The Supreme Court recently handed down some significant decisions in the labor and employment field. These decisions represent a trend of pro-employer decisions from the Court. Union Agency Fees - Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) In Janus, the Supreme Court held that public-sector unions cannot force non-union employees to pay “agency fees,” sometimes referred to as “fair share fees.” This decision affects 22 states that allow this practice, including New York. Unions collect these fees to help pay for the services they provide to members, such as negotiating the collective bargaining agreement, representing members in grievance and arbitration proceedings, and lobbying activities. Previous case law found such fees to be permissible under the theory that even non-members reaped the benefit of the union’s bargaining with the employer, even if employees disagreed with the uses of the funds or opposed the union. In Janus, the plaintiff argued that charging the agency fees essentially forces an individual to contribute to a lobbyist or political advocacy group that the individual may not support. The Supreme Court agreed and found that forcing nonmembers to pay agency fees constituted a violation of the First Amendment. Critics of the decision argue that the agency fees amounted to normal union dues minus the portion charged to members that was used for political activities, thereby alleviating First Amendment concerns. Janus is expected to have an effect in private sector unions as well, with at least one major union slashing its budget by 30% in anticipation of the Janus decision. New litigation has also resulted, with a class action suit filed in California by teachers seeking to recoup the payment of agency fees. Class Action Waivers - Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) Federal courts have disagreed on whether employers could require employees to sign arbitration agreements containing class action waivers as a condition of employment. Some employers favor such clauses as they limit the employer’s exposure to potential class action claims. Last year, New York’s First Department decided that such clauses violated the NLRA (National Labor Relations Act), while the Second Circuit found them permissible. The Supreme Court has now settled the disagreement, finding in Epic Systems that class action waivers in mandatory arbitration agreements are permissible. Such waiver clauses limit employees’ ability to pursue wage-and-hour and other workplace related claims in court, forcing them to arbitrate such claims individually. Justice Gorsuch held that the NLRA did not apply to such claims, as it is focused on collective-bargaining rights, rather than non-union rights. Therefore the Federal Arbitration Act’s savings clause did not apply. That savings clause renders unenforceable arbitration contacts based “upon such grounds as exist at law or in equity for the revocation of any contract.” Opponents argue that waiver clauses make valid claims too small to be worth pursuing, potentially letting employers off the hook for violations of employment laws. More employers are likely to look into implementing such agreements to potentially decrease the risk that they will face extremely expensive and time-consuming class action litigation. Standard of Review for FLSA Overtime Exemptions - Encino Motorcars LLC v. Navarro et al., 138 S. Ct. 1134 (2018) The Supreme Court’s decision in Encino Motorcars in April is not receiving as much attention as the previously discussed cases, but is important to those who work in the labor and employment practice area. All labor and employment practitioners know that the exemptions to the Fair Labor Standards Act’s (FLSA) overtime requirements should be narrowly construed. Failing to do so and misclassifying an employee can result in an employer owing that employee years of back wages and liquidated damages. Those employees who enforce their misclassifications in court can also collect attorney’s fees from the employer. The decision was limited to the finding that auto service advisers are exempt from overtime provisions under the FLSA, but it also included a new standard to use when deciding a misclassification case – “a fair reading.” For decades, the Supreme Court has construed such exemptions narrowly, which gave employees the upper hand in cases where the applicability of a particular exemption was questionable. While this decision is unlikely to result in any immediate changes, it will arguably make it a little easier for employers to demonstrate that a particular employee should be exempt from overtime provisions. It will be interesting to see how this new standard is applied to misclassification cases in the future. With Justice Kennedy’s recent retirement, President Trump has now had the opportunity to nominate another Supreme Court justice. On July 9, 2018, he nominated Judge Brett Kavanaugh for the seat. If confirmed, Judge Kavanaugh is generally expected to favor employer’s interests, and the Supreme Court’s shift towards employer-friendly decisions are likely to continue. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

I am graduating from my residency program and received an employment contract from my future employer. What should I be aware of while reviewing the proposed agreement? Unfortunately, how to review and negotiate a physician employment contract is not usually covered in the hustle and bustle of residency or fellowship. Yet, the physician employment contract defines the parameters of your relationship with your employer during your employment, and even after it ends. Making sure you understand the terms of your employment agreement prior to signing on the dotted line is crucial for any new (or experienced) physician. Compensation is usually the first question on a new attending’s mind. Research what other physicians in your specialty and geographic location earn and use that knowledge to ensure that your new employer is offering market rate. Additionally, negotiating productivity incentives may be possible because your employer’s profits will rise as your productivity increases. Make sure to review the practice’s fringe benefits such as health insurance, disability insurance, and retirement savings options, as these benefits contribute to your overall compensation. Quality of life issues are another important component of any physician employment contract. Carefully review the call schedule. The agreement should state whether call will be taken evenly by the physicians in the practice and how call will be handled during absences. If there are multiple locations for the practice, expectations about covering farflung offices should be addressed, as well as travel expenses. Prior to entering into a contract, it is always beneficial to ask about how the practice operates, its billing procedures and employee retention rates. The physician employment contract should also specifically set forth the duties of the physician, including clinical responsibilities, administrative tasks and teaching responsibilities. The agreement should delineate the responsibilities of the employer, such as keeping malpractice insurance, maintaining appropriate support staff and ensuring standards for medical care. Non-competition and non-solicitation terms are now common in physician employment agreements. Depending on your practice, separating from your employer may mean having to move to continue working. In New York, these restrictive covenants are enforceable if they are reasonable in time and distance. For example, in a town with two hospitals, a hospitalist who leaves her position will likely be unable to work for the competing health system for two to three years. This means relocating or enduring a long commute. Restrictive covenants are the most litigated terms of physician employment contracts. Ensuring that you understand any restrictive provisions of your contract and negotiating a reasonable time and distance are essential to avoiding costly litigation should you separate from this practice and want to continue working in this community. Finally, understanding how you or your employer may terminate the physician employment agreement is also critically important. Physician contracts usually recite a definite term of employment; but give either party the ability to terminate the agreement on written notice (usually 60 – 90 days). The best protection for job security— and the hardest to achieve—is a fixed term contract allowing termination only “for cause”, which is clearly defined. Additionally, the employment agreement should give the physician an opportunity to cure any alleged shortcomings before termination upon prior written notice. The transition from a resident or fellow to an attending is an exciting and gratifying time. Taking the opportunity to understand and negotiate your employment agreement should not be missed. If you have questions concerning the content of your employment contract, you should contact an attorney experienced in negotiating and understanding these special agreements. Download the Reprint from the May/June 2018 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.

The NYS Legislature has passed a bill which would add bereavement leave to the list of permissible reasons to take paid family leave.  The bill would allow employees to use paid family leave after the death of a family member.  It would also allow those who have already been using paid family leave to care for a family member to use any remaining time for bereavement. On average, employers usually allow a few days for bereavement.  Lawmakers say that this change will allow employees to take the time necessary to take care of their psychological needs after a family member’s death, and that the inability to take sufficient time has not only a negative effect on an employee’s health, but also their ability to perform their day-to-day tasks. All that is left is for Governor Cuomo to sign this bill into law.  Bereavement leave would be added to Paid Family Leave on January 1, 2020. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. #LaborLaw #EmploymentLaw

Binding arbitration remains on the rise. Indeed, there is a high likelihood that only a small percentage of the readers of this article will have not already, in some area of their life, consented and otherwise agreed to private, binding, predispute arbitration. Those who have not, will have made various affirmative decisions to live without a credit card, a cellphone, and cable or internet services, and to refrain from online shopping. Just this month, the Supreme Court ruled in a 5-4 decision that employers can block employees from joining together to take legal action over workplace issues via an arbitration clause in employment contracts. The decision is another in a line of cases giving favorable treatment to predispute arbitration agreements. This article discusses recent challenges to arbitration provisions in employment contracts, consumer contracts and nursing home admissions. High Court Upholds Class Waivers in Employment Contracts On May 21, 2018, the Supreme Court ruled that companies may prohibit workers from class actions through employment contracts and insist that employee disputes be resolved in arbitration rather than in court. In recent years, workers had argued that the National Labor Relations Act prohibits class waivers in arbitration language in employment agreements. After three federal courts split on the issue, the Supreme Court heard argument on appeals in all three cases: Epic Systems Corp. v. Lewis; Ernst & Young v. Morris; and NLRB v. Murphy Oil USA. Epic Systems, a health care software provider, sought enforcement of the arbitration provisions, and argued that employers and employees need to know whether class waivers in arbitration clauses will be enforced. In turn, the workers argued that the labor relations statute confirmed the right of workers to pursue joint legal claims and, therefore, class waivers are illegal and unenforceable. The ruling in Lewis, Morris and Murphy Oil is consistent with several decisions endorsing arbitration provisions in contracts with consumers. Arbitration in Consumer Contracts In AT&T Mobility LLC v. Concepcion (2011), the Supreme Court ruled that the Federal Arbitration Act (FAA) permits businesses to avoid class actions by insisting on individual arbitrations in customer contracts. In Concepcion, a couple who objected to a $30 charge relating to what was originally marketed as a free cellphone, was blocked from joining with other unhappy customers to form a class. Arbitration in Nursing Home Agreements In 2012, the Supreme Court, in Marmet Health Care Center v. Brown, Clarksburg Nursing Home & Rehab Ctr, LLC, added another FAA decision enforcing an arbitration clause in a nursing home contract. The dispute in Marmet arose from claims contending that patient deaths were attributable to nursing home negligence. The nursing homes moved to refer the cases to arbitration, relying on arbitration language in admission agreements. The state court adopted a rule holding that as a matter of public policy, it was unacceptable for disputes about personal injury or wrongful death to be covered by a pre-dispute arbitration agreement. The Supreme Court reversed. The Mamet Court held that federal law preempts any state law that purports to prevent the arbitration “of a particular type of claim.” The 2016 Rule (banning mandatory arbitration in LTC admission agreements) and the ‘New’ Rule’ (reversing the ban) In the final year of the Obama administration, the Center for Medicare and Medicaid (CMS) issued a new rule prohibiting participating long-term care (LTC) facilities from entering into “pre-dispute binding arbitration agreements with their residents or their representatives.” The rule, which was made effective November 28, 2016, was immediately challenged and enforcement was blocked by an injunction. During the pendency of the appeal, the current administration took office and, shortly thereafter, published a proposed revised rule effectively reversing the 2016 Rule banning nursing home arbitration. In May 2017, the Supreme Court rejected a Kentucky rule that invalidated arbitration agreements signed under a power of attorney. At issue in Kindred Nursing Centers Ltd Partnership v. Clark, was the binding arbitration language of a nursing home admissions contract. The Court reviewed and then rejected a rule which was adopted by the Kentucky Supreme Court that required “an explicit statement before an attorney-in-fact… could relinquish [the right to a jury trial] on another’s behalf.” The decision confirms the Supreme Court’s distaste for a state law or rule that might prevent arbitration of a particular claim. Most recently, the U.S. District Court in Massachusetts in GGNSC Chestnut Hill LLC v. Schrader (Mar. 31, 2018) considered a similar fact pattern, under which the resident’s power of attorney (POA) signed a nursing home agreement, but then challenged the nursing home’s effort to compel arbitration of a wrongful death claim, notwithstanding language in the admissions agreement providing for arbitration. The POA argued that that the arbitration provision was unenforceable. In rejecting that argument, the Schrader Court concluded that such a ruling would be inconsistent with the FAA. In ruling for the LTC facility, the District Court noted the Supreme Court has consistently held that state laws that “impede the ability… to enter into arbitration agreements… flout[] the FAA’s command to place those agreements on an equal footing with all other contracts.” Arbitrations in New York Nursing Home Admissions In New York, the Appellate Division, First Department, reached a similar conclusion in Friedman v. Hebrew Home for the Aged at Riverdale (2015), in which the appellate court declared that the FAA preempts Public Health Law section 2801-d (“private actions by patients of residential health care facilities”). The nursing home defendant in Friedman sought to stay a negligence action pending arbitration, pursuant to the admission agreement’s arbitration clause. The trial court had denied the facility’s motion to stay. The Appellate Division, First Department unanimously reversed, declaring that “the arbitration clause is not unconscionable, either procedurally or substantively.” The debate over enforceability of mandatory arbitration in nursing home admissions is likely to continue, and the likelihood of a legal challenge to the enforcement of final rules from CMS on arbitration in nursing home admission agreements remains high. Still, in light of the most recent ruling in Lewis, Morris and Murphy Oil, the law continues to favor arbitration, and it appears that binding arbitration agreements are here to stay for the foreseeable 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.

As New York State employers continue to manage their first year of paid family leave (PFL) benefits available to employees in 2018 (8 weeks maximum), comments and predictions about what the Legislature might do for 2019 have emerged.  As expected, we have heard that the disability insurers who pay out the PFL benefits to eligible employees are indicating that the current amount withheld from employees’ pay to cover PFL benefits is insufficient. Accordingly, and given that the PFL maximum becomes 10 weeks in 2019, the Legislature is considering whether to increase the amount withheld from employees’ pay for PFL in 2019.  Moreover, commentators expect that the Legislature will also mandate that employers start to pay a percentage of the cost of PFL benefits.  While expected to begin modestly, the cost to employers for PFL would likely increase in subsequent years, beginning in 2020 when PFL benefits go to 12 weeks and when, as predicted, employees increase their use of PFL as more of them become aware of it and its details. Employers interested in weighing in on the issue of PFL, or any other employment law legislation, should contact us for assistance. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On September 5, 2017, the New York State Department of Environmental Conservation (DEC) concluded an extensive regulatory revision process to make the first major changes to the Solid Waste Management Regulations, 6 NYCRR Part 360, in approximately 20 years. The revised Part 360 regulations went into effect on November 4, 2017, and address design and operational requirements for all solid waste management facilities in the State. The changes are significant in a variety of areas, including structural changes and scope of regulatory coverage. A detailed discussion is impossible in this format, but this article will highlight some of the key changes. First, the Part 360 regulations have been revised to create new sub-parts for various waste categories. The regulations are now organized into a Part 360 series by specific waste topic ranging from Part 360-369. This should make it easier to review and revise the regulatory sections in the future. In addition, the regulations address previously unregulated areas such as mulch processing facilities. DEC views the new criteria as an important step to avoid potential threats to water quality and the general environment across the State. The agency has also added new provisions to address mulch storage facilities, as well as composting facilities. Another area that DEC strengthened are the regulations that govern wastes from oil and gas production activities. DEC has enhanced the prohibitions on the disposal of flowback water and production brine from oil and gas production, along with increasing testing requirements and parameters for the reuse of brines for dust and ice control on roads. The new regulations require waste tracking documents for transportation of most types of drilling and production wastes. Although the issue has been addressed through permits previously, the regulations now require the installation and use of radiation detectors at solid waste management facilities that accept drilling and production waste, or municipal solid waste. Aside from revisions to regulations on landfills and solid waste facilities, the revised Part 360 regulations will have a significant impact on the management of construction and demolition debris. Surplus construction material such as soil, stone, concrete and asphalt is generated and managed at a myriad of construction and redevelopment projects. The new regulations will lead to much more regulatory intensive treatment for the material, since the new regulations treat surplus construction material as a regulated waste. Although there are provisions to allow the beneficial re-use of such materials in certain circumstances, via pre-determined beneficial re-use determinations for other solid waste, it is the generator’s responsibility to make advance determinations prior to removal of the surplus construction material and obtain DEC’s pre-approval. If the construction materials are not exempt from the regulations, sampling will be required under the direction of a Qualified Environmental Professional (i.e., PE, PG or certified Site Remediation Professional). The regulations detail the sampling parameters, frequency of sampling and reporting requirements. Once sampled, the fill material needs to be classified as “general fill,” “restricted use fill,” or “limited use fill” based on maximum allowable contamination levels for each category of fill. The rule provides that “general fill,” the category with the least regulatory restrictions on re-use, can have no “non-soil constituents.” Conversely, restricted use fill and limited use fill have limitations on both re-use and the future use of the property, which will likely require future management if the site where the fill is placed is disturbed. The classes of fill are considered regulated waste up to the time that they are beneficially re-used in the manner provided by the regulations. This is significant, since the handling and temporary stockpiling of the material are subject to time limits. The regulations require facilities with existing beneficial use determinations (BUD) for solid waste material to request a renewal of the BUD from DEC within six months of the regulations becoming effective. If not, the BUD will expire and the facility will need to request a new BUD from DEC. Thus, facilities with previous stockpiles of material subject to a BUD will have six months to manage the material in accordance with the BUD. Additional regulatory provisions address the handling and transportation of the construction material. If the material is going to be screened, sorted, crushed or blended, the facility may be subject to registration or permitting. Transportation of the materials requires a Part 364. Notably, re-use of these materials is limited only to sites with a demonstrated need for fill based on a governmental approval, such as a site plan or building permit. Revisions to environmental regulations of any sort can be a challenging process. DEC’s revisions to the comprehensive solid waste regulations set forth under Part 360 enlisted a great deal of public comment and concern from the regulated community. Implementation of the revised regulations will require some time to gain experience with the new regulatory provisions by both DEC and regulated entities, but after 20 years, updates and revisions were certainly warranted. 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.

On February 26, 2018, the United States Court of Appeals for the Second Circuit overruled its own precedent and became only the second Court of Appeals in the nation to extend Title VII protection to gay workers. Zarda v. Altitude Express, Inc., was argued before a rare en banc (before the entire panel of judges) session last year. This is the second time in less than a year that a federal appeals court ruled that Title VII forbids sexual orientation discrimination because it is a form of sex discrimination. Donald Zarda, a gay man, was a tandem skydiving instructor for defendant Altitude Express. A female customer claimed Zarda inappropriately touched her and “disclosed his sexual orientation to excuse his behavior.” The customer’s boyfriend complained to Zarda’s supervisor, and Zarda was terminated. Zarda denied inappropriately touching the customer and claimed he was fired for failing to conform to male sex stereotypes by referring to his sexual orientation. Altitude said it was his behavior, not his sexual orientation that led to Zarda’s dismissal. The Second Circuit had previously held that sexual orientation discrimination claims, including claims that being gay or lesbian constitutes non-conformity with a gender stereotype, are not cognizable under Title VII.[1] The lower court in Zarda, following precedent, rejected Zarda’s Title VII claims because they were based on sexual orientation. In deciding to take the case en banc (the only way to overrule its’ own precedent), the Second Circuit took note of the evolution of legal doctrine, including a 2015 EEOC decision[2] finding that sexual orientation is inherently a “sex based consideration” and that accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. The en banc majority overruled prior decisions rejecting Title VII protection on the basis of sexual orientation. The court set forth three justifications for its ruling. First, the court concluded that “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor….Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” By way of example, the court asked whether “a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” If the answer is yes, then this constitutes discrimination because of sex. Next, the court noted that sexual orientation discrimination is also invariably based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted. The court cited to Price Waterhouse v. Hopkins,[3] which paved the way for gender stereotyping claims, where an employee alleged discrimination because of her nonconformity with stereotypes about how a woman should act. The United States Supreme Court in Price determined that gender must be irrelevant to employment decisions and employers may not discriminate against women or men who do not conform to conventional gender norms. The Second Circuit thus concluded that discriminating based upon assumptions about the gender to which an individual should be attracted is prohibited discrimination. Finally, the court found that sexual orientation discrimination is” associational discrimination” because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex. In other words, an employee has been subjected to associational discrimination where the employee’s protected characteristic (i.e., sex), becomes a motivating factor for an adverse employment action. The Court noted that at the time that Congress passed Title VII, it likely did not intend that the law would apply to sexual orientation discrimination, but that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils” (internal citations omitted). Although there is a clear split between the circuits, it is likely that other circuit courts will soon follow suit and that the issue will ultimately be decided by the United States Supreme Court. New York State already includes sexual orientation as a protected class under its Human Rights Law, so company policies and handbooks should already prohibit sexual orientation discrimination. However, many courts in other jurisdictions have found that Title VII does not prohibit discrimination based on sexual orientation. As with every type of workplace sexual harassment, there continues to be an increase in the number of claims since the #metoo movement has continued to take this country by storm. [1] Simonton v. Runyon, 232 F.3d 33, 35 (2d. Cir. 2000). [2] Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641. [3] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 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.

During the lifetimes of most married couples, especially when a child is involved, mutual estate planning is done so as to ensure that if one spouse passes away, the deceased spouse’s assets pass to the surviving spouse.  Generally speaking, this is a sound planning strategy; unfortunately, if a marriage ends in divorce, each person will effectively have to update and/or revise their respective estate planning strategies. Updating Planning Documents A divorce has the potential to cause a Last Will and Testament to be invalid, though in most cases, only the portions of the Will dealing with an ex-spouse will be extinguished after a divorce. That said, it would not be prudent for an individual to rely on that alone in lieu of updating or revising his/her Will.  For example, if a divorced couple had a child during their marriage, typically, an individual’s assets that would have passed to the ex-spouse under the Will would instead pass to the child.  However, if a married couple divorces but did not have a child, if no changes are made to an individual’s Will as to how assets originally set to pass to an ex-spouse should now be distributed, then it is likely that the Court will be required to make the  determination during the probate process. Ultimately, this could result in an individual’s assets being distributed in such a way that is not in accordance with how that individual would have otherwise intended. It is also important that individuals do not forget to update the beneficiary designation forms for items such as life insurance policies and retirement accounts following a divorce settlement.  This often-missed step can be a costly mistake, which can lead to significant hardships on a subsequent marriage or beneficiaries in general. Maintain Control of Assets A divorce will often times invalidate an ex-spouse’s claim to an individual’s property, meaning that there is little chance that an ex-spouse might obtain valuable assets like a home if their ex-spouse passes away.  However, without proper planning, there is still the chance that an ex-spouse can maintain a significant amount of control over such assets. For example, if a minor child is under age 21, all assets inherited by the minor child are generally to be held by a custodian or a guardian; however, if an individual fails to appoint one under the Will, then the ex-spouse may be the one who ends up controlling such assets until the minor is old enough to do so on his/her own.  Hence, the ex-spouse may still be able to exercise a significant amount of control over an individual’s estate. There are many strategies to ensure that the assets passing to the child will not be under the control of the ex-spouse.  The most basic would be to appoint a specific custodian or guardian under the Will (who is not the ex-spouse) to control the assets for the benefit of the child.  Another would be to revise a Will to include Trust language for the assets that would pass to the minor child in order to keep the assets protected from creditors and all other potential consequences that often accompany a divorce. If a couple had estate planning in place during the marriage and subsequently divorces, it is imperative that each individual review and update their planning documents accordingly so as to ensure that such individuals’ assets will ultimately pass to the intended beneficiaries. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The opioid crisis has led to an increase in malpractice and State disciplinary actions against providers. What are tips to mitigate the legal risks of prescribing opioids? In 2017, the opioid crisis was declared a public health emergency. The rise in opioidrelated deaths has increasingly led to liability against those prescribing the drugs. Physicians and other prescribing providers must carefully implement safeguards into their practices to minimize liability and risks. The following are some ways in which health care providers may mitigate the legal risks associated with prescribing opioids: Develop a Plan Develop a comprehensive plan for starting patients on opioids and for tapering patients off opioids, when necessary. In the event problems arise, having a plan in place that includes multiple resources and treatments will make a smooth transition for patients. Be sure to consider alternative methods of pain treatment such as exercise, massage therapy and the like. Develop a Prescribing Protocol Develop pain medication prescribing protocol and discuss with the patient ahead of time, including which medication will be prescribed and at what intervals. Discuss the established plan prior to prescribing opioids in order to prevent disappointment and set realistic expectations for what can be achieved with opioid therapy. Identify At-Risk Patients Regularly monitor and review patients on opioid therapy and ensure the medications prescribed address the specific needs of the patient’s overall medical condition. Be Alert Patients require close monitoring. Watch for red flags, such as requesting specific medications, impatience for refills, refusal to give medical history or name of previous physician, and reluctance or refusal to provide urine tests. Be aware of the warning signs and have a plan in place to address concerns. Monitor Requests for Refills Excessive refills may be a sign of abuse or non-medical use. Monitor patient refills and require prescriber review prior to permitting refills. Consider limiting refills for patients who often run out of medications before the next appointment. Discuss with the patient the practice’s policy regarding refills to set reasonable expectations. Document Improve documentation for all patients, but especially those receiving opioid therapy. Documentation should include patient’s receipt of the provider’s policies outlining the recommended practice standards of prescribing opioids, alternatives considered, the initial plan, and any revised plan. Thorough documentation is important in protecting providers should malpractice or State disciplinary actions arise. Always Consult Prescription Monitoring Program Prescribers are required to consult the Prescription Monitoring Program (PMP) Registry when prescribing certain controlled substances. The registry provides direct access to a patient’s controlled substance prescription history. This information will allow providers to better evaluate patients and determine whether there may be abuse or non-medical use. Require Patient Agreements Consider requiring patient agreements, wherein patients agree to comply with the practice’s prescribing protocol, refill limits and the patient’s individual plan for opioid therapy. Discuss and educate the patient on the risks and benefits associated with opioid therapy. Patient agreements set expectations in advance and promote patient accountability. Monitor Nurse Practitioners and Physician Assistants Develop protocols and guidelines for other providers in your practice who prescribe opioids, and closely monitor those providers. There is an upward trend of malpractice actions filed against nurse practitioners and physicians assistants, and against practice groups for failing to monitor and properly supervise prescribing providers. Follow Established Guidelines The Centers for Disease Control and Prevention published the CDC Guideline for Prescribing Opioids for Chronic Pain to provide recommendations for prescribing opioids in primary care settings. Consider following the 12 recommendations for prescribing opioids under the CDC Guideline. The rise in opioid-related deaths has increasingly led to liability against prescribing providers, but implementing safeguards into practices aims to minimize liability and risks. In this ever-changing landscape, it is vital for providers to stay educated on the current practices and guidelines related to prescribing opioids. Download the Reprint from the Feb-Mar 2018 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.

Timothy P. Johnson has joined Underberg & Kessler as an of counsel attorney in our Buffalo, New York office. Tim will focus his practice in commercial lending and commercial loan workouts.  He earned his B.A. from the State University of New York at Buffalo, and his J.D. from the University at Buffalo School of Law. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

President Trump signed the Tax Cuts and Jobs Act of 2017 (the Act) into law on December 22, 2017, extensively modifying U.S. taxation laws for individuals and business. Among other things, the Act increases the applicable exclusion amount of the Federal estate, gift and generation skipping transfer tax from $5 million per individual, indexed annually for inflation, to $10 million in 2018 (the inflation adjusted exemption amount is expected to be approximately $11.2 million or $22.4 million for married couples). In Light of the Act, every individual should review his/her current estate plan! The Act impacts each individual’s estate plan differently; hence, each plan should be reviewed - and possibly revised - in light of the changes.  The failure to promptly review and/or revise a current estate plan could yield catastrophic results. While married couples with a net worth below $11.2 million - which makes up a majority of the American population - do not have a current Federal estate, gift or generation skipping transfer tax liability under the Act, they may still be liable for New York State estate tax liability, since the provisions of the Act have no effect on New York’s current tax laws.  New York’s exemption amount remains at $5 million, indexed for inflation. Further, under the Act, the $11.2 million exemption amount is set to expire or “sunset” in 2026, at which time the exemption amount will revert back to the 2017 exemption amount (i.e., $5 million per individual, indexed for inflation).  Hence, while married couples with a net worth below $11.2 million may currently not be exposed to tax liability under the Act, there is a very real chance that they may be exposed to Federal (as well as State) estate tax when the provisions of the Act “sunset” in 2026. Generally speaking, regardless of the Act, there are many other significant reasons for individuals to frequently review and update their estate plans: Inheritances for Spouses: While many individuals prefer to leave their entire estates outright to their surviving spouse, it often times makes sense to divide assets during lifetime so that some portion of the combined assets are held in trust for the benefit of the surviving spouse to provide potential asset protection benefits, and to ensure that upon the surviving spouse’s subsequent death, the assets pass to beneficiaries and in the manner designated by the predeceased spouse. Inheritances for Children: Individuals should review how their children will inherit their assets to ensure they are giving their children the best opportunity to financially succeed. Many times, this means holding assets in trust for the benefit of a child until the child attains a certain age. Annual Exclusion Gifting: Individuals should consider starting - or continuing to make - annual exclusion gifts up to the $15,000 per recipient in 2018 ($30,000 jointly from a married couple).  Consideration should be given to making gifts in trust for younger beneficiaries or other beneficiaries who do not have an immediate need for the gifted amount. Asset Ownership: Asset titling is a critical part of any estate plan, since the title to an asset may dictate to whom the asset is transferred at death.  Individuals should revisit how assets are titled to ensure they pass to the intended beneficiaries. Fiduciary Appointments: The appointment of Executors, Agents, and/or Trustees under an individual’s estate plan should consistently be reviewed. Individuals often initially select family members or friends to act as fiduciaries, but as time passes and those individuals age, consideration should be given to the appointment of younger individuals as successors.  At the very least, individuals should review the mechanisms for how successor fiduciaries are appointed under their estate plans. Incapacity Planning: Individuals are living longer now than ever before.  Consequently, the chance of an individual losing capacity during his or her lifetime is also increasing.  Individuals should review their current planning documents in order to ensure that their Powers of Attorney and Health Care Proxies/Living Wills are current, and that the Agents appointed are appropriate.  Individuals may also want to consider incorporating a revocable trust into their estate plans in order to provide a smoother transition of control in the event of incapacity. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Recently, we’ve been warning employers that in order to have a legally compliant unpaid internship available, certain specific conditions had to be met.  If those conditions were not met, employers ran the risk of facing liability for unpaid wages for someone they classified as an unpaid intern.  The factors that have been in place until this month are as follows: The internship is similar to training that would be given in an educational environment. The internship is for the benefit of the intern. The intern does not replace regular employees, but works under close supervision of existing staff. The employer derives no immediate advantage from activities of the intern, and may even be impeded. The intern is not necessarily entitled to a job offer at the conclusion of work. The employer and intern understand that the intern is not entitled to wages. An employer/intern relationship had to meet all of those factors to be a legal unpaid internship.  Despite the previous DOL test, some federal courts considered instead who the “primary beneficiary” was to determine if an unpaid intern was actually an employee entitled to wages.  The test considers the economic reality between the employer and intern. Based on that test, the DOL has issued new factors to be used when determining if an intern can legally be an unpaid intern.  Unlike the pre-2018 test, the employer/intern relationship does not have to meet all of these factors to be a legal unpaid internship, and no single factor is determinative.  Rather, all of these factors will be considered and weighed based on the facts of any particular case.  The new seven-factor test is as follows: The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.