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Campolo Delivers Remarks Highlighting the Importance of the LI Innovation Park

Posted: February 11th, 2021

Joe Campolo, Chairman of the Innovation Park Task Force, delivered these remarks at the HIA-LI “Tradable Sectors & How They Impact the Economy” conference on February 10, 2021. Joe addressed the importance of tradable industries in the LI Innovation Park at Hauppauge, HIA-LI’s relentless efforts to grow these business clusters, and the momentous accomplishments the Task Force has achieved thus far. The panel included Matthew Brown, Vice President of Network Solutions & Technology, John Finn, Director of Leasing & Acquisitions at Damianos Realty Group, LLC, Devin Kulka, CEO of The Kulka Group, Anne Shybunko-Moore, CEO & Owner of GSE Dynamics, Inc, and Marc Blitstein, President & CEO of American Diagnostic Corp.

Good morning. Today we are here to discuss the tradable sectors that anchor the Long Island Innovation Park at Hauppauge, which in turn anchors the Long Island and regional economies.

Contained within the Park’s 11 square miles are about 1,400 companies run by some of the most innovative minds in the country – several of whom we are fortunate to have on our panel today.

Thanks to the HIA-LI’s tireless efforts, including those of the Innovation Park Task Force which I proudly chair, the economic output of the Park has been well documented over the past few years. So has the fact that it is the second largest industrial park in the country, the first being Silicon Valley. These facts attracted the interest of our friends at the Suffolk IDA who, along with the RPA, commissioned an Opportunity Analysis to do a deeper dive into the businesses that reside in the Park and come up with initiatives to further anchor the Park to Long Island’s revitalized economy.

Nearly two years ago, the IDA released the more than 160-page report, and the conclusions were staggering – in addition to verifying the prior economic analysis that had been conducted, this report also found that the Park has the largest concentration of tradable businesses not only on Long Island, but also is a full 20% above the national average for tradable business clusters. 

Why is this so monumental? Well, to a region’s economy, tradable industries are a very big deal. Every ecosystem must include non-tradable businesses – the things that directly support the personal needs of the neighborhood. Thus, every community will have barbers, gas stations, delis, laundromats, 7-11s, and so on. And while these businesses play an important role, they typically employ local people who don’t require enhanced skills and who on average receive lower wages. These businesses are also fully dependent on the immediate residents of that location to consume their goods or services; there is simply not a synergy of either workers or customers who are going to commute a great deal for them. Therefore, dollars from non-tradable industries are non-growth dollars – they are simply being circulated around an area, without new dollars coming in.

High performing ecosystems, however, will also include tradable businesses, which are the businesses that aren’t dependent on customers from their immediate neighborhoods to thrive – these industries include aerospace, biopharma, manufacturing, IT, and others who have chosen to be there for reasons other than direct access to customers. These businesses enhance any community they are in because they vastly increase the local tax base by paying higher wages – all of which greatly stimulates the local economy. Tradable industries also attract skilled workers to relocate here from other states and cities, which also greatly helps grow our tax base without having to continue to raise taxes. An ecosystem with too few tradable businesses suffers greatly because it finds itself simply recirculating dollars rather than growing the pie.

The Opportunity Analysis has shown that while the national average for tradable business clusters is 38%, that percentage is much higher – 58% – in the Park.  Having realized this staggering disparity, a large part of the investigation into the report focused on the “why” – why is this little 11-square-mile tract of land in the middle of Long Island such a hotbed for tradable industries, and the answer, almost uniformly, was this area’s access to a highly skilled workforce.

The excitement we all felt when the report was released two years ago seems more like two decades ago now that COVID dominates our daily lives. But the economic devastation of the past year only makes even more apparent just how critical these tradable businesses are to Long Island’s long-term sustainability. An economy with no tradable businesses will eventually collapse.

Thus, the Opportunity Analysis set forth a very detailed action plan of ways for all stakeholders – private business, government, education, and the HIA-LI – to partner and make sure that we keep this vitality alive in our Park and on Long Island.

I am proud to report that immediately following the Opportunity Analysis, our Task Force rolled up our sleeves and got to work. Already, we have presented the possibility of a workforce development center in the Park to the Long Island Regional Planning Council, which declared this project one of regional significance and issued a grant to further develop the initiative. We have achieved a renewable energy milestone in the Park with the installation of solar panels on the 35,000-square-foot roof of Long Island Cares. We have also worked with the Town of Smithtown to reclassify zoning in part of the Park, allowing developers to apply for exemptions to construct apartment buildings with ground-level retail space.

Just yesterday, our Task Force met to outline our plans for 2021. This is a group made up of leaders in business, education, and government who are dedicated to collaboration and finding points of engagement to move the needle and make an impact. I look forward to sharing the progress of the Task Force with the HIA-LI community.

During this process I have learned that not only is Long Island a national treasure, but we are a national model for how business and government should partner, and how bipartisan cooperation and support, rather than insults, is how we on Long Island operate and get things done.

CMM Prevails for Employer in Hard-Fought Summary Judgment Motion in Wage Case

Posted: February 8th, 2021

Achieving an excellent result for a client is always rewarding, but it’s particularly gratifying when that excellent result helps a client hit hard by COVID keep their business afloat.

CMM represents a fence installation company that was sued for various wage claims, including non-payment of overtime, by two individuals claiming to be former employees. Our client steadfastly denied that the plaintiffs were employees, explaining that they worked instead for a subcontractor. The plaintiffs’ attorney argued that our client and the subcontractor were “joint employers” and thus both subject to liability for unpaid wages.

These cases are often uphill battles for employers, but after discovery and depositions, it was clear that our client had not employed the plaintiffs. CMM’s litigation team, including Jeffrey Basso and Richard DeMaio, moved for summary judgment (essentially, asking the Court to find that there are no facts in dispute and to rule in our favor). In the motion, CMM argued that there was no evidence to support the “joint employer” theory.

This month, the Court agreed, issuing a decision that dismissed all claims. The Court wrote a detailed analysis of the factors of the various “joint employer” tests and found that CMM had clearly shown the absence of any triable issues of fact as to the plaintiffs’ employment. In granting our motion, the Court relied on much of what CMM argued and the cases we cited.

This outcome is a huge win for a client whose business was severely impacted by the pandemic. Had the case proceeded to trial, the client would have had an extraordinarily difficult time moving forward with their business. Thanks to CMM’s efforts, liability for the payment of wages to the plaintiffs is with the subcontractor, where it belongs, and our client’s business can continue on.

CMM Closes M&A Deal for Outdoor Recreational Company in Innovation Park

Posted: February 1st, 2021

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Campolo, Middleton & McCormick’s M&A team has successfully closed another deal, demonstrating the breadth of industries in which we deliver value to clients buying or selling a business.

Our client, Bliss Hammocks, is a wholesale company specializing in recreational products for outdoor living. The company is based in the Long Island Innovation Park at Hauppauge, recognized as the anchor of Long Island’s tradable economy. The transaction involved the sale of our client’s inventory and intellectual property rights to a major conglomerate of companies that design, manufacture, and sell outdoor power tools and equipment. The success of Bliss Hammocks reflects the changing economy of the pandemic, as Americans invest in recreational and outdoor activities.

Randy and David Ertman, owners of Bliss Hammocks, recognized CMM’s ability to close the transaction so efficiently. “I am very happy that we engaged you for this transaction,” Randy Ertman told CMM’s Don Rassiger, who led the deal team. “I enjoyed working with you and am looking forward to retaining you again on future transactions.”

CMM’s M&A team is focused on being dealmakers, not deal breakers – working to creatively keep deals moving efficiently toward closing. Contact us today for guidance on your sale, purchase, or buyout.

New Federal Regulations Passed Regarding the Classification of Independent Contractors vs Employees

Posted: January 26th, 2021

By Christine Malafi

UPDATE: As of May 2021, this rule has been rescinded. Click here for updated guidance.

On January 6, 2021, the U.S. Department of Labor (“DOL”) issued a final rule changing the standard determining if a worker is an employee or an independent contractor under the Fair Labor Standards Act (“FLSA”).[1] According to the DOL, the purpose of this change is to make it easier to identify which workers are employees covered by minimum wage, overtime, and other provisions of the FLSA. This new rule reaffirms an “economic reality” test to determine whether an individual is in business for himself (e.g., independent contractor) or is economically dependent on a potential employer for work (e.g., FLSA employee).

Federal and State Issue

The determination of whether a worker is an employee or independent contractor is both a federal and state issue. The DOL views misclassification as denying access to critical benefits and protections to which employees are entitled by law. Employee misclassification also reduces taxes paid to federal and state governments and lowers contributions to state unemployment insurance and workers’ compensation funds.

New York State Guidance

According to the New York State Department of Labor, independent contractors must be free from supervision, direction, and control in the performance of their duties. They are in business for themselves, offering their services to the general public. Signs of independent contractor status include, but are not limited to, a person who has an established business, advertises in the electronic and/or print media, sets their own schedule, and pays their own expenses.

An employer-employee relationship may exist (rather than an independent contractor relationship) if the employer: (1) chooses when, where, and how workers perform services; (2) provides facilities, equipment, tools, and supplies; (3) directly supervises the services; (4) sets the hours of work; (5) requires exclusive services; (6) sets the rate of pay; (7) requires attendance at meetings and/or training sessions; (8) asks for oral or written reports; (9) reserves the right to review and approve the work product; (10) evaluates job performance; (11) requires prior permission for absences; and (12) has the right to hire and fire.

Federal Guidance

The new federal guidance describes two “core factors” that are most probative to this question: (1) the nature and degree of control over the work; and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. Further, the test identifies three other factors that serve as additional guidelines in the analysis: (3) the amount of skill required for the work; (4) the degree of permanence of the working relationship between the worker and the potential employer; and (5) whether the work is part of an integrated unit of production.

  1. Nature and Degree of Control Over the Work
    • Whether the worker exercises substantial control over key aspects of the performance of the work (e.g., setting their schedule, selecting certain projects, working with little or no supervision, and performing work for others). The DOL states that requiring a worker to comply with health and safety standards, specific legal mandates, contractually agreed-upon deadlines, and insurance policies does not constitute the type of control under this factor.

  2. Worker’s Opportunity for Profit/Loss
    • Whether the worker has an opportunity for profit or loss based on their initiative (e.g., managerial skill and business judgment) or their investment (e.g., managing investments in, or capital expenditure on, equipment, materials, or helpers).

  3. Amount of Skill Required for the Work
    • Whether the work requires specialized skill or training that the employer does not provide.

  4. Degree of Permanence of the Working Relationship Between the Worker and Employer
    • Whether the duration of the work relationship is definite or sporadic. It should be noted that seasonal work does not necessarily show independent contractor status.

  5. Part of an Integrated Unit of Production
    • Whether the work is an element of the employer’s integrated production process for a good or service (e.g., if the work is analogous to a production line).

These factors are not exhaustive, and no single factor is dispositive. However, the DOL stated that if the core factors point toward the same classification (whether the worker is an employee or independent contractor), then the weight of those factors will most likely outweigh the additional factors.

The final rule was published in the Federal Register on January 7, 2021 and the effective date of the final rule is March 8, 2021. However, the Biden administration does not favor this rule and it is possible that they will delay its implementation. The Biden campaign’s labor platform included a commitment to restore the Obama administration’s aggressive wage-hour misclassification agenda. This would create a more rigid test for qualifying workers as independent contractors than this rule.

What if a Business Does Not Comply?

If a business is discovered to have improperly treated an employee as an independent contractor, the business will be held accountable for employment taxes for that worker, as well as unemployment insurance and workers’ compensation contributions, with associated fines and penalties.

If you have any questions regarding the classification of employees versus independent contractors, please contact us.

Learn more about this issue here.

Thank you to Daniel Axelrod for his research and writing assistance with this article.


[1] This rule is different from the prior factors used to distinguish employees from independent contractors. The prior factors were: (1) the nature and degree of the potential employer’s control; (2) the permanency of the worker’s relationship with the potential employer; (3) the amount of the worker’s investment in facilities, equipment, or helpers; (4) the amount of skill, imitative, judgment, or foresight required for the worker’s services; (5) the worker’s opportunities for profit or loss; and (6) the extent of integration of the worker’s services into the potential employer’s business.

Campolo Presses Elected Officials at HIA-LI Annual Meeting

Posted: January 25th, 2021

On January 22, 2021, CMM Managing Partner and HIA-LI‘s Immediate Past Board Chairman Joe Campolo moderated the 43rd HIA-LI Annual Meeting and Legislative Breakfast, attended by over 150 members of the business community. Joe reported on Long Island’s relentless push for recovery and hope in 2021. He then led a discussion with elected officials about the issues most affecting the business community. Panelists included U.S. Congressman Lee Zeldin, Nassau County Executive Laura Curran, New York State Assemblyman Mike Fitzpatrick, and New York State Senator Mario Mattera, with additional remarks by NYS Lieutenant Governor Kathy Hochul and Suffolk County Executive Steve Bellone. Read Joe’s full remarks below.

Good morning everyone. I’m Joe Campolo and I’d like to welcome everyone to our Annual Meeting and Legislative Program.

For the past three years, I have had the privilege of serving the HIA-LI and the Long Island business community as the Chair of the Board and it has been the honor of a lifetime. As my term as Chair now ends, and as we embark on a new and hopefully more prosperous year, I’m proud to continue to serve on the HIA-LI Board and as chair of the Long Island Innovation Park at Hauppauge task force. This task force is comprised of stakeholders and decision-makers from both the public and private sectors who will work together to help ensure the park is being utilized in the most productive way to help boost Long Island and the entire region’s economy. Unlike many other task forces, this one will be rolling its sleeves up and getting things done.

2020 tested all of us, to say the least – and things didn’t magically go “back to normal” when the calendar turned to 2021. Fortunately, Long Island has proven that we are a community of leaders. The way the business community adapted to the realities of the pandemic, took a deep breath, and kept moving forward – rather than be paralyzed by fear – is a testament to the strength of the human spirit. The dedication of our colleagues and neighbors is an example to our country and to the world. And while the national news would have us believe that humanity has turned on its head, we Long Islanders are more united than ever. We may have our disagreements, but in the end, we all have stuck together and helped each other through what will likely be the toughest year of our lives, and gave new meaning to the hashtag #LongIslandStrong.

Through it all, we have also seen that Long Island is a national model for how business and government should partner and that bipartisan cooperation with our elected officials is how we on Long Island operate and get things done. Terri [Alessi-Miceli] and I spent a good part of this past year interacting with many elected officials and agencies to advocate for the business community and never once did politics get in the way – there was only a true desire from all to want to help make our economy as robust as possible while keeping our families safe. Again, notwithstanding what the national news would have you believe, here on Long Island there were no Republicans and Democrats, only people helping other people, and families helping other families. In today’s world, this is a huge accomplishment and something we as Long Islanders should all be aware of and proud of.

So while our recovery continues to be a long and daunting road, our belief in our country and our democracy must remain strong, and we must continue to oppose injustice at every turn but also oppose hypocrisy with the same passions. Our resolve must remain fierce and our efforts must be relentless to move our economy and our initiatives forward. To help guide those efforts, we at HIA-LI are lucky to have my good friend Rich Humann, President and CEO of H2M Architects and Engineers, as our next Board Chair. Rich is a smart and well-respected leader, and, most importantly for this position, has been a tireless advocate for the Long Island and regional economy. His deep knowledge of Long Island and its infrastructure will be invaluable as we rebuild our way past COVID. And so, in our own version of a peaceful transfer of power, I’d like to introduce my friend and HIA-LI Board Chair Rich Humann.

Campolo Moderates HIA-LI 2021 Tradable Sector Panel

Event Date: February 10th, 2021

Join HIA-LI on February 10, 2021 from 9 a.m. – 10:30 a.m. for a Zoom webinar to hear about how tradable sectors:

  • Provide a reliable and resilient path to long-term economic growth
  • Bring new dollars into the region
  • Help define Long Island’s competitive advantage

Moderator Joe Campolo, Managing Partner, Campolo, Middleton & McCormick, LLP, and HIA-LI Immediate Past Board Chairman

Panel:

Matthew Brown, Vice President, Network Solutions & Technology

John Finn, Director of Leasing & Acquisitions, Damianos Realty Group LLC

Devin Kulka, CEO, The Kulka Group

Anne Shybunko-Moore, CEO & Owner, GSE Dynamics, Inc.and HIA-LI Board Member

Marc Blitstein, President & CEO of American Diagnostic Corp.

WEBINAR RECAP: Paycheck Protection Program as Amended by Economic Aid Act

Posted: January 18th, 2021

On January 15, 2021, Christine Malafi joined Gettry Marcus, CPA, P.C. for their continuing webinar series on the recently passed Economic Aid Act (“EAA”), which has amended the Paycheck Protection Program (“PPP”) and now includes an Employee Retention Credit (“ERC”). 

Some of the key areas that were discussed include:

  • SBA deadlines to apply for PPP 1 and PPP 2 loans through March 31, 2021
  • Business type eligibility (and ineligibility) including certain non-profit organizations
  • Calculating the maximum PPP loan borrowing amount
  • PPP loan terms, maturity date, and loan forgiveness application deadlines
  • Updated definition of the “Covered Period” to utilize a PPP loan
  • Expanded permittable uses of a PPP loan, including new eligible “Covered” expenses such as: 
    • Operations expenditures
    • Property damage costs
    • Supplier costs
    • Worker protection expenditures
  • Reapplying for a PPP 1 loan if all or a portion of the loan was originally returned or the borrower did not accept the full eligible loan prior
  • Employee Retention Credit (“ERC”)
  • and more.
VIEW WEBINAR REPLAY HERE.

Can Employers Mandate that Employees Receive the COVID Vaccine?

Posted: January 13th, 2021

Published In: HIA-LI Reporter

As of May 28, 2021, the EEOC has released updated guidance. Visit our updated article here.

Since the first vaccines were administered in mid-December, employers and employees alike have questioned whether the workplace can require vaccination as a condition of employment. It will likely be months before the vaccine is available to most Americans, and thus it may be premature for private sector employers to propose a “vaccination for return-to-work” policy. However, on December 16, 2020, the U.S. Equal Employment Opportunity Commission issued guidance regarding employers’ obligations for mandatory COVID vaccination programs.

Essentially, the EEOC guidance provides that employers can require that employees get vaccinated as a condition of returning to work if their vaccination policies comply with the Americans with Disabilities Act (“ADA”), Genetic Information Nondiscrimination Act (“GINA”), Title VII of the Civil Rights Act of 1964, and other workplace laws.

If an employee declines to get vaccinated based on a disability[1] or a “sincerely held religious belief,” the employer must offer a reasonable accommodation to the employee, such as working remotely.[2] If no accommodation is possible, [3] then an employer may prohibit the employee from entering the business if that employee presents a direct threat to the health and safety of persons in the workplace, but the employer may not necessarily terminate the employee. Employers should evaluate these four factors to determine whether a direct threat exists: (1) duration of the risk, (2) nature and severity of the potential harm, (3) likelihood that the potential harm will occur, and (4) imminence of the potential harm.

An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” An accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.[4] Prior to the pandemic, many accommodations did not pose a significant expense when considered against an employer’s overall budget and resources. However, the sudden loss of some or all of an employer’s income stream because of the pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).

Additionally, EEOC guidance provided that the administration of a COVID vaccine by an employer is not a “medical examination” for purposes of the ADA and administering the vaccine or requiring employees to present proof of vaccination does not implicate GINA.

If you have questions regarding mandatory COVID vaccines in the workplace, please contact us

Thank you to Daniel Axelrod for his research and writing assistance with this article.


[1] Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.

[2] On November 8, 2020, the New York State Bar Association passed a resolution urging the state to consider enforcing mandatory COVID vaccination, even if people object for “religious, philosophical or personal reasons.” The EEOC, however, did not issue any guidance on that resolution.

[3] If a job may be performed only at the workplace, there may be reasonable accommodations that could offer protection to individuals whose disability puts them at greater risk from COVID and who therefore request such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

[4] For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.