We are happy to announce that Anna E. Lynch , partner in the Health Care  and Corporate & Business  practice groups, has received the 2024 Icon Honors award. Established in 2017, the Icon Honors award recognizes Rochester business leaders, over the age of 60, for their notable success and demonstration of strong leadership both within and outside of their chosen field. The honorees have a long-standing commitment to the Rochester business community and significant professional accomplishments through innovation and leadership. Anna was honored at an awards ceremony on December 16th at the Genesee Valley Club. Anna, who also served as Managing Partner at Underberg & Kessler for 17 years, represents hospitals, long-term care providers, physicians and other providers throughout the Upstate New York region. She gives advice and counsel on risk management and patient care, professional discipline, and state and federal regulatory compliance, and contractual matters. Anna is Vice-Chair of Rochester Regional Health's Board of Directors and is a member of its Executive Committee. She also serves on the Board of Directors of St. Ann's Community. She is a member of the Monroe County Bar Association and the Greater Rochester Association for Women Attorneys (GRAWA). Anna is past Chair and a Board member of St. John's Home Foundation, past Chair and a Board member of the Alzheimer's Association of Rochester, and a past Board member of Lifespan of Greater Rochester, Inc., Nativity Preparatory Academy, St. John’s Senior Living, and St. John's Home.

Several key employment law changes in New York have already taken effect or will begin in 2025. It’s essential for employers to stay informed to ensure compliance with these new requirements and avoid potential legal challenges. Paid Prenatal Care Leave Beginning January 1, 2025, New York employers will be required to offer 20 hours of paid prenatal care leave annually to employees. This leave can be used for any healthcare services related to pregnancy, including doctor visits, tests, and consultations. Employees are entitled to take this leave in hourly increments, and it must be available in full at the time of hire. This leave is in addition to any other paid leave benefits the employee may be entitled to, and it must be compensated at the employee's regular rate or the applicable minimum wage, whichever is higher. Employers should review and update their policies to recognize this new requirement, especially since the law protects employees from retaliation for taking the leave. Overtime Exemption Salary Thresholds Increases The New York State Department of Labor raised the salary thresholds for executive and administrative exemptions to overtime in 2023. The thresholds will gradually increase each year through 2026. Under Section 142-2.14 of NYS Codes, Rules & Regulations, employees who work in an “[e]xecutive” or “administrative” capacity and who are paid a “salary” not less than the thresholds set by state regulations may be exempt from the state’s overtime pay requirements. Current minimum salary thresholds for exempt executive and administrative employees: New York City and the rest of “downstate” (Nassau, Suffolk, and Westchester counties): $1,237.50 per week ($64,350 per year) on January 1, 2025 $1,275 per week ($66,300 per year) on January 1, 2026 The rest of New York State (areas outside of New York City and Nassau, Suffolk, and Westchester counties): $1,161.65 per week ($60,405.80 per year) on January 1, 2025 $1,199.10 per week ($62,353.20 per year) on January 1, 2026 Employers must assess whether their salaried employees receive at least these updated thresholds, as it impacts whether they are entitled to overtime pay. Minimum Wage and Tip Credit Increases Effective January 1, 2025, New York's minimum wage will increase for all employees (excluding home care aides and certain other industry employees). For New York City and the rest of “downstate” (Nassau, Suffolk, and Westchester counties) minimum wages will be $16.50/hour (increased from $16.00/hour). For the rest of New York State (areas outside of New York City and Nassau, Suffolk, and Westchester counties) the new minimum wage will be $15.50/hour (increased from 15.00/hour). Also, effective January 1, 2025, are changes to the tip credit for food service workers. In New York City and the rest of “downstate” (Nassau, Suffolk, and Westchester counties), the tip credit for food service workers will be increased from $5.35 to $5.50. For service workers, the tip credit will be increased from $2.65 to $2.75. For the rest of New York State (areas outside of New York City and Nassau, Suffolk, and Westchester counties), the tip credit for food service workers will be increased from $5.00 to $5.15, and the tip credit for service workers will be increased from $2.50 to $2.60. New York State Clean Slate Act New York’s Clean Slate Act (“Act”), which went into effect on November 16, 2024, limits the types of criminal convictions that employers can access and dictates how to handle the information they are made aware of when considering employment actions, such as hiring or continued employment. The Act amends New York Criminal Procedure Law Section 160.57 to require the New York State Unified Court System up to three years (November 16, 2027) to set up the required processes to automatically seal eligible conviction records. Once that work is complete, convictions that are eligible will be sealed for certain civil background check purposes. Convictions eligible for sealing include most misdemeanor and felony convictions however, certain convictions, such as sex offenses, sexually violent offenses, and non-drug-related Class A felonies, including murder, are not eligible for sealing under the Act. Misdemeanor convictions are eligible to be sealed three years after sentencing or three years after release from incarceration, whichever is later. Felony convictions are eligible to be sealed eight years after sentencing or eight years after release from incarceration, whichever is later. Employers who are required by state or federal law to conduct fingerprint-based criminal background checks are exempt from the mandate and will continue to have access to convictions otherwise sealed by the Act. Examples of exempt employers include those who provide childcare, eldercare, or care to individuals with disabilities. In any case, exempt employers have a legal obligation to safeguard information regarding otherwise sealed convictions and may be liable for negligence under the New York Civil Rights Law if they fail to adequately protect that information. Employers should be aware of this change as it may impact how they conduct background checks. However, law enforcement, courts, and certain positions requiring fingerprint-based background checks will still have access to the sealed records. Conclusion With these updates, New York continues to enhance employee protections and reshape how employers manage workplace policies. To avoid legal issues and ensure a fair and compliant work environment, employers are encouraged to update their policies and procedures in anticipation of these changes. By staying ahead of these new laws, businesses can better support their employees and maintain compliance with state requirements. If you have any questions about these updates or any Labor or Employment law issues, please contact our Labor & Employment team: Paul F. Keneally , 585-258-2882, pkeneally@underbergkessler.com Jennifer A. Shoemaker , 585-258-2825, jshoemaker@underbergkessler.com Ryan T. Biesenbach , 585-258-2865, rbiesenbach@underbergkessler.com

In a recent blog post ( click here to read ), we discussed that on December 3rd, the enforcement of the Corporate Transparency Act (“CTA”) had been temporarily suspended as a result of the Eastern District of Texas ruling that ordered a nationwide preliminary injunction. As anticipated, the U.S. Department of Justice issued a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit on December 5th, and the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) posted a statement to its website on December 7th confirming that it will comply with the federal court order as long as it remains in effect. FinCEN’s statement notes that while reporting companies are not required to file their beneficial ownership information reports with FinCEN while the preliminary injunction is in effect, reporting companies may voluntarily do so. At present, the CTA cannot be enforced against entities otherwise subject to reporting requirements, but if the Fifth Circuit or the Supreme Court stays the federal district court’s order pending appeal, reporting obligations may change on short notice. Therefore, it is important that clients with filing obligations monitor developments as the appeals process unfolds. If you have questions regarding the CTA or the preliminary injunction, please contact Joshua B. Beisker at 585-258-2879 or jbeisker@underbergkessler.com .

On December 3, 2024, the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction prohibiting enforcement of the Corporate Transparency Act (“CTA”) and associated regulations by the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”). The Court held that “the CTA is likely unconstitutional as outside Congress’ power.” The scope of the injunction precludes enforcement of any of the filing requirements of the CTA for companies formed before or after January 1, 2024. For a bit of background, the CTA, which took effect on January 1, 2024, attempts to hinder money laundering, tax fraud, terrorism financing, and other financial crimes through shell or front companies. It requires certain entities to report beneficial ownership information to the U.S. FinCEN. The entities required to report under the CTA include corporations and LLCs, in addition to various other business entities created by filing a document with a secretary of state or any similar office under the law. There are twenty-three categories of entities that are exempt from the reporting requirement. Examples of entities that are not required include banks, credit unions, and tax-exempt entities registered with the IRS. Be cautioned that this ruling is a preliminary injunction, and it is expected that the government may seek an expedited appeal of the decision which could result in the reversal or narrowing of the injunction, so that the January 1, 2025 filing deadline for reporting companies formed before 2024 ultimately might not be extended to a later date. That being the case, even though, per the injunction, companies do not currently need to file reports under the CTA, it may still be prudent for companies to continue to gather the requisite information for filing and be prepared to file in anticipation of a potential stay or modification of the Court’s injunction. If you have questions regarding the CTA or the preliminary injunction, please contact Joshua B. Beisker  at 585-258-2879 or jbeisker@underbergkessler.com .

We are pleased to announce that Paul F. Keneally , a partner in the Firm’s Labor & Employment , Litigation , and Municipal Law  Practice Groups, has been appointed to serve on the Board of Directors of St. John’s Foundation . Founded in 1992, the mission of St. John’s Foundation  is to support St. John’s in bringing joy and purpose to the lives of seniors in their care. St. John’s is a leading provider of a full spectrum of services to help older adults at every stage of life, including senior housing, skilled nursing care, Alzheimer’s/Dementia care, transitional/respite care, rehabilitation, and hospice care. Paul, who earned his B.A. from Amherst College and his J.D., cum laude , from Fordham University School of Law, serves as chair of Underberg & Kessler’s Labor & Employment Practice Group. He advises clients on a wide range of day-to-day labor and employment matters, helps resolve complex commercial and labor and employment disputes, and defends municipalities and public entities. Paul recently served as Legislative Representative to the Board of Directors of the Genesee Valley Society of Human Resources Management and on Literacy Rochester’s Board of Directors. He is currently Counsel to the Board of Directors and Management of the Tennis Club of Rochester.

Q: I am an attending physician at a nursing home. Can the facility pursue the involuntary transfer or discharge of a resident who is a safety risk to others, or seek to discharge a resident who has failed to pay for their stay at the home?     A : Yes, as outlined by the New York State Department of Health [1] (“NYS Dept. of Health”), a nursing home can transfer or discharge a resident against their or their health care proxy’s wishes for several reasons, including safety concerns to others due to a resident’s behavioral issues or a resident’s failure to pay for services.     Nursing homes in New York State can seek the involuntary transfer or discharge of a resident for the following reasons: it is necessary for the resident’s welfare and/or the facility cannot meet the resident’s needs; the resident’s health has improved to the point that they no longer require services from the facility; the resident’s behavioral or clinical status endangers the safety or health of other residents or staff; the resident fails, after “reasonable and appropriate” notice from the home, to pay for, “or to have paid under Medicare or Medicaid”, their stay at the facility; or the facility will no longer be operational.   Upon admission to the nursing home, the interdisciplinary team, consisting of medical, nursing, social work, dietary, and therapy providers, must make ongoing assessments as to the resident’s care needs, which can change over time. This may include the development of a discharge plan for the resident to return safely home, if appropriate.  However, as indicated above, there are circumstances that may develop which require the involuntary transfer or discharge of the resident prior to reaching a medical baseline to be discharged home or moved into long-term, skilled nursing care.   If the interdisciplinary team, in consultation with the resident and/or their representative, determines, for example, that the resident’s safety or the safety of other individuals in the facility would be at risk if the resident remains in the nursing home, the facility must provide at least a 30-day notice, orally and in writing, to the resident regarding the planned transfer or discharge. The resident, in turn, has the right to appeal the involuntary transfer or discharge and must submit the appeal within sixty (60) days of receipt of the notice from the nursing home. The appeal must be filed with the NYS Dept. of Health [2] and the resident, if they have not already been transferred or discharged, has the right to remain at the facility pending the decision on their appeal. If the resident has already been transferred or discharged, they may return to the nursing home to the “first available semi-private bed” if they win their appeal.   It is important for the nursing home’s interdisciplinary team to timely assess, reassess, and document its analysis in determining if a resident should be involuntarily transferred or discharged. As outlined by the NYS Dept. of Health, a nursing home must meet the responsibilities required to ensure that the resident’s rights are considered and adhered to while it pursues an involuntary transfer or discharge. In most circumstances, legal counsel can assist in navigating these situations.  Reprinted with permission from the November/December 2024 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here .   David H. Fitch is a Partner in Underberg & Kessler LLP’s Health Care , Litigation , and Municipal Law practice groups. He represents health care providers and facilities, municipalities, individuals, and businesses in complex litigation in state and federal courts. David can be reached at dfitch@underbergkessler.com or 585.258.2840. [1]  NYS Dept. of Health: https://www.health.ny.gov/facilities/nursing/rights/transfer_discharge.htm [2]  NYS Dept. of Health: https://www.health.ny.gov/facilities/nursing/rights/transfer_discharge_appeal.htm

We are pleased to announce that the Firm has been recognized for its professional excellence in multiple practice areas in the 2025 edition of Best Law Firms ® .  Best Law Firms ranks the top U.S. law firms across a range of practice areas and regions, recognizing those distinguished by quality, dedication, and expertise. The rankings are determined by client/professional reference feedback, information provided by firms, and industry leader interviews.   Underberg & Kessler received the following rankings in the 2025 edition: Buffalo, NY Commercial Litigation (Tier 3) Environmental Law (Tier 3) Legal Malpractice Law – Defendants (Tier 3) Litigation – Construction (Tier 2) Litigation – Insurance (Tier 1) Litigation – Labor & Employment (Tier 3) Real Estate Law (Tier 2)   Rochester, NY Banking and Finance Law (Tier 1) Closely Held Companies and Family Businesses Law (Tier 2) Commercial Finance Law (Tier 1) Commercial Litigation (Tier 2) Commercial Transactions / UCC Law (Tier 1) Corporate Law (Tier 1) Elder Law (Tier 1) Health Care Law (Tier 1) Labor Law – Management (Tier 2) Litigation – Health Care (Tier 1) Litigation – Labor & Employment (Tier 2) Medical Malpractice Law – Defendants (Tier 1) Municipal Law (Tier 1) Real Estate Law (Tier 1)   For more information about the 2025 Best Law Firms rankings go to www.bestlawfirms.com .

Beginning June 2, 2025, certain New York State retailers selling “consumer commodities” with ten (10) or more employees will be required to adopt safety measures to address and prevent workplace violence in their stores. Public employers and restaurants are exempt from the law. Employers will receive assistance in putting together the required Workplace Violence Prevention Policy from the New York Department of Labor in the form of a model policy. The policy will need to outline factors or situations in the workplace that might place employees at risk of workplace violence, including but not limited to: Unauthorized access to the workplace; Workers alone or in small numbers; Handling money with customers; and Workers at the store early in the morning and/or late at night. Other parts of a compliant policy will be a violence reporting system, information about federal, state and local laws and remedies available to victims, and a clear statement than retaliation against those who report workplace violence will not be tolerated. The new law also has a mandatory, interactive training requirement addressing: Any previous security problems; Duties of supervisors, particularly as to safety procedures; Instruction on the use of any emergency devices; Emergency procedures; Active shooter drills; De-escalation tactics; and Instruction on measures employees can take to protect themselves from violence by co-workers or customers. Like with the model policy, the New York Department of Labor will be providing a sample training outline. The training must be provided upon hire and every two (2) thereafter for employers with fewer than fifty (50) employees, and upon hire and annually for employers with fifty (50) or more employees. Employees must receive a copy of the policy, and the training information provided, at the training sessions in their primary language. Larger retailers with over 500 employees will have an additional obligation beginning January 1, 2027, to provide a “panic button” to employees. This silent response button must provide for immediate assistance from a security officer, manager or supervisor and dispatch local law enforcement to the site. The button may be a physical device in an “easily accessible” location at the store or a wearable or mobile phone-based device provided by the employer. If you have any questions about this new Act or any Labor or Employment law issues, please contact Paul F. Keneally at 585-258-2882 or pkeneally@underbergkessler.com .

The 2024 elections are just weeks away on November 5, 2024. As we’ve previously reported , employers across New York are still required to comply with Section 3-110 of the New York State Election Law. For background, New York State law allows certain employees (who are also registered voters) to take up to two (2) hours of paid time off to vote. In order to qualify for this paid time: The time away from work must occur at the beginning or the end of the employee’s working shift (or as otherwise mutually agreed);  The employee does not have four (4) consecutive hours either between the opening of polls and the beginning of their working shift or the end of their shift and the closing of polls (if the employee does have this time before/after their shift, they will be considered to have had “sufficient time” to vote); and The employee notifies their employer at least two (2) working days before the day of the election that they require time off to vote. Importantly, the law also requires employers to post a notice of employees’ voting leave rights at least ten (10) days before the election. This year, for workplaces with a typical Monday to Friday schedule, employers must post the notice no later than Tuesday, October 22, 2024, and keep it posted until the end of Election Day. A compliant notice must contain the following information (essentially memorializing the above information for employees): A registered voter may, without loss of pay for up to two (2) hours, take off so much working time as will enable them to vote at any election, if they do not have four (4) consecutive hours to vote before or after that day’s shift. The employee shall be allowed time off for voting only at the beginning or end of their working shift, as the employer may designate, unless otherwise mutually agreed. If the employee requires working time off to vote, the employee shall notify their employer not less than two (2) working days before the day of the election that they require time off to vote in accordance with the provisions of this section. Not less than ten (10) working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provision of his section. Such notice shall be kept posted until the close of the polls on Election Day. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters, or Ryan T. Biesenbach at (585) 258-2865 or rbiesenbach@underbergkessler.com .

We are pleased to announce that Ericka B. Elliott , associate attorney in the Health Care , Litigation , and Municipal Law  practice groups, has been selected as a 2024 Rochester Business Journal  Forty Under 40 honoree. This year marks the 30th anniversary of Forty Under 40, which recognizes Rochester's leaders who are 39 years of age or younger for their professional accomplishments, community service, and commitment to inspiring change. These individuals are not only achieving success in their careers but giving back in meaningful ways to the Rochester community. Ericka will be honored on November 12, 2024, at an awards celebration at The Strong Museum of Play. Ericka represents hospitals, physicians, nursing homes, home health agencies and other health care providers on issues ranging from risk management and patient care to collections and regulatory compliance. In her commercial litigation practice, she helps small businesses, banks, and individuals with contract disputes, debtor/creditor issues, and corporate governance matters. In addition, Ericka represents municipal clients in litigation and advises on legislative, administrative, economic development, planning and zoning matters. Ericka is a member of the Monroe County Bar Association (MCBA), and the Greater Rochester Association for Women Attorneys (GRAWA), where she recently served as a Board member and Secretary. In 2023, she was selected to participate in MCBA’s inaugural class of The Leadership Academy and now serves on the Steering Committee for the Academy. She is an active member of several non-profit Boards of Directors, including Lifespan, St. Ann’s Foundation, and the WNY Rural Area Health Education Center. She is also a Board Member and current Chair for 13thirty Cancer Connect, serves on the Lima Joint Village/Town Planning Board, and is a volunteer with the Cornell Alumni Admissions Ambassador Network. Ericka has been recognized in the 2025 edition of Best Lawyers: Ones to Watch in America ® for her work in Litigation-Labor & Employment in Rochester, NY. She was named a finalist in the 2024 Greater Rochester Chamber’s IGNITE Award’s program and selected as a 2023 and 2024 Upstate New York Super Lawyers Rising Stars honoree. In addition, she was selected by The Daily Record  and the Rochester Business Journal  for the 2023 Legal Excellence Award in the Up and Coming Lawyers category. Ericka earned her B.S. from Cornell University and her J.D. from University at Buffalo School of Law.

Underberg & Kessler LLP is proud to announce that Jennifer A. Shoemaker  and Ryan T. Biesenbach  were selected as 2024 Attorneys of the Year program honorees. The Attorneys of the Year program was created by The Daily Record  and the Rochester Business Journal  to pay tribute to lawyers who are working to make the community stronger and to advance the law profession. The honorees were selected based on their dedication to the legal profession, their commitment to their clients and the community, and letters of reference. Jennifer and Ryan will be celebrated at an event on November 4, 2024, and profiled in early November issues of The Daily Record  and Rochester Business Journal . Jennifer A. Shoemaker, a partner in the firm’s Family Law , Labor & Employment , and Litigation  practice groups, will be recognized in the Leaders in Law category. In her family law practice, Jennifer represents clients across the spectrum of sensitive family law issues, including divorce, custody, support actions, the negotiation of separation agreements, adoptions, and prenuptial agreements. She is certified as a mediator, a collaborative divorce attorney, and is a member of the Association of Collaborative Family Law Attorneys (CLARA). Jennifer also represents private and public-sector clients on a wide variety of litigation and labor & employment issues, including day-to-day labor and employment matters, resolving complex litigation, and labor and employment disputes. Jennifer earned her B.S. from Ithaca College and her J.D. from the Boston College School of Law. She is a member of the Monroe County and Wayne County Bar Associations and the Genesee Valley Chapter of the Society of Human Resources Management. Jennifer is a Board Member for ARC of Monroe where she also serves on the Executive Committee. She is the past president of the Board of Directors of Camp Stella Maris and is a past member of the Board of Directors of the March of Dimes. Ryan T. Biesenbach will be recognized in the Up and Coming Lawyers category. As an associate in the Labor & Employment  and Litigation  practice groups, Ryan advises clients on all aspects of labor and employment law, including the development of effective employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and ensuring compliance with state and federal labor laws. Ryan additionally has experience in all stages of litigation, from intake to resolution in federal and New York State courts, tribunals, and agencies. He earned his B.A. from the State University of New York at Fredonia, his M.A. from Wake Forest University, and his J.D. from the Maurice A. Deane School of Law at Hofstra University. Ryan is a member of the Genesee Valley Chapter of the Society for Human Resource Management, the Monroe County and the Ontario County Bar Associations, and he serves as a Board Member for Literacy Rochester.

We are proud to announce that thirteen attorneys were recently selected for inclusion in the 2024 Upstate New York Super Lawyers list and two additional attorneys were recognized in the 2024 Upstate New York Rising Stars list. Super Lawyers recognizes the top attorneys nationwide, across a variety of practice areas and firm sizes, using a patented process of independent research and peer input. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement and only 5% of attorneys are selected to Super Lawyers and 2.5% to Rising Stars.   The attorneys selected for inclusion in the 2024 Upstate New York Super Lawyers list and their recognized practice areas are: Leah Tarantino Cintineo  – Family Law James A. Coniglio   – Government Finance Patrick L. Cusato  – Real Estate Steven R. Gersz  – Businesses & Corporate Katherine H. Karl   – Banking Paul F. Keneally  – Employment & Labor Thomas F. Knab  – Business Litigation Anna E. Lynch  – Health Care Colin D. Ramsey  – Health Care Jennifer A. Shoemaker  – Family Law Margaret E. Somerset  – PI Medical Malpractice - Defense David M. Tang  – Creditor Debtor Rights George S. Van Nest  – Environmental   The attorneys selected for inclusion in the 2024 Upstate New York Rising Stars list and their recognized practice areas are: Ryan T. Biesenbach – Employment Litigation - Defense Ericka B. Elliott  – Business Litigation