Adams Leclair LLP is a litigation law firm that concentrates its practice in commercial and construction advocacy throughout upstate New York. Headquartered in Rochester, New York, we provide specialized counsel, honed by decades of experience in state and federal courts at the trial and appellate levels. We also represent clients in various administrative tribunals from local planning boards and boards of assessment review to state and federal agencies, such as Financial Industry Regulatory Authority (FINRA), the New York State Department of Labor, the EEOC, and the National Labor Relations Board.
Our practice areas additionally include employment, municipal, real property tax, estate and trust litigation. In September 2019, we combined the talents of the construction litigation practitioners from Adams Bell Adams, PC and the experienced commercial litigators from Leclair Korona Cole LLP which has helped us better structure our clients’ business affairs in ways that anticipate and avoid conflict. We are proud of the reputation we have earned among our peers and our clients for vigorous advocacy and effective representation.
Anthony Adams has been named to the Government Relations Committee for the Associated General Contractors of New York State for 2021.
Adams is a construction and litigation attorney for Adams Leclair LLP in Rochester, New York and has volunteered to serve in this capacity to help AGC advance the interests of its members and contractors generally with New York State and its agencies and authorities that participate in the construction marketplace or that regulate the industry, including the Office of General Services, the Dormitory Authority, the State University Construction Fund, the Department of Labor and others. Additionally, there can be as many as 300 construction-related bills considered by state legislators each year. These bills address such issues as: prevailing wage and other labor law matter; bidding; state contracting, environmental issues and changes to the Transportation and Vehicle and Traffic Law. Adams will contribute his legal experience and expertise to AGC and its staff as needed to pro-actively push for legal and contractual changes to benefit the construction industry.
Adams has spent much of his 40+year career representing contractors and other construction industry participants in contract negotiations, claims, public works issues, labor relations, risk management and other general business matters.
As attorneys gain familiarity with the Appellate Division’s new rules, they should be aware of certain key e-filing provisions to ensure the clerk will accept their papers and they will not miss their opponents’ filings. In this article, attorney Jeremy Sher addresses common e-filing issues in appeals from lower court orders and judgments. Read the full article here.
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An important early step for an appellant is determining whether e-filing requirements apply. The E-Filing Rules excuse unrepresented parties and attorneys claiming specific exemptions from mandatory e-filing, but otherwise allow the departments to decide which types of cases must be e-filed. Since July 1, 2020, the Fourth Department has imposed mandatory e-filing in all civil and criminal matters.
One of the most critical deadlines in New York practice is the 30-day time period to “take an appeal” by, in most cases, filing a notice of appeal in the trial court. The E-Filing Rules add more steps.
Within 14 days of filing the notice of appeal, the appellant in an e-filed appeal must open a new appellate case in NYSCEF. This is done through the “Record Initial Case Info” option in the Appellate Court menu. The appellant must also e-file in the Appellate Division case, as a single PDF, a copy of the notice of appeal with proof of service and the order or judgment appealed from. Read more here.
Jeremy Sher is a founding partner at Adams Leclair LLP.
Planning for Business Succession and Avoiding Disputes: A Litigator’s Perspective on the Practical Impact of Contractual Buy-out Provisions
Buy-out provisions allow business owners to seek to reduce the disruption and uncertainty of future changes in ownership in shareholder, operating, or partnership agreements. Owners of businesses may eventually become non-aligned in their visions or interests for a variety of reasons. Perceived unequal contributions to the business venture is often a culprit. Others include the desired timeline for return on investment or retirement, and differences in risk tolerance. Differences in owners’ personality or management style also contribute to eventual conflict. Finally, non-alignment may exist at the outset between those owners involved in the management of the day-to-day operations of the business and “passive” owners who are not involved.
Eventual non-alignment of owner interests in a successful business of any significant duration is almost certain, and should be anticipated in the foundational agreements. If buy-out provisions are omitted, or no written agreement between business owners exists, then the statutory default provisions for ownership change are limited and not user-friendly. This equates to, at a minimum, great expense, delay, and uncertainty in the event of a dispute over the value of the interest to be obtained, and in many cases involuntary transfers of interests will be unavailable. This leaves the entity in a position where its owners desire a separation but the entity is unable to easily accommodate these wishes. The result can often be protracted disputes and lawsuits which hamstring the operations and potential of the business, if not result in its complete discontinuance. Opportunities to sell the business may be greatly hampered by owners’ disputes. Owner buy-out provisions seek to avoid this situation before the circumstances of disfunction actually arise.
Beyond the mere inclusion of buy-out provisions, the form that such provisions take in business owner agreements will be critical in the scope, length, and cost of the transfer of ownership interests. It is important that the owners’ agreement include the procedure for “involuntary” transfers in clear and unambiguous terms so that, if necessary, judicial review of the process will find clear evidence that it was followed.
Furthermore, the valuation process should be explicit, and made to conform with provisions in the CPLR that will expedite the valuation process and insulate that process from most collateral attacks. Simply providing that an owner’s interests will be “valued” at the time of the buy-out will not necessarily achieve that goal. Minority owners may require court intervention to gain access to information that is pertinent to the value of the involuntary purchase of their interests. Once all necessary information is obtained, two highly-qualified business appraisers can look at the same historical financial information and arrive at polar opposite valuations. Why? Because valuations start with historical financial results but then adjustments are made, discounts are applied, and growth rates are estimated by the appraiser hired by each party. Afterwards, a judge or jury may be required to determine the valuation number as the result of a failure to include specific valuation provisions in the agreement.that was left open an agreement. The eventual trial could take weeks and the litigation could last years. Indeed, simply gaining access to pertinent information about the business may require court intervention.
Business litigators may enjoy this struggle to achieve resolution, but clients usually do not. It can be avoided with clear contractual provisions that provide for an independent valuation according to a set process. Furthermore, CPLR Article 76 permits the proponent of the valuation to seek judicial confirmation through a more-expeditious special proceeding, as opposed to a full-blown action. Finally, the owners can agree in advance to a method of valuation that is not necessarily full fair market value, and can waive contrary statutory provisions. If the process is followed, the valuation itself cannot be collaterally attacked in court.
In sum, explicit provisions may help business owners avoid costly delays in the transfer of interests and the resulting harm to business prospects.
Steve Cole is a founding partner of Adams Leclair LLP and serves as the firm’s Managing Partner.
A little over a month ago, the United States Supreme Court heard oral argument in Fulton v. City of Philadelphia. Fulton challenges a decision by the city of Philadelphia to stop referring foster-care cases to a Catholic foster-care association because of its refusal, based on its religious beliefs, to certify same-sex couples as foster parents. But in addition to arguing that the city’s decision violates the First Amendment, Fulton also asks the Court to overrule its 1990 decision Employment Division v. Smith. If it did so, that would significantly change the way religious liberty challenges are litigated, including recent religious liberty challenges to New York’s COVID restrictions.
Smith and Strict Scrutiny
Before Smith, laws that created a substantial burden on religious exercise had to pass a test called “strict scrutiny” — they had to be justified by a compelling government interest, and they had to be the least restrictive means of accomplishing that interest. Smith changed this analysis by holding that a law does not violate the First Amendment, even if it burdens someone’s exercise of their religion, as long as the law is neutral toward religion and applies generally to the same conduct regardless of whether it is motivated by religion or not. In Smith, for example, the Court held that a state law that disqualified from unemployment benefits anyone fired for drug use was constitutional, even though it punished someone for only sacramental use of a small amount of peyote in a Native American worship service, because it applied to all drug use generally, instead of singling out religious drug use.
To be sure, Smith didn’t kill off strict scrutiny altogether. The Court later clarified in Church of Lukumi Babalu Aye v City of Hialeah that a law may single out religion and thus trigger strict scrutiny, even if it appears to be neutral and generally applicable on its face, if it targets religious exercise in application. In Lukumi, for example, a city enacted an ordinance prohibiting slaughtering animals that was neutral on its face, but that was motivated by anti-Santeria animus and that included exemptions that permitted a wide range of non-religiously-motivated animal slaughter, and in practice only prohibited a Santerian church from performing animal sacrifices. The court held that the ordinance had to pass strict scrutiny
But Smith’s “general applicability” test is still a low bar. The religious liberty challenge that gets past Smith is the exception, and the result has been a dramatic decrease since Smith in the number of religious liberty challenges to laws that burden religious exercise.
Free-exercise challenges to COVID Restrictions
Thus far, three religious groups have launched free-exercise challenges to Gov. Cuomo’s most recent set of restrictions issued in response to the COVID-19 pandemic. These groups argue that the attendance caps on religious services violate their first amendment right of free exercise. District courts in New York and the Second Circuit denied preliminary injunctions in these cases, finding them not likely to succeed on the merits, given Smith’s low standard. A divided Supreme Court reversed the Second Circuit’s denial, with a majority of the Court finding that the restrictions single out religious activities under Smith because the attendance caps apply specifically to religious services as opposed to other kinds of activities.
But if Smith were not the governing rule, then in order to trigger strict scrutiny, challengers to COVID restrictions would need to show only that the restrictions substantially burden their religious exercise, which is much easier than having to show that the restrictions specifically target religion. It would be much harder without Smith for lower courts to find no likelihood of success on the merits in such challenges.
Predictions are dangerous, but based on the oral argument last month, the reversal of the Second Circuit’s denial of an injunction, and the general trend of the Supreme Court’s receptiveness to religious liberty claims, the Court seems, in this writer’s opinion, sympathetic to the challengers in Fulton, but still more likely to continue to narrow Smith incrementally than to overrule it outright at this point.
If the Court takes the more drastic step of overruling Smith, the landscape will be even friendlier to such challenges, and we can expect to see a substantial increase of religious liberty challenges not only to COVID restrictions, but to all kinds of state action that burdens religious exercise. But even without overruling Smith, the Court is likely going to be increasingly sympathetic over the long term to religious liberty claims.
For more information contact Adams Leclair LLP at 585.327.4100 or info(Replace this parenthesis with the @ sign)adamsleclair.law.
1 Docket No. 19-123 (U.S. Sup. Ct.).
2 494 U.S. 872 (1990).
3 E.g., Sherbet v. Verner, 374 U.S. 398 (1963).
4 508 U.S. 520 (1993).
5 See generally, e.g., Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 SETON HALL L. REV. 353 (2018).
6 See Agudath Israel of Am. v. Cuomo, 98- F.3d 222 (2d Cir. Nov. 9, 2020); Soos v. Cuomo, 2020 WL 6384683 (N.D.N.Y. Oct. 30, 2020); Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 5994954 (E.D.N.Y. Oct. 9, 2020).
7 Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 6948354 (U.S. Sup. Ct. Nov. 35, 2020).
As the first vials of vaccines are starting to be distributed, employers are asking whether they can or should require employees to take the COVID vaccine when it becomes available.
New York State is implementing a phased roll-out of vaccines in accordance with guidance from the Centers for Disease Control. See the State’s plan here.
New York’s Phase 1 for high-risk health care workers is already underway, with the first dose of the Pfizer vaccine administered to a nurse in Queens on December 14. Priority will be given to healthcare workers in intensive care units, emergency units, and those providing emergency services. Vaccinations will then begin in nursing homes, first to long-term care facility workers and then long-term care facility patients.
In Phase 2 vaccines will be given to first responders (fire, police, national guard), teachers and school staff, other essential front line workers (pharmacists, grocery store workers, transit employees, etc.), and individuals who are high risk due to pre-existing conditions.
Phase 3 will see vaccines provided to those over 65.
Phase 4 is for all other essential workers.
And Phase 5 is for all other healthy adults and children.
The State’s phases could potentially be superseded by new federal guidelines or updated data on vaccine side effects.
No State or Federal Requirement to Mandate Vaccine, But That Could Change
As of now, no state or federal government agency would require employees to take the COVID vaccine. This could change on a state or federal level as new laws or regulations are issued.
Do You Want to Make the Vaccine Mandatory for Employees?
At this time there is no law, regulation or other guidance in New York State or federally that would prevent employers from requiring employees take the vaccine as a general policy.
The U .S. Equal Employment Opportunity Commission (“EEOC”) issued guidance on December 16, 2020 indicating that employers will be allowed to make vaccinations mandatory once they become available, with some exceptions. This is in line with prior guidance from the EEOC stating employers may require workers to take COVID-19 tests (to determine the presence of the COVID-19 virus) , may take employees’ temperatures before allowing them in the workplace, and may require workers who have symptoms of COVID-19 or who test positive to leave the workplace.
Also, in the past the EEOC and the Occupational Safety and Health Administration (“OSHA”) have issued guidance allowing employers to require vaccines during prior pandemics, such as smallpox and the H1N1 swine flu.
The standard under the Americans With Disabilities Act is that employers may make medical inquiries and administer medical tests if they are “job related and consistent with business necessity.” Many employers arguably will meet this requirement if they choose to require vaccination.
Can an Employer Fire an Employee Who Refuses to Get Vaccinated?
Generally, the answer is yes, with a few exceptions.
Employers are required to provide reasonable accommodations to people with disabilities that prevent them from receiving a vaccine under both the Americans With Disabilities Act and the New York Human Rights Law.
A minor allergic reaction to a vaccine usually is not considered a disability that entitles the employee to an accommodation at work. The Southern District of New York recently ruled that minor side effects experienced by an employee when taking the flu vaccine did not constitute a disability within the meaning of state or federal law, and did not excuse the employee from the requirement to take the flu vaccine as a condition of her employment. Norman v. NYU Langone Health System, No. 19 Civ. 67, 2020 WL 5819504 (SDNY Sept 30, 2020) (pending appeal).
The EEOC has issued guidance stating that if an employer has a mandatory vaccine policy and an employee indicates he or she is not able to receive a COVID-19 vaccination due to an actual disability, the employer must try to accommodate the employee’s disability prior to terminating their employment.
Employees may also qualify for an accommodation for sincerely held religious beliefs or practices.
An accommodation in these instances could include allowing the employee to work remotely, mask wearing, or certain shift schedules.
An employer may not be required to provide an accommodation if it would cause extreme hardship to the employer.
If there is no reasonable accommodation possible to an employee with a disability or religious belief precluding vaccination, then the employer may generally consider termination of the employee. In other words, if an employee with a disability cannot take the vaccine but can work remotely, the employer is required to allow him or her to work remotely.
Can an Employer Require Job Applicants to be Vaccinated?
The answer is probably yes. The EEOC’s guidance states that an employer may screen job applicants for symptoms of Covid-19, and take an applicant’s temperature, after making a conditional job offer, as long as the employer tests all new employees in the same type of job. It is anticipated the EEOC’s guidance with respect to vaccines will be similar.
Should My Company Enact a Vaccination Policy Now?
It is probably premature to enact a formal employment policy right now that would require employees to take the COVID vaccine. State and federal agencies may provide additional guidance on whether an employer may mandate vaccination, or which industries should consider mandatory policies.
Some in New York State are calling for mandatory vaccination by all people who are medically able to take the vaccine. A bill is pending in the New York State Assembly has would require most New York residents to get vaccinated, irrespective of their employers’ workplace policies.
The New York State Bar Association is recommending that the state consider mandating a COVID-19 vaccine, except for those exempted by doctors, in the event that insufficient numbers of New Yorkers take the vaccine on a voluntary basis.
At this point while state and federal regulations remain pending, depending on the industry, employers may want to institute a policy of recommending a vaccine rather than mandating it.
Stacey E. Trien is a partner with the law firm of Adams Leclair LLP. She focuses her practice on employment law and commercial litigation. She can be reached at strien(Replace this parenthesis with the @ sign)adamsleclair.law.