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Making Sense of the Executive Order Regarding “Essential” Businesses

Posted: March 25th, 2020

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Governor Cuomo’s Executive Order 202.8 requires that, starting March 22 at 8 p.m., all workers stay home, unless they work for essential businesses.

  • Defining essential businesses: In a companion document, the Governor identified 12 categories of essential businesses. Some are obvious, such as healthcare operations (including hospitals, labs, and nursing homes); essential retail (including grocery stores and pharmacies); and financial institutions (including banks). Others leave more room for interpretation, such as “essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses” and “vendors that provide essential services or products, including logistics.”
  • How much of a business’s functions are essential. Some businesses might serve both essential and non-essential functions. Only essential functions are exempt from the in-person restrictions.
  • Whether a business needs to apply for designation as essential. Businesses that fall under the 12 categories identified by the Governor do not need apply to be designated essential. Other businesses may submit a request to Empire State Development. Businesses with only one on-site employee are automatically exempt and also do not need to submit a request.
  • Penalties: Any business that violates the in-person restrictions is subject to the same penalties imposed by Section 12 of the Public Health Law, which provides for a fine of between $2,000 and $10,000 per violation.

Please contact us for guidance on your particular situation.

Links courtesy of the New York State Bar Association

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

Information about NYS Executive Order Addressing Financial Institutions and Financial Hardship

Posted: March 22nd, 2020

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On March 21, Governor Cuomo issued an Executive Order stating that banks (those subject to the jurisdiction of the NYS Department of Financial Services) must grant a forbearance to any person or business facing financial hardship as a result of the COVID-19 pandemic for 90 days. If they do not, it would be deemed “an unsafe and unsound business practice.”

The Department of Financial Services has been ordered to “ensure under reasonable and prudent circumstances that any licensed or regulated entities provide to any consumer in the State of New York an opportunity for a forbearance of payments for a mortgage for any person or entity facing a financial hardship due to the COVID-19 pandemic.”

An application will be created to be made available to consumers, and applications “shall be granted in all reasonable and prudent circumstances solely for the period of such emergency.” The Superintendent may issue rules regarding ATM fees, overdraft fees, and credit card late fees to be restricted or modified in light of the pandemic as well.

We will continue to report on this Executive Order as more information becomes available.

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

New York State on PAUSE: What You Need to Know

Posted: March 21st, 2020

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The following information is from the New York State Department of Health as of March 21, 2020. Learn more here.

  • New York State on PAUSE: In New York we know that Policies Assure Uniform Safety for Everyone.
  • 100% of the workforce must stay home beginning Sunday, March 22 at 8PM, excluding essential services. 
  • All non-essential gatherings of individuals of any size for any reason are temporarily banned.
  • New York State has has identified two million N95 masks for purchase and will send one million to New York City and 500,000 to Long Island.
  • Department of Motor Vehicles offices are temporarily closed for in-office visits. Online transactions, including for license renewals, are still be available. License and permit expirations will be extended.
  • Governor Cuomo is visiting four sites that have been identified by the Army Corps of Engineers for temporary hospitals.
  • Enacting Matilda’s Law to protect New Yorkers age 70+ and those with compromised immune systems 
    • Remain indoors
    • Can go outside for solitary exercise
    • Pre-screen all visitors by taking their temperature
    • Wear a mask in the company of others
    • Stay at least 6 feet from others
    • Do not take public transportation unless urgent and absolutely necessary
  • All barbershops, hair salons, tattoo or piercing salons, nail salons, hair removal services and related personal care services will be closed to the public effective Saturday, March 21 at 8:00PM.
  • Casinos, gyms, theaters, retail shopping malls, amusement parks and bowling alleys are closed until further notice. Bars and restaurants are closed, but takeout can be ordered during the period of closure.
  • Testing is free for all eligible New Yorkers as ordered by a health care provider.
  • Your local health department is your community contact for COVID-19 concerns.  

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

Coronavirus-Related Suspension of NYS Laws – March 21, 2020

Posted: March 21st, 2020

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NOTE: Please see our updated post dated April 7, 2020.

Under Executive Order 202.8, Governor Cuomo has suspended and tolled through April 19, 2020 any specific time limit for the commencement, filing of or service of any legal action, including time limits in the Criminal Procedure Law, Family Court Act, Civil Practice Law, Court of Claims Act, Surrogates Court Procedure Act and Uniform Courts Act.

The Governor also suspended sections of the vehicle and traffic law related to the expiration of driver’s licenses, non-driver IDs and vehicle registrations that expired on or after March 1, 2020.

A provision requiring shareholder meetings to be noticed and held in person has been suspended.

Finally, the Governor expanded the authority of the Commissioner of Taxation and Finance to abate interest for a period of 60 days for taxpayers required to file returns for sales and use taxes for the period that ended February 29, 2020.

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

COBRA Considerations for M&A Transactions

Posted: March 18th, 2020

By: Christine Malafi, Esq. email

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Business owners: are you aware that during a business reorganization, merger or acquisition, stock transfer, and/or asset sale, you may be required to offer continuous COBRA (Consolidated Omnibus Budget Reconciliation Act) medical coverage to qualified employees?

Recent IRS regulations provide that employees who are let go from a position or whose employment status changes as a result of a business reorganization may qualify for continued COBRA coverage under the law. M&A transactions, stock transfers, or asset sales could create an overlap in job tasks where not every employee is guaranteed a continued position after the dust settles from a reorganization, and, therefore, such business reorganizations are “qualifying events” under COBRA.

Under federal and state laws, a qualifying event legally obligates the reorganizing entity to provide COBRA coverage and all appropriate notifications to the affected employees who paid into a healthcare plan through their workplace during the qualifying period. If the reorganized group no longer maintains a healthcare plan after the sale, the “new” entity (“purchasing entity”) is legally required to provide COBRA coverage with all notice requirements if: 1) the purchasing entity maintains a group health plan, and 2) in the case of an asset sale, the purchasing entity is a successor employer, meaning they hired most of the same employees to work the same jobs when continuing business operations.

Businesses should also be aware that although the parties involved in an M&A transaction may assign responsibility for COBRA coverage among themselves within the contract, if the designated entity defaults on its obligation, the party legally required to provide continued insurance coverage under the COBRA statute will not be absolved of the contracted-away obligation.

The requirements on both the selling and purchasing side vary based on the type of business transaction occurring, as well as on its outcome. Please contact our office to discuss your particular situation.

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

New York’s Frequency of Pay Law and Why Employers Should Check Their Payment Practices

Posted: February 25th, 2020

By: Don Rassiger, Esq. email

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New York State employers, are you aware that “manual workers” are required to be paid weekly? If they’re not, employers may be on the hook for back pay, attorneys’ fees, damages, and more. If you’re wondering whether you employ “manual workers” and what your obligations are under New York law, read on.

Several recent court cases[1] have established that the definition of “manual worker” for private sector employers is very broad under New York’s “Frequency of Pay” law. Per New York State Labor Law, a manual worker is a “mechanic, workingman or laborer,” but the NYS Department of Labor (DOL) looks at the duties the worker performs, not the job title, and therefore an employee can also be classified as a manual worker if he or she spends more than 25% of the workday involved in physical labor. “Physical labor” includes a variety of physical tasks and is not limited solely to heavy lifting.[2]

Essentially, whether an employee is a “manual worker” depends on the number and nature of physical tasks the worker performs daily as part of his or her job. The DOL has previously determined that food service workers, mailroom personnel, janitorial staff, hairdressers, pizzeria workers and chauffeurs can all be classified as “manual workers.” In their clarification opinions on the subject, the DOL has stated that physical labor or physical tasks cover a wide range of activities “too numerous to list.” The DOL recommends prudent employers pay their workers weekly if they feel that they might fall under the category of “manual workers.” (Note: there are also specific payroll requirements for railroad employees, who must be paid on or before the Thursday of each week, and salespersons working under commission, who must be paid per the provisions in their employment agreement, but not less than once a month and not later than the last day of the following month for which they are being paid. Please contact us with questions.)

Employers should take this opportunity to review their payment practices and pay schedule to ensure that they are paying all manual workers on a weekly basis in accordance with New York State law.

Please contact our office to discuss your particular situation.


[1] Two 2019 court cases argued under NY Labor Law § 191 (1)(a), highlight a potential area of noncompliance for New York employers. Both the employers in Scott v. Whole Foods Market Group, Inc., 18-CV0086(SJF)(AKT) 2019 WL 155924 (E.D.N.Y. April 9, 2019) and in Vega v. CM and Assoc. Construction Management, LLC, Slip Op 06459 Decided on September 10, 2019, were found to be in violation of the frequency of pay requirement in Section 191 (1)(a) of the Labor Law, despite paying their employees on a regular bi-monthly basis.

[2] Per NYSDOL Op. Ltr. RO-08-0061 (Dec. 4, 2008): Hairdressers cut and style hair. However, the general job duties of a hairdresser, in addition to cutting, coloring, and styling hair could also involve washing hair, cleaning the hairdresser’s own work stations, and cleaning wash sinks, equipment, and other shared work spaces in the salon. Since the cutting and styling of hair, along with any of these other tasks, necessarily involves physical labor, such employees would be considered manual workers.

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

Curb Your Enthusiasm: How Overconfidence Can Kill the Deal (And What To Do About It)

Posted: February 20th, 2020

By: Joe Campolo, Esq. email

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You’ve just left the negotiation table, and you know it went well – it’s in the bag! Except it’s not, and later it turns out that the deal is dead. Confidence is a critical quality in strong negotiators, but too much can cloud your judgment. Consider the steps below to rein it in and ensure your confidence is an asset, not a liability.

Embrace the unknown. Sure, you’re a great negotiator, you did your research, and you’re feeling completely prepared for your negotiation. This may be true, but try thinking objectively – a smart negotiator accepts that uncertainty will always be a fundamental part of any negotiation. Acknowledge that no matter your skill, you can never perfectly predict an outcome. You’ll be more willing to propose (and accept) mutually beneficial compromises, and you’ll be a better negotiator for it.

Play devil’s advocate. Before a difficult negotiation, find someone whose opinion you trust (it doesn’t have to be a colleague) and get their opinion on your approach. When you’re in the thick of researching for an upcoming meeting, you might be in too deep to realize something obvious. An outside observer could provide some critical advice, and maybe deflate your ego a bit (all in the interest of personal growth, of course).

Accept your faults. A healthy amount of humility would do us all some good. Before any negotiation, be sure to look not only for things that can work to your advantage; take the time to look into factors that could work against you and use it as an opportunity to come up with solutions. Do you have a tendency to talk over your opponent, causing them to get aggravated and raise their voice? Are you prone to stick too firmly to your convictions, bringing the meeting to a halt because no one will budge? Take a hard look at your negotiating tactics and prepare some resolutions before your next meeting. You may even find a way to work a fault to your advantage.

Confidence is the bread and butter of any negotiator – after all, how could you get anything done without it? None of us are perfect, however, and you’d be wise to use some of these techniques if you find that your deals keep hitting roadblocks. Confidence is only one of the tools in your arsenal, and you should hone it just as you would any other skill.

Renegotiating a Bad Deal

Posted: January 9th, 2020

By: Joe Campolo, Esq. email

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Ever negotiate a deal and happily put it to bed, only to have to revisit it months or years later? Every negotiator has ended up with an agreement that no longer suits their needs, or their adversary’s, and must go back to the table to turn the lopsided deal right again. But the dynamics of renegotiation aren’t the same as negotiating for the first time, and renegotiating what you thought was a done deal comes with its own set of pressures. Read on for tips on renegotiating effectively.

  1. Identify the key issues: Are you the party initiating the renegotiation? Before approaching the other parties, make sure you have a clear idea of what is wrong with the current contract. Look at the role each party plays in causing the problem and how everyone, not just you, is affected by it. Then decide which issues are most important. You may not be able to resolve everything. Plan to address your biggest problem first. On the receiving end of a renegotiation request? Analyze and understand what’s critical to the other side, what points you can’t budge on, and where you may have some room to negotiate. Decide if it’s worth giving a little to avoid the deal falling apart – or if it isn’t.
  2. Propose a renegotiation: If you’re the party seeking the renegotiation, once you’ve identified the issues, confront all parties involved and actually propose a renegotiation. Clearly articulate why you view components of the contract – or results that came out of the contract – as problems, and back that up with convincing evidence. Odds are that the opposing side will be willing to sit down and consider alternatives. Most people have a desire to be fair, especially if you’re able to back up your claims with evidence – and even if they’re not feeling charitable, they may choose renegotiation over an expensive lawsuit.
  3. Understand the dynamics: Negotiations for new business deals are often positive, with the parties sharing an optimistic view of the deal’s potential. But renegotiation often takes place somewhere between dashed expectations and the threat – or actual filing – of a lawsuit. Understand that the same negotiation strategies you employed the first time around may not be the right choice now, and that you and your adversary know more about each other than before. This reality can be either a curse (you let your adversary exploit what they know to their own advantage) or a blessing (here’s an opportunity for you to use what you learned during the first go-round to get a more advantageous deal). 
  4. Create value: A gain for you doesn’t need to be a loss for them – it’s in your best interest to provide some benefit to the opposing party in your proposed resolution. You’ll accomplish nothing if you both enter the renegotiation unwilling to give an inch. Create an atmosphere of cooperation and see how you can come to at least a win-not-lose solution.
  5. Take your time: With urgent problems, it’s common for negotiators to push for a quick fix to alleviate the stress. But the flawless plan you negotiate today may not work for you three years from now. (Isn’t that why you’re at the renegotiation table in the first place?) Take the time to consider negotiating shorter-term deals that will allow for natural breaks for renegotiation. Both parties can come back to the negotiation table and discuss what works for their businesses after the short contract concludes.

Whether you want to renegotiate because your original plan has unintended consequences, or you just want to see if you can get more out of your deal, keeping the above tips in mind will help your renegotiation plan succeed.

The Difference Between Empathy and Sympathy in Negotiation (And Why It Matters)

Posted: November 25th, 2019

By: Joe Campolo, Esq. email

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The Chinese general and military strategist Sun Tzu famously wrote that the “supreme art of war is to subdue the enemy without fighting.” Using empathy at the negotiation table is the modern-day embodiment of this strategy. 

A fundamental human need is to feel accepted, validated, and understood by others. This reality means that negotiation strategy is really about psychology. To get from Point A to Point B, the skilled negotiator must exploit psychological principles – and this means empathy must play a role.

Many negotiators view empathy and sympathy interchangeably, and dismiss both as weak. Don’t confuse empathy with sympathy! The difference is subtle but critical. Listen for the difference:

  • Sympathy: “I understand how you feel. I feel terrible for you.”
  • Empathy: “I understand how you feel, and I understand why you feel that way.”

What’s the difference? Merriam-Webster defines sympathy as the “inclination to think or feel alike,” a “feeling of loyalty,” and the “tendency to favor or support” – in essence, agreement. Sympathy almost never has a place at the negotiation table. In the negotiation of a business deal or at settlement discussions, few clients would want to hear their lawyer say to their adversary, “I get it – I agree it’s terrible what you went through. So here’s the check you asked for.” The sympathetic negotiator may not be much of a negotiator.

But the empathetic negotiator approaches things differently. Consider the Merriam-Webster definition of empathy: “the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings thoughts, and experience of another.” The use of “vicariously” is critical here: unlike the sympathetic negotiator, the empathetic negotiator understands her adversary’s position, but doesn’t actually experience it or necessarily agree with it. Instead, she uses empathy to let the adversary know that she hears and understands him. By tuning into her adversary’s emotions instead of just the words, the empathetic negotiator shows that she “gets it,” which helps the adversary open up and share additional information that the empathetic negotiator can use to her advantage. Think, “I get it – I understand why you feel that way. So what if we…”

Think how much more effective a negotiator you can be if you understand what’s important to your opponent and the factors that got him there. Rather than taking a shot in the dark about what might work or keeping the focus solely on you (or your client), when you understand your adversary and use his own views to shape the conversation, you can strategize around that and go a lot further, a lot faster. 

Too many negotiators are hell-bent on appearing authoritative, unflinching – like the “tough guy,” willfully ignorant of the forces shaping the other side. But that’s an incredibly weak negotiation strategy. Using empathy as a tool to make your adversary keep talking and feel comfortable is key to letting the other side get what you want.