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The First Amendment, Social Media, and Off-Campus Speech: SCOTUS Weighs In

Posted: February 9th, 2022

What is going on in Pennsylvania? In November 2021, the Supreme Court of Pennsylvania affirmed the Commonwealth Court’s conclusion that a school district had improperly expelled a student, J.S., after J.S. had accused another student on social media of being a school shooter – outside of the school day and off school property. While the school district claimed that J.S.’s posts substantially disrupted the school environment, both the Commonwealth and Supreme Courts of Pennsylvania concluded that J.S.’s speech was protected under the First Amendment.

A few weeks later, in January 2022, the Commonwealth Court concluded that a Pennsylvania school district’s decision to expel a student, G.S., violated his constitutionally protected right to free speech. This expulsion resulted from the school district’s determination that G.S. posted a harassing and terroristic threat on the social media platform Snapchat in the form of violent song lyrics (“Everyone, I despise everyone! F*** you, eat sh*t, blackout, the world is a graveyard! All of you, I will f***ing kill off all of you! This is me, this is my, snap!”) that disrupted the school environment.

These cases came on the heels of another Pennsylvania case in which a school district suspended a student based on off-campus speech on social media. In this case, a cheerleader, B.L., essentially cursed out her high school on social media when she didn’t make the varsity team and was suspended from the junior varsity team as a direct result. Sound familiar? This case broke headlines last summer due to the perceived oddity of the Supreme Court weighing in on a cheerleader’s suspension. And while the case may seem utterly ridiculous at first blush, its impact on off-campus student speech remains important, especially as 2022 gets underway.

Tinker v. Des Moines Independent Community School District

To understand the First Amendment cheerleader case, Mahanoy Area School District v. B.L., it’s necessary to first address the 1969 landmark decision Tinker v. Des Moines.[1]

Tinker stemmed from a group of Des Moines public school students who wore black armbands to school to show their support for ending the Vietnam War. After the students were sent home for wearing the armbands, they sued the school district for violating their First Amendment rights. The District Court dismissed the case, holding that the school district’s actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed.

When the case reached the Supreme Court, the Court decided that public schools could regulate student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” However, in their decision, the Supreme Court pointed out that students do not lose their First Amendment right to freedom of speech when they step onto school property. A school cannot take action to limit a student’s freedom of speech out of fear of possible disruption rather than any actual interference.

Since then, in Hazelwood v. Kuhlmeier[2] in 1988 and Morse v. Frederick[3] in 2007,the Supreme Court has held that student speech can be regulated when indecent speech is uttered on school grounds, promotes illegal drug use, or that others may reasonably perceive as “bearing the imprimatur of the school” such as in a school-sponsored newspaper. These instances of regulation combined with the ruling that schools can regulate speech that rises to disorder, such as in Tinker, create a set of characteristics that gives schools additional license to regulate speech that takes place off-campus.

Mahanoy Area School District v. B.L.[4]

The Supreme Court ultimately revisited the issue in the April 2021 “cheerleader case.” Pennsylvania high school student B.L. tried out for her high school’s varsity cheerleading team as a freshman. After learning that she made only the J.V. team, B.L. posted a Snapchat story while she was at a local store (not at school) with the caption: “F*** school f*** softball f*** cheer f*** everything.” After B.L.’s friends on Snapchat and members of the cheerleading team saw the post, the message spread to the coaches and school administration, and the school ultimately decided to suspend B.L. from cheerleading for the upcoming year.

B.L. and her parents subsequently filed suit against the school district in the Middle District of Pennsylvania. The District Court found in B.L.’s favor, finding that her speech was made outside of school and did not cause substantial disruption as outlined in Tinker. The Court ordered the school to reinstate B.L. to the J.V. team. On appeal, the Third Circuit[5] affirmed the District Court’s conclusion that the school district’s punishment violated B.L.’s First Amendment rights; however, the Third Circuit added that Tinker did not apply because schools cannot regulate student speech occurring off campus. The school district then filed a petition for certiorari with the Supreme Court, asking the Court to decide “[w]hether [Tinker]…applies to student speech that occurs off campus.”

When news of this case first broke, many people scratched their heads and wondered how a high school cheerleader’s case about being kicked off the team made it all the way to the Supreme Court. Well, the Supreme Court decided in 1969 in Tinker that schools can regulate on-campus speech if it involves substantial disorder. Now, with this case, the Supreme Court could have made history by addressing a public school’s involvement in regulating off-campus speech. (Not so frivolous, after all.)

In the Court’s June 2021 opinion written by Justice Breyer, the Court noted that three features of off-campus speech often block a school’s efforts to regulate it. These features include that (1) a school rarely stands in loco parentis (in place of a parent); (2) off-campus speech combined with on-campus speech means all the speech a student utters during the full 24-hour day; and (3) since America’s public schools are “the nurseries of democracy,” schools should have an interest in protecting a student’s unpopular expression.

So, what did the Supreme Court decide? The Court found that the school district violated B.L.’s First Amendment rights in suspending her from the team. However, while this decision affirmed the Third Circuit decision, the Supreme Court clarified that schools can regulate some off-campus speech including serious or severe bullying, threats, and breaches of school security devices including material maintained within school computers. Even with this clarification, the Supreme Court declined to set forth a list of what constitutes as off-campus speech or a test to identify it.

Justice Breyer wrote, “We hesitate to determine precisely which of many school-related off-campus activities belong on such a list. Neither do we now know how such a list might vary, depending upon a student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself. Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special interest to prevent substantial disruption of learning-related activities.” The Court clearly believes that context matters when determining what qualifies as off-campus speech.

Sure, context matters. For instance, consider G.S. from the opening of this article. Was he just posting song lyrics, or was he posting violent threats that he would later carry out? And was J.S. bullying a fellow classmate by suggesting the classmate looked like a school shooter, or was he pointing out legitimate harm that the fellow student posed? It’s a thorny subject, one the Supreme Court nimbly dodged by suggesting that each individual case should be considered “in context.”

One of my previous SCOTUS blogs examined how individual Supreme Court justices use their published opinions and dissents to ask for a case that would challenge a precedent set by a prior case. The Supreme Court used Mahanoy to do something similar by inviting other litigants to come forward with cases in which the Court would be able to set forth a First Amendment rule clarifying what counts as off-campus speech. The Court’s decision highlights how they really used this case as an example, leaving it to future cases “to decide where, when, and how” off-campus speech can be regulated by school districts in connection with the First Amendment.

As Justice Alito put it in his concurring opinion (and as cited in the Supreme Court of Pennsylvania Middle District in the J.S. case), “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”

Lessons Learned

Turns out that a case about a cheerleader being kicked off her team due to a vulgar social media outburst opened the door to much more. Mahanoy had the power to force the Supreme Court to decide on the constitutionality of a public school’s right to regulate off-campus student speech. And while the Court determined that the school had violated B.L.’s First Amendment rights, the Court did not use the case to set a precedent on student speech made off-campus…and via social media.

This isn’t the last time a case will force courts to consider and reconsider Tinker as it applies to off-campus student speech. And as technology develops, it’s only a matter of time before the Supreme Court confronts the intersection between off-campus school speech and social media again. As Pennsylvania’s courts have already seen, more school districts will be facing the crossroad between taking action against students and their off-campus speech while at the same time not violating their First Amendment rights.

And while some of the school districts discussed here seemed perhaps a bit too eager to suspend or expel their students, the fact remains that school districts are often stuck in a difficult spot when balancing their students’ First Amendment rights with legitimate concerns about protecting students from bullying and potential violence.

[1] Tinker v. Des Moines Sch. Dist., 393 US 503 (1969).

[2] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).

[3] Morse v. Frederick, 551 U.S. 393 (2007).

[4] Mahanoy Area School District v. B. L., 594 U.S. ___ (2021).

[5] B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020).

Mergers and Acquisitions Primer: Capital Gains vs. Ordinary Income Tax

Posted: February 1st, 2022

By: Christine Malafi, Esq. email

This article is for informational purposes only. For tax advice or guidance, please consult your accountant directly.

The most common forms of businesses include sole proprietorships, partnerships, C-corporations, and S-corporations. When a business entity is sold, there is a tax impact based on the capital gain and ordinary income realized from the sale. When a business owner sells their business, the capital gain is generally the difference between the adjusted basis and sale price, and the ratio of capital gain v. ordinary income tax depends on the type of business and assets being sold. Let’s take a look at some considerations for different entity types – enough to make conversations with your accountant slightly less taxing.

Sole Proprietorships

In a sole proprietorship, a sale is treated as if each asset is sold separately. Most assets trigger capital gains taxes, but the sale of some assets, such as inventory and unrealized receivables, are taxed at ordinary income tax rates. It’s important to check with a tax advisor regarding the types of assets that incur ordinary income tax compared to capital gains tax.

Partnerships

For a partnership, the sale of a partnership interest generally results in capital gain or loss treatment to the selling partner. However, any part of the gain or loss from unrealized receivables or inventory items is subject to ordinary income tax rates.

C-corporations

When selling a C-corporation, the choice between structuring the sale as a stock or asset sale impacts the taxes levied. Since C-corporations are not pass-through entities, the company pays taxes on its income, and all income from C-corporations is treated as ordinary income. This means that C-corporations are taxed at ordinary corporate income tax rates as compared to capital gains tax rates.

Stock sale proceeds are taxed at the capital gains rate (single taxation) while asset sale proceeds are taxed at ordinary corporate income rates and then again at the individual level upon distribution to the shareholders (double taxation).

Sellers should be aware that shareholders will be taxed at different rates depending upon the type of distributions that the shareholders receive. For instance, ordinary, non-qualified dividends mean ordinary income rates while qualified dividends that meet certain requirements could mean capital gains rate. This could also be taxed as a liquidating distribution which is taxed at capital gains rates (it may seem like the same thing as a qualified dividend, however, if the individual has capital losses, they could be used to offset such gains).

S-corporations

When selling an S-corporation, both a stock and asset sale generally result in single taxation at the shareholder level. The U.S. Tax Code allows buyers and sellers of the stock of an S-corporation to make a section 338(h)(10) election so that a qualified stock purchase will be treated as an asset purchase for federal income tax purposes.

This election is made jointly by the target shareholders and the purchasing corporation and treats the transaction as if it were an asset sale rather than a stock sale. Although the shareholders sell stock to the buyer, they pay taxes as if they sold the company’s assets.

Since the company itself does not pay taxes on the sale of its assets, the income from the sale of its assets passes through to the shareholders, who are responsible for paying taxes.

Asset sales are calculated individually for each asset. If the company that sells the assets is an S-corporation that was a C-corporation within the last five years, then the S-corporation’s asset sale could trigger corporate-level taxes.

Goodwill

The goodwill of a business, the value of the reputation of the business, is taxed as capital gain income.

Non-Compete Agreements

Most of the time, the owner of a business being sold will agree not to compete with the business being sold for a period of time (and perhaps within a certain geographic area), and a value/portion of the repurchase price will be allocated to this agreement, the value of which will be taxed as ordinary income.

When working with clients on tax issues stemming from the sale of their business, always work with a tax advisor to avoid IRS-related issues regarding capital gains vs. ordinary income taxes.

Thank you Alan R. Sasserath, CPA, MS for his contributions to this article.

Interests vs. Positions: Guidelines for “Getting to Yes” and Avoiding Negotiation Jiu-Jitsu

Posted: November 29th, 2021

By: Joe Campolo, Esq. email

There is a single orange sitting on a kitchen table and two sisters want it. What is the solution to appease both sisters?

You can split the orange in half and give one half to each sister.
The older sister can receive the whole orange.
Flip a coin, and the winning sister will receive the whole orange.

Let’s say you split the orange in half to be fair to both sisters. Now, each sister has half of an orange. The younger sister proceeds to eat her half, but still feels hungry afterward. She throws the peel in the garbage. The older sister uses her half to zest the peel and make an orange cake. She has no use for the orange itself, so she throws it out. In the attempt to make it fair for the sisters by giving them each half of the orange, we’ve just committed a crucial negotiation error: we’ve assumed each sister’s position and incorrectly guessed their interests.

If we asked the older sister what she wanted to do with the orange, she might have said she needed the peel for her cake. If we asked the younger sister why she needed the orange, she might have replied that she wanted a snack. If we had asked these questions, we would have discovered a fourth solution to appease both sisters: one receives the peel, and one receives the fruit itself. A win-win scenario.

Of course, not every negotiation is this simple. However, understanding the difference between a person’s interests and positions could be the difference between negotiation success…or a miserable flop. A win-win negotiation is one in which both parties find alignment between their interests to create value for both sides. A negotiator’s position might be what they want (an orange), but their interest is why they want it (to eat it or use to make a cake).

In one of my previous negotiation blogs, I discussed how to utilize active listening as a powerful negotiation tool to gather information. Now, you can use active listening to gather information, and then determine a solution that aligns with the interests of both parties. Roger Fisher and William Ury outline this in their book Getting to Yes: Negotiating Agreement Without Giving In.

Here are some key considerations to find alignment:

Ask “why” and separate positions from interests

As in the orange example, don’t assume the opposing party’s position to be their underlying interest. Let’s consider an example that Fisher and Ury highlight in their book:

Two men disagree about a window: one wants it open, while the other one wants it closed. They go back and forth on leaving it open, closed, halfway shut, slightly ajar, and so on. Then a third person walks into the room and asks why the first man wants the window open. He replies that he wanted some fresh air. The third person asks the second man why he wants the window closed. He replies that he wanted to avoid the draft. The third person thinks for a moment and then proceeds to open a window in the next room, bringing in fresh air while avoiding the draft at the same time: a win-win.

When you find out the “why,” aka underlying interests, of the parties involved in a negotiation, it’s easier to find what both parties value to create a win-win scenario.

Ditch the “winner vs. loser” mentality

Too often, negotiations are viewed in black and white terms: there is a loser and a winner, and the name of the game is to “win.” Emotions run rampant, and the negotiation plays out with a “you vs. them” undercurrent. When this happens, try to frame issues as an open discussion in which the opposing party feels comfortable with you.

For example, if you’re trying to negotiate with the seller of a building you are buying, try not to get locked into a game of negotiation jiu-jitsu in which there’s a cycle of action and reaction. This happens when the seller names their price, you refuse and go lower, then they refuse and maintain their original price without budging. This mentality creates a situation where you as the buyer think the only way to win is to lock in the low price. Instead, try looking at the bigger picture and address the basic concerns of the opposing party.

Perhaps the building has issues with the roof or needs a structural upgrade. These discussions could be steered toward a suggestion for the current owner in which you imply that they are better off selling the building to you at a lower price than fixing it themselves. By framing it this way, both you and the current building owner could feel like winners.

Have your BATNA ready

We’ve talked about BATNA before on this blog. Fisher and Ury coined the term, which stands for “Best Alternative to a Negotiated Agreement.” Essentially, it’s a Plan B to provide negotiating power and serves as your bottom line in a negotiation. Having a BATNA at the ready helps you avoid doing negotiation jiu-jitsu in which you go back and forth with your counterpart until there is no solution to be found.

Let’s use the example of a car salesman and a would-be purchaser. If the person trying to buy a car wants to spend around $20,000 but would pay no more than $25,000, that means their BATNA is $25,000: the worst-case scenario that would still lead to a successful negotiation and outcome for both parties involved. For the salesman, their goal could be to sell a car for $27,000 but their BATNA could be $22,000. Therefore, if the salesman and the person interested in the car negotiate with their BATNAs in mind, the car could be sold for somewhere between $22,000 and $25,000.

In Summary…

Distinguishing what someone wants and why they want it, using win-win tactics, and having a BATNA prepared can help you avoid negotiation jiu-jitsu to gain a favorable outcome for both yourself and your negotiation counterpart. The next time you find yourself locked in a negotiation that seems like it has no end, try to dig deeper and uncover the underlying interests of the person you are negotiating with. You might find a hidden path to “getting to yes.”

NYSDOL Issues New Guidance on Adult Use Cannabis and the Workplace

Posted: November 8th, 2021

By: Arthur Yermash, Esq. email

Tags: cannabis, labor & employment

Can an employer take action against an employee for using cannabis on the job, prohibit cannabis possession in the workplace, or drug test for cannabis? These are just some of the many questions that employers and employees have been wondering since the legalization of adult-use marijuana in New York State on March 31 via the Marijuana Regulation and Taxation Act (MRTA).

CMM previously reported on the legalization of marijuana in April, taking a look at the new legislation and the workplace concerns of many employers and employees. Now, the New York State Department of Labor (NYSDOL) has issued an FAQ addressing some of these concerns with concrete answers for common situations and questions regarding adult-use cannabis and the workplace. Here are some highlights.

Discrimination

The FAQ reiterates that the MRTA prohibits employers from discriminating against employees based on the use of cannabis outside of the workplace and outside of work hours. However, it’s important to note that employees are only protected if they are over the age of 21 since the sale, use, or transportation of cannabis by individuals under the age of 21 is still illegal in New York State. The law does not explicitly require employers to report or fire employees under the age of 21 using cannabis on the job or discipline them in any way, but an employer can take action if they choose to.

An employer is also permitted to take action against an employee if an employer would be in violation of federal law, lose a federal contract or federal funding, or be unable to provide a safe and healthy workplace as required by state and federal workplace safety laws.

Articulable Symptoms of Impairment

Employers are also permitted to take employment action if an employee has “articulable symptoms” of cannabis impairment that impacts their performance on the job. The FAQ does not provide a list of what “articulable symptoms” of cannabis impairment are, instead describing the symptoms as “observable indications” that an employee’s performance has decreased or lessened. However, the FAQ cautions employers that articulable symptoms should not be confused with a disability protected by federal and state law.

Drug Testing of Employees

The FAQ states that employers are not permitted to test for cannabis unless federal or state law requires drug testing as a mandatory requirement of the position (for example: mandatory drug testing for drivers of commercial motor vehicles).

Also, when it comes to drug testing as a basis for an “articulable symptom” of impairment, a test for cannabis usage “cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment.” Additionally, employers cannot fire employees for the smell of cannabis alone.

Use at Work or During Work Hours

The FAQ makes it clear that employers are allowed to prohibit cannabis during work hours including paid and unpaid breaks such as lunchtime or when an employee leaves the worksite and then returns. Employers can also prohibit employees from bringing cannabis onto the property including at an employee’s desk or in a locker. If an employee is caught using cannabis on the job, it’s the employer’s decision whether to permit the employee to keep working or to take employment action. For more guidance as the NYDOL continues to develop its Office of Cannabis Management (OCM) and the rules and regulations surrounding the adult-use industry, please contact our Cannabis Law practice area chair, CMM Partner Arthur Yermash.

OPINION: How Municipalities Can Expand Public Engagement by Going Hybrid

Posted: October 13th, 2021

By: Scott Middleton, Esq. email

Tags: municipal

For those who hoped never to hear the phrase “new normal” again… we’re not there yet.

Yes, we are getting back to a “new normal” as the pandemic continues on. And while the Delta variant is posing continued challenges, many in-person activities have resumed. But for municipalities, with new updates to the New York State Open Meetings Law, maybe a hybrid style model is the best way to expand public engagement and follow the new guidelines.

New York Open Meetings Law

Governing state and local government meetings is a piece of legislation that covers public bodies such as municipalities. Known as the New York Open Meetings Law, or OML, Section 103 of the Public Officer’s Law states that public bodies at the state and local level in New York must give notice of meetings and allow the general public to attend at a facility that permits barrier-free physical access.

According to Section 102 of the OML, public bodies are defined as any entity that requires a quorum to “conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof.” Therefore, a public body is any state, county, or municipal government. And a quorum means a majority of body members needed to take formal action of matters of public business.

Essentially, the OML gives citizens the right to attend and listen to the deliberations and decisions that go into the making of public policy in an open and public manner, enabling them to educate themselves on current legislation and observe the performance of public officials.

New York State Response to COVID-19 and the OML

On March 12, 2020, former Governor Cuomo issued Executive Order 202.1. The order suspended the requirement that members of a public body physically convene; now, teleconferencing was permitted. Therefore, instead of providing a meeting location where the public could gather, if a municipality wanted to host a meeting, the Executive Order mandated that the municipality had to provide remote access to the general public.

In addition to suspending certain requirements such as an in-person and physical location, some new requirements were also established for the duration of the Executive Order 202.1 such as recording and transcribing meetings.

OML Fully Functioning Again?

On June 25, 2021, the State Disaster Emergency ended, removing the provision that suspended the Open Meetings Law. So this summer, the aspects of the OML related to in-person attendance (that were previously suspended) went back in effect.

Many municipalities found the shift back to in-person meetings startling. When the pandemic began, it had been a challenge for many municipal and state boards to gain familiarity with platforms such as Zoom. However, many members of the general public attending the meetings virtually quickly became accustomed to the ability to watch and participate in municipal meetings from the comfort of their own home. As more municipalities and the public became used to hosting and attending virtual meetings, it quickly became commonplace and convenient. The many positive outcomes of these meetings included that people who had never participated in the municipal process in the past were able to watch, listen and comment – estimates suggesting that public engagement actually increased during an otherwise dark time.

Virtual Access Extended

So with the Open Meetings Law fully functioning again, that means all government meetings need to be held in-person again, right?

Not so fast. Earlier this September, Governor Hochul signed legislation extending virtual access to public meetings. This means that meetings can be held remotely again as long as the public has the ability to view or listen to the meetings, and as long as the meeting is recorded and later transcribed.

For municipalities who were hoping for in-person meetings again but enjoyed the increased engagement of virtual meetings, perhaps a compromise with a hybrid style model is the best option.

What Would a Hybrid Style Look Like?

If a municipality were to host a board meeting implementing a hybrid style model, then the meeting could be held in the usual physical meeting spot in addition to on Zoom or another video platform. This way, public engagement could be maximized to its full potential and follow Governor Hochul’s legislation at the same time.[1]

A hybrid style could also address the matter of accessibility and inclusivity. People that don’t have cars or access to transportation could continue to attend virtual meetings and stay in the loop. After all, communities work best when the people living in them and the people leading them work together. Therefore, hybrid-style meetings are a solution to improve outreach, participation, and inclusivity. While the pandemic disrupted most of our lives, municipalities should capitalize on the opportunity to collaborate with the public and find more ways to include everyone.

Questions on how to navigate the Open Meetings Law now that virtual meetings have been extended? Contact us at 631-738-9100.

[1] If a municipality wishes to host a virtual meeting only (without a physical location tied to it), then Governor Hochul’s legislation allows this option.

NYS Appoints Cannabis Regulators, Moving Closer to Licensing Regulations

Posted: October 5th, 2021

By: Arthur Yermash, Esq. email

Tags: cannabis

Following the legalization of recreational marijuana and Governor Hochul being sworn in, the ball is finally rolling on establishing an Office of Cannabis Management (OCM) in New York State.

The OCM is the regulatory agency that will oversee New York’s legal cannabis industry. On September 1, the New York State Senate convened a special session to confirm Governor Hochul’s nominations: Chris Alexander as Executive Director of the OCM and Tremaine Wright as the Chair of the Cannabis Control Board (CCB). Alexander is a former policymaker for the Drug Policy Alliance and was involved in the creation of the Marijuana Regulation & Taxation Act. Wright is a former Assemblywoman and current Director of the Office of Financial Inclusion and Empowerment in the NYS Department of Financial Services.

OCM Executive Director Alexander’s role will be to oversee applications for licensing and permits for manufacturing, cultivating, processing, settling, storing and distributing cannabis. CCB Chair Wright will be responsible for the number of registrations, licenses and permits to be issued.

The approval of Governor Hochul’s picks means that New York State is moving closer to establishing regulations on cannabis licensing. The state legalized recreational marijuana this past spring after the issue took a backseat to the COVID-19 pandemic. Governor Hochul ordered the special session by saying she wanted “to jumpstart the long-overdue decisions pertaining to establishing cannabis in the state of New York.”

Following the NYS Senate’s special session to appoint New York’s cannabis regulators, on September 22, Governor Hochul announced her Cannabis Control Board member appointments: Ruben R. McDaniel, III and Jessica Garcia. As board members, McDaniel and Garcia will help create and implement the regulatory framework for New York’s cannabis industry. McDaniel is the President and CEO of the Dormitory Authority of the State of New York which provides construction, financing, and allied services. Garcia is Assistant to the President of the Retail, Wholesale Department Store Union, a national labor union representing workers along the food supply chain, as well as workers in non-food retail and healthcare.

The final two members of the five-person Cannabis Control Board include Adam W. Perry, Speaker Carl Heastie’s appointment, and Jen Metzger, Senate Majority Leader Andrea Stewart-Cousins’s appointment. Perry is an employment attorney, while Metzger is a former New York State Senator from the 42nd District.

Now that New York’s Cannabis Control Board is officially complete, and the Office of Cannabis Management has a director, that means that the regulatory process of legal marijuana can start to move forward with steps towards licensing, cultivation, production, distribution, sale, and taxation.

Visit our Cannabis Law practice area page to learn more about cannabis regulations, compliance, and licensing.

Hochul Activates NY HERO Act: What Should Employers Do Now?

Posted: September 13th, 2021

By: Arthur Yermash, Esq. email

Tags: coronavirus, labor & employment

This month, Governor Hochul announced that the Commissioner of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act.”

Former Governor Cuomo had previously signed the NY HERO Act into law on May 5, later amending the legislation in three main areas on June 11. The NY HERO Act requires employers to develop airborne exposure prevention plans and communicate them to employees. Under Governor Cuomo, the plans were required to be adopted by August 5 but were not required to be in effect. Now, Governor Hochul’s designation requires that the airborne infectious disease exposure prevention plans be activated by employers and abided by employees.

What Do Employers Need to Do Now?

Employers should understand what the New York State HERO Act entails. As we previously reported, the HERO Act has two main sections governing (1) the development and adoption of a workplace prevention policy for airborne infectious diseases, and (2) the creation of workplace safety committees.
Review the industry-specific templates posted by the New York State Department of Labor in consultation with the New York State Department of Health.
Ensure their airborne infectious disease exposure prevention plans meet the NYS DOL and NYS Department of Health minimum standards and model plans.
Communicate the plan to all employees. The prevention plan should be posted in the workplace in a visible location and distributed to all employees.
Lastly, employers and employees should follow their prevention plans and look out for any new guidance from the state.

CMM will continue to provide updates. For guidance on the NY HERO Act or adopting your own prevention plan now that plans must be activated, please contact us.

For more information on the NY HERO Act, read CMM’s “What Employers Need to Know about HERO Act Obligations” article here.

What Employers Need to Know About the New Federal Vaccine Mandate

Posted: September 13th, 2021

By: Arthur Yermash, Esq. email

Tags: coronavirus, labor & employment

On September 9, President Biden announced his six-part plan to combat the COVID-19 pandemic and Delta variant. Among these six points include vaccine mandates for employers with 100+ employees. Here, a look at Biden’s plan and what employers need to know regarding the new vaccine mandates.

All employers with 100+ employees must ensure their workers are vaccinated or tested weekly.

The Biden administration has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with more than 100 workers to introduce regular weekly testing or mandate the COVID-19 vaccine through an Emergency Temporary Standard (ETS).

A senior White House official has been quoted as suggesting that any business that does not comply with the new rules could face up to $14,000 in fines per violation; however, whether this ultimately becomes part of the OSHA rules remains to be seen. Companies will have to pay for the testing, but could be allowed to pass the cost on to their employees.

The mandatory vaccine or weekly testing will be implemented and enforced through OSHA’s ETS; however, no regulations have been released yet, which means there are no compliance dates as of this writing. When the ETS is released, it will most likely include similar guidance as the COVID-19 healthcare ETS that became effective this past June. The ETS will most likely supply fact sheets and summaries about the rule as well as implementation presentations and checklists. As for enforcement, OSHA will need to provide inspection procedures to establish uniform enforcement for employers.

OSHA is developing a rule requiring employees to be offered paid time off for vaccination and to recover if they are under the weather post-vaccination.

While earlier this year New York implemented up to four hours of paid leave to receive the COVID-19 vaccine (see DOL details here), OSHA will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS as well and the details remain to be seen.

Lastly, the plan requires the vaccine for healthcare workers at Medicare and Medicaid participating hospital and healthcare settings.

This action builds on the vaccination requirement for nursing facilities and will apply to nursing home staff as well as staff in hospitals around the country. This includes clinical staff, volunteers, and staff who are not involved in direct patient, resident, or client care.

CMM will continue to provide updates on the implementation of the “Path out of the Pandemic” plan. If you have questions on the new vaccine or testing mandate, please contact us.

“I’ll Take That One!”: How “Shopping” for Cases Makes SCOTUS the Most Powerful Branch of Government

Posted: August 18th, 2021

By: Joe Campolo, Esq. email

Tags: Supreme Court

During its 2020-2021 term, the Supreme Court agreed to hear 62 cases – a seemingly large number until you consider the nearly 7,000 it rejected. So how do the less than .01 percent of cases make it to the Supreme Court docket? You may think it takes superior scholarship and a little luck…and you’d be right. But sometimes you might just need to give the Justices the exact type of case they ask for.

The Process

Usually, the Supreme Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a state. Parties petition the Supreme Court to hear a case if they are not satisfied with a lower court’s decision. According to the Department of Justice, the primary means to petition the Court for review is to ask it to grant a writ of certiorari, which is an order issued by the U.S. Supreme Court directing the lower court to transmit records for a case it will hear on appeal. The Supreme Court will hear a case if at least four of the nine Justices agree to grant the petition for certiorari. This is called the “Rule of Four.” If three or fewer agree to grant the petition, then the Court must decline to hear the case.

How Do Justices Choose Which Cases to Grant Certiorari?

Sometimes, Justices might be interested in settling splits on an issue among lower Circuit Courts. This way, if a number of courts reach different conclusions about a law, the Supreme Court can step in and interpret the law and set a precedent for all the courts. Other times, the Court hears cases when they feel that lower courts have disregarded or misapplied Supreme Court precedent and the Justices want to correct it. Justices also choose cases to resolve conflict between federal and state laws. Through published opinions, it’s also not uncommon for Justices to encourage or even invite certain cases.

Wait, the Court Can Ask for Cases?

Yes, in opinions and dissents. Consider the Court’s rejection of Small v. Memphis Light, Gas & Water in April 2021.

In 1977, the Supreme Court decision in Trans World Airlines, Inc. v. Hardison established the precedent that an employer does not need to provide a religious accommodation to an employee that involves undue hardship on the employer. The Supreme Court rejected the opportunity to challenge this 44-year-old precedent when it declined to hear the Small case this spring.

Jason Small had worked as an electrician for over a decade at Memphis Light, but suffered an injury on the job in early 2013 that required him to change roles. Memphis Light offered him another position, which Small accepted, but with concerns that the new position would conflict with the practice of his religion. Small told the company that he attends services on Wednesday evenings and Sundays and asked for a different position or shift. Memphis Light denied the request. Small remained in the new position and used his vacation days when necessary to attend church. Eventually, Small asked to use vacation time on Good Friday, and the company refused. When Small missed work anyway, the company suspended him for two days without pay.

In 2017, Small sued Memphis Light, Gas & Water for violating Title VII of the Civil Rights Act of 1964, which requires employers to grant requested religious accommodations unless doing so would impose an “undue hardship” on them. On the eve of the trial, the District Court granted Memphis Light summary judgment, and the Sixth Circuit affirmed.

While the Supreme Court ultimately rejected Small, Justices Neil Gorsuch and Samuel Alito later wrote an opinion dissenting from the denial of the case in which they not-so-subtly voiced their desire for a case to be brought to the Court that could overturn Hardison. In their opinion about the Court’s rejection of Small, in which they referred to Hardison multiple times, Gorsuch and Alito wrote, “There is no barrier to our review and no one else to blame. The only mistake here is of the Court’s own making – and it is past time for the Court to correct it.” Using the medium of a public dissent, Justices Gorsuch and Alito voiced their opinion disagreeing with the other Justices that denied certiorari and advocated for the Court to correct what they deemed to be a past mistake.

In another published opinion, Justices Alito, Thomas, and Gorsuch concurred in the denial of certiorari of a 2020 case, Patterson v. Walgreen Co. However, despite their concurrence, and similar to the Small dissent, the Justices referenced Hardison. Justice Alito wrote, “I agree in the end that this case does not present a good vehicle for revisiting Hardison, but I reiterate that review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.” Essentially, while the three Justices agreed that Patterson v. Walgreen Co. was not the correct case through which to examine the precedent set by Hardison, they still invited cases that would challenge Hardison to come before the Court as a more appropriate “vehicle.”

History of Using Dissents to Invite Cases

The published dissent in the Small case and the concurrence in the Patterson case in which the Justices encouraged litigants in other cases to come forward that would challenge Hardison is not all that unusual. Justices have used published dissents as a way to show what cases they are looking for as well as solicit future attempts to win the “Rule of Four” needed to accept a case. The use of this practice has varied under different Chief Justices. Publishing dissents to garner support for cases was common under Chief Justice Warren Burger; however, Chief Justice William Rehnquist disliked the practice. Under Chief Justice John Roberts, publishing dissents to identify issues and express hopes for future cases has made a return.

While the Supreme Court doesn’t exactly have slim pickings when deciding which cases merit certiorari, they can encourage cases that challenge or address specific precedents to at least try and claim a spot on the Court’s docket. Therefore, it wouldn’t be surprising for more cases that challenge Hardison to petition the Court until one is finally granted review. Any middle schooler should know that the judicial branch of government can only interpret laws – not enforce them. Even Alexander Hamilton once said that the Judiciary branch would be the weakest of the three branches of government because it had no influence. But the practice of using dissents and majority opinions to ask for certain cases? That sounds like influence.