewed by an attorney experienced to practice in that field. As you tell your patients, an ounce of prevention is worth a pound of cure. References 1 Effective January, 1, 2015, New York State provided for more independence for NPs with the passage of the Nurse Practitioners Modernization Act (NPMA). Under the terms of this Act, experienced NPs who have more than three years and 3,600 hours of practice experience are no longer required to engage in written collaborative agreements with supervising physicians, but are still required to have written collaborative relationships with a physician or group of physicians or hospital(s). 2 The collaborative agreement must reflect the NP’s acknowledgement that if reasonable efforts to resolve any dispute with the collaborating physician about a patient’s care are not successful, the recommendation of the physician will prevail. 3 A Collaborative Relationships Attestation Form must be filed with the NYS Dept. of Education and must be made available to the patient upon request. The form is available at the NYS Dept. of Education website http://www.op.nysed.gov/prof/nurse/np-npcr.pdf. 4 A collaborative practice agreement must establish practice protocols which: (1) reflect the current standards of care for the physician and the NP; (2) the scope of supervision; (3) the system for referrals to and consultations with the supervising physician; (4) the method of coverage for each in the event of the absence of either; (5) the method for resolution of disagreements between the collaborators; and (6) sets the periodic review of patient records by the supervising physician, no less than every three months. 5 A collaborative relationship between an NP and a physician shall include written guidelines for practice that provide for the criteria to be used regarding consultation, including methods and frequency of how consultation shall be provided, and the parameters for collaborative management and referral (including emergency referral plans) which address the health status and risks of patients. The written guidelines for practice shall reflect current accepted medical and nursing practice and shall be filed with the NYS Dept. of Education, along with an attestation by the NP identifying the physician, physicians, or hospital that have agreed to participate in the collaborative relationship pursuant to such written guidelines, within 90 days of the commencement of the practice. 6 A physician may be available by telephone or in person, or other reliable means. 7 Prescriptions must be written on the supervising physician’s prescription form, be signed by the PA first by printing the name of the supervising physician then printing the name of the PA, and then signing the prescription form followed by the designation “RPA” together with the PA’s registration number. Download the Reprint from 'The Bulletin' of MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.