A mainstay of employment-based litigation – non-compete agreements – are on the proverbial chopping block. On June 20, 2023, the New York State Assembly passed Bill S3100A. This bill would amend the New York State Labor Law (“NYLL”) by adding a new Section 191-d that, once signed into law, could prohibit (and void) nearly all non-competes that are entered into or modified after the effective date of the law (30 days after the Governor Hochul’s signature). The proposed legislation follows on the heels of both a rule proposed by the Federal Trade Commission (“FTC”) that would retroactively ban non-compete agreements as an unfair method of competition, and a memorandum published by the General Counsel to the National Labor Relations Board (“NLRB”) that asserts that most non-compete agreements already violate Section 7 of the National Labor Relations Act (“NLRA”). By way of background, a “non-compete” is a legal agreement or clause in a contract specifying that an employee must not enter into competition with an employer. Many non-competes specify a time period during which the employee is barred from working for a competitor or in a certain industry after they end employment. Although they take many forms, these agreements also generally include a clause prohibiting the employee from revealing proprietary information or trade secrets to others during or after employment, or from soliciting an employer’s other employees or customers. Historically, non-compete agreements have been “disfavored” in New York but may be enforced by courts if properly tailored to: (1) a reasonable time period and geographic scope; (2) protect the employer’s legitimate interests; (3) impose no undue hardship on the employee; and (4) not harm the public. To that end, an employer’s legitimate interest can include protecting its trade secrets and confidential information and preventing employees from taking specialized skills they gained on the job to a competitor. Essentially, a non-compete’s restrictions must be no greater than necessary to protect the legitimate interests of the employer. Bill S3100A, which was passed after the conclusion of the 2023 legislative session, would prohibit almost all non-compete agreements for all employees, regardless of their salary level or job function. There are few express exceptions to this near-total ban, so long as the agreements do not “otherwise restrict competition” in violation of the proposed law, including agreements that: establish a fixed term of service; prohibit disclosure of trade secrets or confidential and proprietary information; or agreements that prohibit solicitation of clients learned about during employment. Remedies against employers attempting to impose or enforce banned non-competes under the proposed law include injunctions, attorneys’ fees, liquidated damages up to $10,000, and lost compensation. Claims may be brought within two (2) years of signing a non-compete, the end of employment, or the attempted enforcement of the agreement. On the federal level, the FTC is considering a broad, fully retroactive non-compete ban. Under its proposed rule, the FTC would make it unlawful for an employer to enter into, or attempt to enter into, or maintain a non-compete agreement with an employee or represent to an employee that they are subject to such an agreement where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause. Unlike Bill S3100A, the FTC’s rule contains an exemption for a “substantial owner of, or substantial member or substantial partner in” a business entity that has been sold where the non-compete provisions are an aspect of the sale. In May 2023, the NLRB also stated that non-competes are already illegal under the NLRA. In her widely circulated memorandum, NLRB General Counsel Jennifer Abruzzo explained that non-compete agreements are unlawful because they “chill” employees from exercising their NLRA Section 7 rights to take collective action in improving working conditions. Specifically, General Counsel Abruzzo stated that, “[n]on-compete provisions reasonably tend to chill employees in the exercise of Section 7 rights when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work.” General Counsel Abruzzo continued, “This denial of access to employment opportunities interferes with workers engaging in Section 7 activity in a number of ways – for example, workers know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; their bargaining power is undermined in the context of lockouts, strikes and other labor disputes; and their social ties and solidarity leading to improvements in working conditions at workplaces are lost as they scatter to the four winds.” Similar to the FTC’s proposed rule, however, General Counsel Abruzzo identified an exemption for individuals with managerial or ownership interests in a business or true independent-contractor relationships. Moreover, there may be circumstances in which a narrowly tailored non-compete agreement’s infringement on employee rights may be justified by special circumstances. While the enactment of these rules could render non-compete agreements an increasingly archaic subject matter for litigation, they could also usher in a new era of workplace disputes. Non-compete litigation currently generally involves employers attempting to enforce and prosecute alleged breaches of these restrictive covenants. Should the state and federal bans go into effect, party designations in lawsuits are likely to shift with employers finding themselves increasingly cast in the role of defendant. Although it is anyone’s guess as to when Bill S3100A will be signed into law, it is anticipated. Enactment (and enforcement) of the current FTC proposal and enforcement of the NLRB policy stance are also expected. The bottom line is that employers should begin compiling lists of operational non-competes and revisit form employment (and severance) agreements now to limit potential litigation claims down the line. Ryan T. Biesenbach is an Associate in Underberg & Kessler LLP’s Litigation and Labor & Employment Practice Groups. He focuses his practice in the areas of civil and commercial litigation and labor & 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 can be reached at (585) 258-2865 or rbiesenbach@underbergkessler.com. Reprinted with permission from The Daily Record and available as a PDF file here.

The site plan review process is one of several means that a town has for land development controls. Town Law Section 274-a covers the site plan review process in New York State, but it is a flexible statute that allows towns to tailor the procedure to their needs. Projects needing site plan review can range from small, simple structures to multi-million-dollar developments. Any municipal board may be designated by the town board to review and approve site plans. However, these tips will only refer to planning boards, as they are most often the board to hold this power. The following five suggestions will help allow for a smoother process of site plan review: 1. Review Your Town Code against New York State Law: Members of planning boards are required by state law to obtain a minimum of four hours of training per year. Training sessions held by New York State on the site plan review process will cover the process as it is laid out by Town Law Section 274-a. However, state law only provides the initial guideline, as each town has a separate code as well. Towns have flexibility in the site plan review process, and it is important for board members to be aware of the process as it is written in their town code. For example, under Town Law Section 274-a, site plan review is meant to take up to 62 days from when an application is accepted by the planning board. However, a town can include a shorter timeframe in their code. If the town’s code includes a 45-day timeframe for review, for example, this is the timeline that the planning board is required to follow. While the state law only provides for one phase of review, a town code might provide for a multi-step process, with a sketch plan and preliminary review phase. Board members should review their town code against the state law, and, if necessary, work with their town attorney to amend the code to allow the board as much time and flexibility as possible. 2. Decide What Level of Review is Best: Town Law Section 274-a only provides for one level of review. Under this law, the planning board accepts an application, reviews it, and makes their decision within 62 days (unless a public hearing is held). However, many towns have added additional preliminary review steps to their site plan review process. These additional steps are not provided for under Town Law Section 274-a, but they can be formalized if a town chooses to adopt a local law that outlines a multi-phase site plan review process. Not every town would benefit from a multi-phase review process. Planning boards and town boards should work together to consider what process would be most beneficial for their town and discuss adopting the appropriate local laws with their town attorney. If a town does choose to adopt a multi-phase review process, we would suggest incorporating a provision that allows for the preliminary review process to be waived at the planning board’s discretion, as some smaller projects do not require as much scrutiny. 3. (Almost) Always Have a Public Hearing: Under Town Law Section 274-a, a public hearing is not required during the site plan review process (though it may be required under your town code). A public hearing is always beneficial for a planning board as it allows the public an opportunity to provide input on the proposed project. This is a great way for the planning board to hear from residents about the project and to provide residents with more information. Additionally, when a public hearing is held, it lengthens the timeframe for the planning board to render their decision. Without a public hearing, New York State requires a decision to be rendered within 62 days of accepting a site plan application. When a board chooses to hold a hearing, the hearing must be held within 62 days of receipt of the accepted application, and then a decision must be rendered within 62 days of the hearing. This is not to suggest that a planning board should hold a public hearing simply to unnecessarily extend the review process. As many boards only meet once a month, however, a 62-day review timeline can be tight and without an extended timeline there is very little room for error, such as a meeting that is held without a quorum. Holding a public hearing allows for a more thorough review process by allowing public input and giving the planning board enough time to carry out its responsibilities. We would recommend incorporating a provision within the section of the town’s code on site plan review procedure that mimics Town Law Section 274-a by allowing for the extra time when a public hearing is held. Within that section, the code should also allow for the planning board to have the option to waive the public hearing for situations when they do not feel one would be beneficial. It is also important to note: a public hearing is always required in the subdivision review process and can be conducted simultaneously with the site plan review hearing. 4. Have an Escrow Agreement: Developers are required to pay for the town’s fees on experts brought in during the review process, such as the town attorney and the engineer. Once a project is complete, it can be difficult for a town to collect those fees from a developer – even more so if the project ends up not moving forward. Towns should require an upfront deposit to cover these fees. That deposit should be held in an escrow account that the town would use to pay bills from the experts that they have hired. This process should be governed by an escrow agreement that should be drafted by the town attorney. 5. Work Well with Developers: Today, projects that require site plan review and approval are widely varying. They can be small structures, such as a barn or a shed that is brought to the planning board by a neighbor. Alternatively, they can be large solar farm projects, brought in by multi-million-dollar development companies. The projects are wide-ranging, which means the level of sophistication of the developers will be as well. Some will need a little more guidance from the board, while more sophisticated developers will understand the process, and in either case might take issue with how the board is handling the procedure. Regardless, it is important to be professional and courteous with developers. The town should lead by example by doing its best to guide the developer in this process, such as by clearly outlining deadlines and explaining changes the board would like to the site plan. This support will ideally lead to cooperation on the developer’s part. Site plan review is an important town function as it helps to shape the character of the community. Town boards, planning boards, and town attorneys should cooperate to implement these suggestions to ensure the most efficient and smooth process possible. Reprinted with permission from the September/October issue of Association of Towns’ bimonthly magazine, Talk of the Towns & Topics, and available as a PDF file here. Veronica A. Devries is an associate attorney in Underberg & Kessler LLP’s Municipal Law and Corporate & Business Practice Groups. She can be reached at vdevries@underbergkessler.com or 585.258.2805.

Q: Should nursing homes and other long-term care facilities always seek arbitration of claims against them as opposed to a traditional lawsuit? A: Until recently, most facilities and their legal advisors would have likely answered “yes” to the question above with little hesitation. It has long been the belief of health care facilities, their attorneys, and their insurance companies that the arbitration forum is more favorable to a health care defendant than a courtroom or a jury. In an arbitration, the plaintiff (or the estate if the resident at issue is deceased) and the defendant facility present evidence and witnesses to a single arbitrator (usually an attorney), rather than to a judge or jury as would be the case in a trial. There are benefits to both plaintiffs and defendants in arbitration, namely that because it is a more streamlined process, it may cost less, and the parties may receive a decision far sooner than if they were to go through the full litigation process. Conversely, if an aggrieved resident (or his or her representative) chooses to pursue a lawsuit, the case can often take multiple years before the case actually goes to trial. Most trials involving claims against health care facilities involve juries, where six disparate members of the community will decide whether the plaintiff’s claims have merit, and if so, how much to award the plaintiff. It has long been the conventional wisdom that health care facilities should avail themselves of arbitration, as opposed to litigation, whenever possible. The rationale has been that arbitrators are less likely than juries to allow the emotions of a particular case to influence his or her award. Similarly, it has long been assumed that, even if an arbitrator finds in favor of the plaintiff, they will generally award less in damages than what would be awarded by a jury. To that end, health care facilities have long sought to include mandatory arbitration agreements in their admission agreements to compel disputes to be decided by arbitration rather than at trial. However, a recent decision from an arbitrator in Oswego County in a claim by a former resident against a nursing home illustrates to facilities, as well as their attorneys and insurers, that arbitration may not provide the “safety” that has been long assumed. In the Oswego County case, the plaintiff and his attorney initially filed a lawsuit. Sometime thereafter, the parties agreed to binding arbitration rather than a trial to resolve the case. The claim involved allegations that the nursing home allowed a pressure ulcer to develop on the resident’s left heel, ultimately resulting in a below-the-knee amputation following the resident’s discharge from the nursing home. The parties submitted a variety of evidence to the arbitrator, including the facility’s records, witness testimony, and expert testimony. After considering all of the evidence, the arbitrator found that the nursing home was negligent in the care provided to the resident, and that it violated various provisions of the New York State Public Health Law. The arbitrator then awarded nearly $2 million dollars in damages for pain and suffering and medical expenses. In all likelihood, one of the reasons that the facility and its attorneys agreed to arbitrate the claims was the belief that even if the arbitrator found that the facility was negligent and/or violated the New York State Public Health Law, any award to the plaintiff would be modest as compared to what a jury was likely to award if it found the facility negligent. This arbitrator’s decision obviously rendered that rationale incorrect. Moreover, the decision may be representative of a change that is taking place. While most arbitration proceedings are confidential, anecdotally the legal community is learning that arbitrators are increasingly willing to make awards to aggrieved residents or their families that are on par with (and sometimes exceed) awards made by juries in similar cases. Arbitration still may provide significant benefits to facilities in some cases, and arbitration should still be explored as an option depending on the facts of a particular case. However, there should be a recognition that going to arbitration does not automatically mean that health care facility defendants are protected or immune from adverse findings or large verdicts. Reprinted with permission from the August/September 2023 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here. Colin D. Ramsey is a Partner in Underberg & Kessler LLP’s Health Care, Labor & Employment, and Litigation Practice Groups. He can be reached at cramsey@underbergkessler.com or 716.847.9103.

Real Estate & Finance Practice Group Chair, Pat Cusato, was recently interviewed in an article about the rise in real estate deal cancellations by Scripps News, a national news network. The article was picked up by 61 TV station websites across the country, including Buffalo’s WKBW. “More Buyers Getting Cold Feet as Home Costs Rise,” highlights the growing trend of real estate contracts falling through and buyers backing out of deals. Pat described that with mortgage interest rates increasing in the last 18 months from the 4% range to 7% range, many buyers have either dropped from the market or reduced the price point for their search. “The interest rate increase is coupled with the general price increase of homes,” Pat said. “There are mortgage contingencies that could be written into a contract to protect a buyer from an unexpected increase in interest rates.” To read the full article on Scripps News, click here.

On September 14, 2023, Governor Hochul signed into law two pieces of legislation that effectively amended the New York State Labor Law (“NYLL”). These new laws will impact employer conduct with respect to accessing an employee’s personal electronic accounts, as well as adding additional responsibilities due to an employee at the time of separation. The first new law (S. 2518/A. 836) – which goes into effect December 4, 2023 – amends the NYLL by adding provisions to Section 201 of the statute. The new provisions now render it unlawful for an employer to: request, require, or coerce an employee or applicant to disclose any username, password, or other means for accessing a personal account through specified electronic communications devices; access an employee/applicant's personal account in their presence; or reproduce, in any manner, photographs, video, or other information contained within a personal account obtained by prohibited means. The law also makes it unlawful to retaliate against an employee/applicant that refuses to provide personal electronic account information. The definitions applied in this law are broad. For example, “personal account” is defined as “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.” Essentially, requests for information to access an employee’s personal account are now off-limits in most circumstances. Under the statute, “access” does not include an employee/applicant’s voluntary addition of an employer (or their representative) to their list of contacts on an electronic account. Employers may also require employees to disclose any username, password, or other means for accessing nonpersonal accounts that provide access to: the employer’s internal computer or information systems; accounts provided by the employer that are used for business purposes (if the employee was provided prior notice of the employer's right to request such information); accounts known by an employer to be used for business purposes; an electronic communications device paid for in whole or in part by the employer (if where the provision of or payment for such device was conditioned on the employer’s right to access and prior notice was given and agreed to by the employee); or that are required in complying with a Court Order. Nothing in this new law prohibits or otherwise restricts an employer from viewing, accessing, or utilizing information about an employee/applicant that can be obtained without any required access information, that is available in the public domain, or to photographs, video, messages, or other information that is voluntarily shared by an employee, client, or other third party wherein otherwise prohibited access was voluntarily given. The second new law (S. 4878-A /A. 398-A) also amends the NYLL by adding provisions to Section 590 of the statute. Employers making contributions to the state’s unemployment fund will now be required to provide employees with notice at the time of a permanent or temporary separation, reduction in hours, or “any other interruption of continued employment,” that includes: (1) the employer's name and registration number; (2) the address of the employer; and (3) “such other information as is required by the commissioner,” for example the dates of termination and associated cancellation of employee benefits as required by NYLL 195. This law will take effect on November 14, 2023. 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 Renee Segina Moore has joined the Firm as an Associate in the Litigation and Creditors’ Rights Practice Groups. Drawing on her background as a Certified Public Accountant, Renee leverages her audit and accounting experience to provide clients with the unique perspective of an attorney who not only understands the legal side of disputes, but also any financial implications critical to achieving client objectives. She represents businesses and individuals in litigation, negotiation, and mediation. She has experience preparing demand letters, legal pleadings, settlement agreements, appeals and Qualified Domestic Relations Orders in the courts and administrative tribunals. Renee also has experience representing clients in discrimination, harassment, and whistleblower retaliation cases, as well as matters involving the Rehabilitation Act of 1973, the Americans with Disabilities Act, and USERRA. Renee earned her B.S. from the University at Buffalo and her J.D. from the University at Buffalo School of Law. She is a member of the Monroe County Bar Association and the Rochester City Ballet Board of Directors.

In the wake of the tragic fires in Maui, troubling details are emerging regarding how utility companies are allocating resources to meet regulatory demands. At this writing, the Maui fires are reported to have taken approximately 115 lives, caused over 1,000 people to be missing and destroyed hundreds of buildings. The fires are the deadliest in the United States in over 100 years. While tragedies happen, questions are starting to build about the focus of local utility Hawaiian Electric. Initial investigations from sensor networks and cameras in areas of Maui point to trees falling on Hawaiian Electric power lines as the likely initial cause of the devastating fires. According to The Washington Post, a firm called Whisker Labs, which has advanced sensor networks that monitor grids across the country, recorded significant incidents with the system. Cameras in Maui also recorded “arc flash” incidents from when a power line faults or comes in contact with vegetation, another line, or gets knocked down discharging the power through sparks. While there were multiple fires burning in Maui on Monday, August 7, sensors detected two significant faults in the power grid in Lahaina early on Tuesday, August 8. In the brief time since the fire, several lawsuits have been filed against the utility claiming that the company failed to take proper steps regarding power line safety after a 2019 fire, including shutting down power lines prior to intense wind conditions to avoid problems with downed trees or lines sparking a fire. The lawsuits claim that the company failed to act for years to mitigate fire risks. Among other items, the lawsuits point to Hawaiian Electric filings which acknowledge in press releases and state filings that downed power lines and infrastructure where vegetation growth is not addressed may increase wildfire chances but did not act on the findings. In recent Wall Street Journal reports about the Maui fires, there are clear indications that the utility was aware for many years that unsecured power lines and increases in dry brush and vegetation across the island was leading to a substantial increase in wildfires. Significantly, The Journal reported that “the number of acres burned on the island soared to 39,000 in 2019, from 150 in 1999.” Further, that “roughly one-quarter of the state land in Hawaii is now covered by invasive grasses and shrubs.” Following the 2019 wildfire season, Hawaiian Electric obtained a report that concluded that the utility should do significantly more to prevent power lines from setting grasses and vegetation on fire. In the span of time since, the utility has spent a mere $245,000 on wildfire projects. Significantly, the utility instead spent millions to try and meet a 2015 mandate created by legislators and climate change activists that would require 100% of the utility’s electricity come from renewable sources by 2045. Rather than ensuring grid stability and public safety from confirmed wildfire risks, the company focused predominately on transforming electricity generation. The grid reliability and safety issues in Hawaii should serve as a caution to states on the mainland such as New York and California that are aggressively pushing climate change utility transformation. Forcing renewable energy transformation of power production should not come at the risk of public safety and grid security. As we have reported previously, New York’s Climate Leadership and Community Protection Act (“CLCPA”) calls for greenhouse gas reduction from 1990 levels of 40% by 2030 and 85% by 2050. Consequently, New York is seeking a renewable energy generation target of 70% by 2030 and 100% emissions free by 2040. These targets are exceedingly ambitious and are replete with siting, approval, implementation, and reliability concerns. A Final Scoping Plan (“the Plan”) was adopted by the CLCPA Climate Action Council in December 2022. The Plan will fundamentally change how New York residents live by banning gas heating equipment and cooking appliances. It requires adoption of zero-emission building codes and standards. All new residential construction projects in single-family and low-rise buildings will be required to install zero-emission equipment starting in 2025. The Plan requires energy-efficient heat pumps or other non-combustion heating systems in these residences after that date. High-rise residential and commercial buildings will be required to use zero-emission equipment in 2028. Significantly, New York residents with existing homes will be required to replace fossil fuel burning heating units that fail after 2030 with zero-emission systems. As a result, if you have a natural gas boiler or furnace and it fails in 2030, the Plan mandates that you replace it with an entirely new technology at unknown cost and availability. The Plan mandates transforming New York’s power system to meet the CLCPA standards. In particular, to meet the goal of an electric system that produces no emissions in 2040, it requires the deployment of 6,000 megawatts of solar by 2025 and 9,000 megawatts of offshore wind by 2035. The Plan also calls for deploying 3,000 megawatts of energy storage by 2030 in an attempt to create more in-state power and flexibility. While New York does not typically experience tragic wildfires like occurred in Maui, there are regular snowstorms, windstorms, and ice storms. All of which can shut down power generation and transmission facilities or destroy transmission lines. The availability, cost, and reliability of renewable power sources does not appear to have been factored into the Plan in any meaningful way. In the aftermath of the Buffalo Blizzard in December 22, where many lost their lives due to frigid conditions, what happens if New York rapidly transitions to untested and unproven green power sources in the future and major storms hit the state? In particular, will energy systems mandated by the Final Scoping Plan and CLCPA provide safe, reliable energy and heat for New York residents experiencing severe weather? George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation Practice Group and Chair of the firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation. George can be reached at gvannest@underbergkessler.com. Reprinted with permission from The Daily Record and available as a PDF file here.

Joining many municipalities across New York State, including the cities of Albany and Rochester, and the Town of Brighton, Monroe County now prohibits questions about criminal history on employment applications. The county passed the “Ban the Box” law (officially the Monroe County Fair Chance Employment Act) in early August 2023 to attempt to lessen the discrimination faced by jobseekers with prior convictions. Employers in Monroe County will still be able to do criminal background checks once they have made conditional job offers and then conduct the appropriate analysis under the New York Corrections Law to see if any conviction may be considered in the ultimate employment decision. A county spokesman noted that it has 800 jobs of its own open that may be easier to fill now and commented that it was motivated by the disproportionate impact that prior conviction discrimination has on Black and Latino applicants. Finally, the county cited the increased tax revenue and decreased recidivism rates the law will bring. The law does not apply to employers who must do mandatory criminal history checks, like the police and childcare entities. Employers who violate Ban the Box policies may face New York State Division of Human Rights discrimination complaints, which do not cost the applicant anything to file. If you have any questions regarding this or any other Labor & Employment law topic, please call Paul F. Keneally at (585) 258-2882 or email pkeneally@underbergkessler.com.

We are proud to announce that twelve attorneys were recently selected for inclusion in the 2023 Upstate New York Super Lawyers list and three additional attorneys were recognized in the 2023 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. The process selects attorneys on an annual, state-by-state basis using peer nominations and evaluations combined with independent research. 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 2023 Upstate New York Super Lawyers list and their recognized practice areas are: 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 2023 Upstate New York Rising Stars list and their recognized practice areas are: Justin P. Alexander – Real Estate Leah Tarantino Cintineo – Family Law Ericka B. Elliott – Creditor Debtor Rights

As we previously advised, on June 3, 2022, the New York State Legislature passed Senate Bill 9427A/A.10477 – the Pay Transparency Law. Since our earlier post, the bill was signed into law by Governor Hochul and is set to go into effect on September 17, 2023. This statewide mandate requires employers with at least four (4) employees to disclose the compensation or range of compensation in any advertisement for a job, promotion, or transfer opportunity. In addition to salary disclosure, employers must also disclose the job description for the position, if one exists. Unlike the proposed bill, the statute signed by the Governor removed the previous version’s requirement for employers to keep records of the history of compensation ranges and job descriptions. The law applies to postings for jobs that will be physically performed in New York. However, if the role reports to a supervisor, office, or other worksite in New York, the job posting will also require a pay range. Put differently, if a position will be fully performed outside of New York – even in a non-remote location – but will report to an office or manager within the state, the job posting will need to include the pay range. Given that the effective date of this law is quickly approaching, employers will want to revisit and, if needed, revise both internal and external job postings. 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.

In early August 2023, the National Labor Relations Board (“NLRB”) announced a revised, more restrictive legal standard to determine whether employer-created workplace policies and rules violate the National Labor Relations Act (“NLRA or the Act”). In Stericycle, Inc., 372 NLRB No. 113 (2023), the NLRB reestablished the framework by which workplace rules and policies are evaluated. Under the new Stericycle standard, the NLRB will analyze, through case-by-case review, whether an employer’s rule or policy has a reasonable tendency, in the eyes of an employee, to chill or inhibit employees from exercising their NLRA Section 7 rights, (such as the ability to engage in concerted activity related to the terms and conditions of employment). If the NLRB finds the rule or policy has such a tendency, the rule/policy is presumed unlawful and the burden shifts to the employer to rebut the presumption by showing that the rule advances a legitimate and substantial business interest that cannot be achieved with a more narrowly tailored rule. Under the new standard, the analysis will be based on the perspective of an employee “economically dependent” on the employer who considers engaging in activity protected by the Act. Given this decision, employers should review their workplace policies and rules for content and clarity. Key in this exercise is ensuring that policies are sufficiently tailored to achieve only their desired, and lawful, purposes. If you have any questions regarding this article, or how to determine if your employment policies are legally compliant, 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 happy to announce that three attorneys were selected by The Best Lawyers in America® as recipients of the 2024 “Lawyer of the Year” award in their practice areas. In addition to individual recognition, Best Lawyers also awards "Lawyer of the Year" accolades to individual lawyers who received the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the "Lawyer of the Year" for a specialty and metropolitan location per edition. The attorneys selected as a 2024 “Lawyer of the Year” and their areas of recognition are: James A. Coniglio – Municipal Law in Geneseo, NY Thomas F. Knab – Litigation – Construction in Buffalo, NY Anna E. Lynch – Elder Law, Rochester, NY Best Lawyers recognitions are based on an exhaustive Purely Peer Review® evaluation. More than 123,000 industry leading lawyers are eligible to vote, and Best Lawyers receives more than 20 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2024 edition of The Best Lawyers in America, more than 13.7 million votes were analyzed, which resulted in more than 76,000 leading lawyers included in the milestone 30th edition.