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Open Meetings Law Will Require State Agencies To Live Stream Meetings

It is about time that the State of New York finally catches up to what the town of Penfield is already doing!  For many years, local towns like Penfield have have broadcast public meetings over their local public access cable television stations.  Several years ago, Penfield began broadcasting public meetings–both hearings and work sessions–in full high-definition on the Internet.  Once that happened, you no longer needed to have access to the town’s cable access channel.  You can now watch meetings of the town, zoning, and planning boards from anywhere in the world–as long as you have Internet access.

On December 11, 2015, the State of New York enacted an amendment to the Open Meetings Law (L.2015, ch.519), adding a new subdivision (f) to Section 103 of the Public Officers Law.  Starting next month, open meetings of agencies (which for the purposes of this new subdivision generally include only state agencies) shall be broadcast to the public and maintained as records of the agency.  The new subdivision also generally requires agencies to stream such meetings in real-time, and post video of the meetings on the agency’s website within and for a reasonable time after the meeting.  One caveat, though, is that agencies are only required to stream and post the meetings if they already maintain a regularly and routinely updated website, and if they already utilize a high-speed Internet connection.  Don’t all state agencies maintain updated websites, with high-speed connections?  They should.

Even though the Governor was criticized for his recent FOIL vetoes, this amendment gives good government groups at least one small victory this term.  As noted by the sponsor’s memorandum in support of the legislation:

This legislation would help increase transparency by allowing people to virtually participate in open meetings, without imposing additional burdens on public bodies.  Moreover, making the content of these meetings easily available to the public would reduce the likelihood of repeated questions to the agency, the impact of misinformation, and the number of individual FOIL requests.

In the past, I have viewed live-streaming and archived video of oral arguments at the Court of Appeals.  Living and working more than three hours away from Albany, it would not have been practical for me to do that for the cases I was able to observe without the Internet capabilities of the Court.  The availability of live-streaming and video archiving now enables those of us in Western New York to more easily observe our government in action.  I am looking forward to the opportunity to observe the agencies in the executive branch from the comfort of my office in Rochester.  The amendment takes effect on January 10, 2016.

LOSAP Penalty for NY Public Employees Removed

Many fire districts have established Length of Service Award Programs (“LOSAPs”) in an effort to recruit and retain volunteer firefighters.  The service awards provided under these LOSAPs relate to credits earned annually by performing various volunteer firefighting functions for a period of years, and are generally paid on a monthly basis upon the participating volunteer reaching a certain age.

Previously, public employees who serve as volunteer firefighters were unfairly penalized, in that they were not permitted to earn any credit for responding to calls during the individual’s regularly assigned work periods.  Effective immediately, this penalty no longer applies.

The Memorandum of Support accompanying Chapter 535 of the Laws of 2015 notes the absurdity of the prior restriction:

Section 217(f) of the [General Municipal Law] precludes a volunteer firefighter who provides firefighter services (generally, emergency services) during his or her “regularly assigned work periods” from receiving LOSAP credit for those services. So, in spite of the increasingly desperate need to attract folks willing to undergo hundreds of hours of required training and stay active for many, many years to earn any marginally-significant LOSAP benefits, public employees are “dis-incented” from providing volunteer firefighter services for circumstances over which they have no control and which may already cause them significant employment-related penalties.

Thankfully, on December 11, 2015, the Governor signed legislation to repeal this penalty, effective immediately.

Shareholders of Foreign Corporations Liable for Wages?

Shareholder Liability Extended to Foreign CorporationsLast year, I wrote a post about amendments to the Wage Theft Prevention Act that added a provision to the New York Limited Liability Company Law, imposing personal liability on the members of a limited liability company with the ten largest ownership interests for the failure of the company to pay the wages of its employees. These amendments were similar to provisions already contained in Section 630 of the New York Business Corporation Law, which imposes personal liability on the ten largest shareholders of a corporation (other than a publicly-traded corporation) for the unpaid wages of employees of the corporation.

On November 20, 2015, the Governor signed an amendment to Section 630 [Chapter 421 of the Laws of 2015], which extends the reach of this provision to foreign corporations, when the unpaid services were performed within New York.

Although the law has been criticized because “it might turn business away from New York,” I do not necessarily see it this way.  That’s because shareholder liability is not automatic.  Before an employee can charge a shareholder for such unpaid wages, the employee must first provide a notice in writing to the shareholder, within 180 days after termination, advising the shareholder that he or she intends to hold the shareholder liable under this section.  The employee cannot commence an action against the shareholder until after the return of an execution unsatisfied against the corporation upon a judgment recovered against it for such services.  Once an execution is returned unsatisfied, the employee must then commence his or her action within ninety days.

Therefore, as long as the company has sufficient assets to cover the amount of any unpaid wages, the shareholders aren’t likely to be concerned about this possible liability.  Also, depending on the amount owed, it may not be cost effective for the employee to hire an attorney to prosecute these two lawsuits–even with the prospect of attorney’s fees and liquidated damages that are both recoverable under Article 6 of the Labor Law.  But, a word of caution.  Even though lawsuits under Section 630 are rare, I can think of at least one time in my nearly 20 years of practice that I was able to recover against shareholders for failure to pay wages of a former employee.

The sponsor’s memorandum of support for this legislation includes some interesting historical background discussing the reasons why the Legislature originally imposed shareholder liability for unpaid wages, as well as a discussion of how it came to be that foreign corporations were not covered by these provisions.  But, what should be highlighted here is the primary reason for this amendment, which was to eliminate discrimination against New York corporations in favor of foreign (out of state) corporations insofar as liability for unpaid wages is concerned:

It should be noted that this Legislature recently recognized the problem revealed during the recent economic collapse in which unscrupulous businesses opened and closed without paying wages due their employees.  The Legislature increased the penalty for failure to pay wages to 100% of the wages owed.  However, the penalty is meaningless if the employee lacks an effective remedy for recovering his or her unpaid wages.  The amendment strengthens existing remedies.

The amendment will be effective on January 19, 2016.


Seat Belt Use Required For Volunteer Firefighters

Volunteer Fire Fighters Now Must Buckle-Up!

Volunteer Firefighters Now Must Buckle-Up!

When New York’s Seat Belt Law was originally enacted in 1984, the Legislature exempted “authorized emergency vehicles” from the definition of “motor vehicles” whose operators and passengers had to be restrained by safety belts, because it was believed that the operators of these vehicles needed to be able to perform their duties in an “unhampered fashion.” However, that is about to change for volunteer firefighters.

On November 20, 2015, the Governor signed an amendment to the Seat Belt Law (Chapter 448 of the Laws of 2015), which now includes vehicles owned or operated by volunteer fire departments within the definition of “motor vehicles” whose operators and passengers must be restrained.  The amendment also applies to ambulances owned or operated by voluntary ambulance services as well.  However, the safety restraint requirements still do not apply: (a) to a passenger in the rear seat of a fire vehicle or ambulance if the seat is not required to be equipped with safety belts, nor (b) to emergency medical personnel during the course of providing patient care in the rear compartment of an ambulance in accordance with applicable patient care standards, guidelines and protocols established pursuant to the Public Health Law.

In support of this legislation, the sponsor’s memorandum noted:

The single largest cause of Volunteer Firefighter and EMS responder death is vehicle accidents to and from an incident scene. The largest contributor to those deaths is failure to wear seat belts.  Volunteers would like the current exemption removed from the law making New York law consistent with the training and operational procedures currently in place to promote seat belt use.

Use of seat belts promotes safety and saves lives. Since buckling a seat belt takes just a few seconds, fire and ambulance vehicles should be required to use them. This bill is strongly supported by the Fireman’s Association of the State of New York.

This amendment will not take effect until November 1, 2016.


Fire District Materials: 2015 Batavia Conference

fire service lawsOn Saturday, September 26, 2015, I was honored to be invited to participate as one of the panelists at the 2015 Western New York Fire District Officers Legislative Association Workshop.  I understand that the event was a “sell-out” with fire district officials from over 11 counties in attendance.  There were many topics covered, and I wanted to follow-up with a short post including some additional information and links to relevant information from some of the topics that were covered.

Fundraising.  During one of the breaks, I was asked about firefighters participating in fundraising activities in support of other (non-fire) organizations.  A word of caution about this.  Although the statute governing fundraising, General Municipal Law section 204-a, generally provides that firefighters participating in fundraising activities are covered by the Volunteer Firefighters’ Benefit Law (“VFBL”), not all kinds of fundraising activities are included in this coverage.  Section 204-a defines “fund raising activity” as “a method of raising funds to effectuate the lawful purposes of a fire company.”  Thus, if the funds are not being raised for “the lawful purposes of a fire company” it is not likely that there would be coverage under the VFBL if a firefighter is injured while participating in such activity.

One of the fundraising activities briefly discussed involved raffles.  The New York State Gaming Commission website has a section dedicated to Charitable Gaming–including Raffles.  You can find it here.  It is critical that both the requirements of the General Municipal Law and the applicable gaming rules are followed.

Firefighters Under 18.  There are opinions from the Attorney General’s Office indicating that firefighters may be as young as 16 years old.  But, before deciding whether or not to permit firefighters that young, the fire district should consult with counsel about the unique rules applicable to such firefighters, and also to review the risks associated with having firefighters that young on active duty.  Fire districts are also authorized by section 204-b of the General Municipal Law to establish youth programs, provided the program complies with the requirements of the statute.  Participants in such a youth program are not active firefighters.  Unlike active firefighters, youth participants are not eligible for VFBL coverage, and they may not participate in any emergency operation or any hazardous activity.

Blue Lights.  The SafeNY website contains a good FAQ page [here] with a good summary of the requirements applicable to the different types of sirens and flashing lights–including the blue lights used by volunteer firefighters.  The website also contains links to the relevant statutes, including Section 375(41)(4), which governs the use and operation of the blue lights.

Bonding Credit Card Users.  Recent audits by the New York Comptroller have included a recommendation that fire districts and other municipalities bond individuals who are issued credit cards.  Here is a copy of a recent audit with this recommendation.

Document Retention Policies.  I have been asked by my fire district clients how long it should retain certain documents.  Fortunately, the New York State Archives published a document retention and disposition schedule applicable to fire districts and other political subdivisions in New York.  The schedule–known as MU-1–may be found here.

Thank you for visiting my blog. I hope you consider subscribing by email, liking my page on Facebook, or following me on Twitter. You may also want to subscribe to our firm’s email newsletter, In Confidence, here. You can subscribe to only the topics you are interested in, and from time to time, I write about developments impacting New York municipalities, including fire districts.

Are Rochester Drivers Less Careful?

Always wear your seat-belt!

Always wear your seat-belt!

On my way in to work this morning, I passed a few heads of cabbage that remained along the shoulder of I-490 after an accident that happened a few days ago.  In case you haven’t heard, it was all over the news (and all over the road!):  thousands of heads of cabbage spilled all over both lanes of the expressway after the truck carrying them tipped over along a sharp curve.  You can read about it here and see some more pictures here.

Anyway, on the heels of that incident, it probably should come as no surprise that a new report from Allstate Insurance Co. shows that Rochester drivers are less careful than last year.  The Rochester Business Journal reported that:

The average driver in Rochester will experience a car crash every 7.7 years.  By comparison, Kansas City, Kansas–ranked first in the report–drivers will experience an accident every 13.3 years.  That is nearly 25 percent less likely than the national average of 10 years.

I guess it may be time for us all to take a defensive driving course again.  But, sometimes, no matter how defensively we’re driving, an accident may be unavoidable.  Tragically, serious accidents can sometimes be caused by judgment-proof drivers (with no assets), carrying either a minimal amount of insurance or no insurance at all.  That is why I always tell my friends, clients and family members how important it is to have adequate “SUM” coverage.  I’ve written about this before, and urge you to read these posts to find out more about this kind of coverage that you MUST have: Wrong-Way Crashes Highlight Need for Adequate SUM Coverage and Walkers, Runners, and Bicyclists: Tune Up Your Auto Insurance!

If you or a family member are ever seriously injured in an accident caused by another person’s carelessness, you can always contact us to talk about your rights and available options.  Information about our Personal Injury Practice may be found here.  Hopefully, you’ll never need us for that.

Safe travels!

Should Your Internationally Adopted Child Have A Certificate of Citizenship?

My wife and I have two children adopted from Korea, and we’ve both been very involved in the local Korean-American Adoption community.  From time to time, we’ve been asked questions by other parents that touch on this issue, and my wife keeps telling me that I need to write a post about this.  So, for this post, I’ll depart from my usual legal topics to write about something else that is very dear to my heart.  By the way, the answer to the question posed above is a resounding “yes!”

I know the Certificate of Citizenship is expensive and you may find that the Department of Health Certificate of Birth Record may work fine for now, but some day you or your child may encounter a bureaucrat who claims–rightly or wrongly depending on the date and manner in which your child was adopted–that your child is not a U.S. Citizen.  Get the Certificate of Citizenship now, while you still have all of the documents that are needed to complete this process.  Even though you can also obtain a passport–which will show citizenship–a passport expires.  A Certificate of Citizenship will not expire, and it can be used to obtain a Passport and other documents where proof of citizenship are required.

You may have heard stories about international adoptees who came to America as children, and later faced deportation–either because their adoptions were never finalized or they never officially became U.S. Citizens.  One such story widely reported involves Adam Crapser, a Korean-American who was later abandoned by his U.S. parents, and whose adoption was never finalized.  After a life struggling with joblessness because of his lack of immigration papers, homelessness and crime, Mr. Crapser–now a 39 and a married father of three–is facing deportation because he’s not a citizen.  You can read more about his story here.  Even though Mr. Crapser’s story may be the exception, rather than the rule, I am surprised to hear when parents tell me that they haven’t yet sought the Certificate of Citizenship.

Internationally adopted children whose adoptions were finalized after February 27, 2001, automatically become U.S. Citizens if the requirements of the Child Citizenship Act of 2000 are met.  The USCIS website has an excellent summary of the law (in plain English) here.  The U.S. State Department’s website also has some useful information about the law here.

Even though a Certificate of Citizenship is not required, I highly recommend you apply for one on behalf of your children.  You can find the application on the Department of Homeland Security’s website.  As I said above, both of my children were adopted from Korea.  Even though they both automatically became U.S. Citizens when their adoptions were finalized, I had a tremendously difficult time obtaining my first child’s Social Security Number because I made the mistake of failing to obtain a Certificate of Citizenship before applying for the Social Security Number.  Below is my story–an odyssey really–of the bureaucratic red tape I encountered because I did not have a Certificate of Citizenship.  It is reposted from a blog my wife and I wrote about adopting our first child.  [It has been edited to maintain privacy, but it is otherwise my post from February 12, 2010].

Red Tape and the Need for a Certificate of Citizenship

Pursuant to the provisions of the Child Citizenship Act of 2000, our son officially became a US citizen when his adoption was finalized in the US. In other words, he automatically became a citizen when the Surrogate signed the order of adoption. Now that he’s a US citizen, one would think it would be pretty easy to get a Social Security Number, right? Not so (for us anyways).

I knew we’d need to have our son’s SSN so we could claim the adoption tax credit in this year’s taxes. First, I should note that the forms on the SSA website are not exactly designed for someone in our situation. Since I had some questions about how to fill out the forms, given the fact that our son was an international adoptee, I tried to contact someone at the SSA who could answer a few questions for me.

One has no chance getting anyone on the phone at the local number. The line is always busy, and gets forwarded to the national SSA number. After navigating the phone tree, I finally reached a human being on the other line. Before I could proceed any further, however, the woman on the other end asked me for a social security number . . . . . What?  Let me explain why I’m calling. She actually asked again for my son’s social security number! When I was actually able to ask my questions, I was told that they were not allowed to answer specific questions (What???). She then suggested that I “hire a professional forms preparer, like an attorney.” (What the . . . .?).

Not having had any luck getting anyone to answer any of my questions, we decided to go in person (all three of us) to the Social Security Administration office downtown. We brought all of our original passports, my son’s green card, adoption certificate, certified adoption order, etc. After waiting for a while with a 2-year-old, our number was finally called. It was apparent that our son actually didn’t need to be there, but we had him there just in case. The service representative made certified copies of all of our original paperwork, and completed the SS-5 form on the computer. When we were done, he gave us a letter that said we could expect to receive our son’s card in about four weeks (but he told us that we should actually expect to receive it within 7 to 10 days). That would be perfect, because that would give us plenty of time to have the number in time to do our taxes . . . . or so I thought.

After a week, no card.

Ten days, no card.

Four weeks, and still no card.

Finally after five or six weeks (I can’t even remember now), I tried to contact SSA to find out why there was a delay. As happened previously, I couldn’t reach anyone locally, and nobody at the national office would help me. Out of desperation, I contacted Louise Slaughter’s office (our congressional representative). The person at this office, was actually quite helpful and tried to put me directly in touch with a manager at the local SSA office. Within 24 hours of contacting Louise Slaughter’s office, I heard from a manager. It turns out they lost our paperwork. The only paperwork in the file was the SS-5 printout. “When were they going to let us know there was a problem?” “Eventually somebody would have called us” was their response.

So, I took time out of my day to trudge back over to the SSA office and let them copy my original documents again! (This is also a reason why you should never, ever, let anyone with any federal or other agency keep any of your original documents–let them make certified copies!).

A few more weeks go by, and still no card. I tried calling the local SSA office using the manager’s number I got as a result of contacting Louise Slaughter’s office, and now even those calls were not being returned. Out of desperation, I again headed over to the local SSA office to try and get someone to help me. After spending over two hours there, and now on my third or fourth person (including two who rather insensitively and incorrectly told me that my son wasn’t a citizen yet), I finally got someone to help me.

She explained to me that the problem was actually with the Department of Homeland Security. Apparently DHS was not able to confirm that our son was actually the person who lawfully entered the country with the name on his green card. Duh! His name was legally changed when he was adopted. The certified copy of the adoption order has BOTH NAMES and explains that he will be going by the new name.

{Editorial Note: This was just after DHS let the underwear bomber board a plane using his name–which is a name on a terrorist watch list. Therefore, it is probably too much to ask, to have this same agency determine that a 2-year old who legally changed his name is the same person as the 10 month old who entered the country using the name on his green card}.

Anyway, the SSA representative explained how she would send a paper request to DHS and try and get the approval from DHS, so SSA could issue the card. She also gave me the super secret manager’s number that doesn’t go to voice mail if anyone wants it . . . . they have to pick it up!

At this point, I’m starting to really get pretty ticked (I also got a parking ticket because I was there as the SSA office was closing, so if I left to put more money in the meter, I wouldn’t be able to get back into the SSA office, and all the time I already wasted, would have REALLY been wasted). I next tried to contact DHS to try and figure out what the problem was.

Perhaps not surprisingly, DHS was equally as unhelpful. I decided that the only way to “fix” this problem was to get a certificate of citizenship even though our son should theoretically not ever need this document. In order to get this document, I needed to provide copies of all the same documents I provided to SSA (which SSA in turn sent to DHS already). And, of course, you need to fill out a form, and pay the government another $420 fee (on top of all the other fees I already paid for the other immigration documents).

In an effort to minimize any other problems, I made an appointment to do this at the Rochester satellite DHS office. I thought I would be able to sit down with a representative and explain my situation, and show them all of my documents. Wrong! When I got there there were two reps sitting behind thick glass windows with small circles to talk through (and you could barely hear them and they could barely hear you–especially if there is an elderly person who only speaks English as a second language talking very loudly to the rep next to you) and a little slot to pass papers back and forth (even though the side was wide open and I could very easily walk around the counter . . . .). And, the counter space was about 4 inches wide and I could barely spread my files out.

Once again, I was told that my son was not yet a citizen and that was probably why DHS could not confirm lawful status to SSA . . . . Idiots!

Anyway, I submitted my forms and continue to wait . . . . for both DHS and SSA. I’ll keep you posted as to what happens.

The moral of the story so far is that if you are the parent of a child adopted from another country, you must get the certificate of citizenship. Even if you don’t think you will need it, there are many, many misinformed bureaucrats out there, and you need to do everything you can to ensure that your child doesn’t have to face the red tape and hassles I’ve faced here (especially when they are older, and you might not be around to help them). I know another family that adopted a child from the same country through the same agency a year earlier. It was smooth sailing for them at the SSA, and they have yet to get a certificate of citizenship. I did everything the same, and we have had nothing but . . . . well nothing has happened and we’re still waiting for an SSA, nearly four months after applying.

I’ll provide an update when and if I have one . . . stay tuned.

After receiving the Certificate of Citizenship, I re-applied for a Social Security Number, and it came right away.  For our second child, I got the Certificate of Citizenship first, and then applied for the Social Security Number, and that process went much smoother.  Don’t let your child be hassled like I was.  Get the Certificate of Citizenship.

Partial Enforcement of Non-Compete Still a Risky Proposition

Earlier this week, I wrote an article on our firm’s website about some recent developments regarding partial enforcement of restrictive covenants:  New York Employers Could Soon Have More Difficulty Enforcing Restrictive Covenants.  The article was primarily based upon a Fourth Department case of Brown & Brown, Inc. v. Johnson, a case that was recently argued at the New York Court of Appeals.  Yesterday, the Court of Appeals decided the case.  You can read the decision here.

This weekend, I will write a more extensive update about the case on our firms’ website, but there are still a few interesting takeaways to note.

Although partial enforcement under New York law was one of the issues under review, the threshold issue addressed by the Court of Appeals was whether or not to apply a Florida choice-of-law provision.  The Appellate Division held that New York law should apply, and the Court of Appeals affirmed that part of the ruling.  After an extensive review, comparing the laws of the two states on this issue, the Court held:

Considering Florida’s nearly-exclusive focus on the employer’s interests, prohibition against narrowly construing restrictive covenants, and refusal to consider the harm to the employee–in contrast with New York’s requirements that courts strictly construe restrictive covenants and balance the interests of the employer, employee and general public–defendants met their “‘heavy burden’ of proving that application of Florida law [to the non-solicitation provision of the parties’ agreement] would be offensive to a fundamental public policy of this State.”

There have been a number of occasions where I have reviewed non-compete agreements containing choice-of-law provisions from Florida or other more “employer-friendly” states.  From now on, it seems very unlikely that such a provision would be enforced absent some significant distinguishing set of circumstances.  Employers wishing to enforce restrictive covenants in New York should narrowly tailor them to meet the requirements for enforceability under New York law.

On the issue of partial enforcement, the Court of Appeals reversed the decision of the Appellate Division.  But, the Court did so because it believed there were issues of fact that raised questions about whether the employer engaged in overreaching or used coercive dominant bargaining power to obtain the restrictive covenant at issue.  That issue was remanded back to the lower courts for further proceedings.  Partial enforcement is not assured, and employers should be concerned about the apparent trend by courts to decline to partially enforce over-broad restrictive covenants.

Capicola Confidential: Secrets of the Sandwich-Maker

BLTI’ve never eaten at Jimmy John’s, but they must have some incredible sandwiches, made with either top secret ingredients or through a confidential process (or both!).  It turns out that this sandwich chain requires its hourly workers to sign non-compete agreements, prohibiting its employees from working for a competitor for two years(!) after leaving Jimmy John’s.  I don’t know how I missed that, but it was apparently widely reported back in October, in Business Insider and the New York Times, among other publications.

According to the New York Times article, this isn’t really all that uncommon, as more and more employers are requiring low- and moderate-wage workers to sign these agreements. But, it seems to me very unlikely that these agreements would be enforceable in New York.  Plus, given the expense of enforcement, it is doubtful that any employer would truly think it worth the cost of litigating these agreements.  But, a low-wage under threat of litigation and unable to afford a lawyer to defend them in such an action may not know that, and feel trapped in their current job.

In New York, these agreements are more common among professionals, executives, and higher-paid salespersons with access to confidential business-related information.  And, even in those situations enforcement is not a sure thing.  Restrictive covenants in employment—also referred to as non-compete clauses—are generally not favored, and will be enforced by the courts only to the extent they are reasonable and necessary to protect legitimate business interests, such as the protection of an employer’s trade secrets or confidential customer lists, or protection from an employee whose services are unique or extraordinary. Courts have also held that employers have a legitimate interest in preventing former employees from exploiting the goodwill of a client or customer, which had been created and maintained at the employer’s expense, to the employer’s competitive detriment.  What legitimate interest would a sandwich chain have to justify preventing one of its sandwich-makers from leaving and working for a competitor?

This may all be moot if Congress passes the Mobility and Opportunity for Vulnerable Employees (MOVE) Act (not to be confused with the Military and Overseas Voter Empowerment Act).  According to the press release issued by one of the sponsors, the legislation:

will enable low-wage workers to seek higher-paying jobs without fearing legal action from their current employer.  The MOVE Act will ban the use of non-compete agreements for employees making less than $15 an hour, $31,200 per year, or the minimum wage in the employee’s municipality, and will require employers to notify prospective employees that they may be asked to sign a non-compete agreement.

According to the press release, it is estimated that 8-15% of low-wage workers are asked to sign non-compete agreements in an effort to dissuade those workers from seeking better, higher-paying jobs within the same industry. Although such agreements in these contexts may ultimately prove to be unenforceable in many jurisdictions, passage of the MOVE Act would remove any doubt with respect to these employees.

For more information about restrictive covenants and some recent developments in New York law, I invite you to read the latest posting on our firm’s website: New York Employers Could Soon Have More Difficulty Enforcing Restrictive Covenants.

Urban-Suburban Interdistrict Transfer Program Upheld by Second Circuit in 2000



The Urban-Suburban Interdistrict Transfer Program has been in the news quite a bit lately, as several suburban Monroe County school districts consider whether to join the Program, which permits minority students from the Rochester City School District to transfer to suburban school districts.  This evening the Spencerport Central School District voted to become the eighth suburban district to join the program.  According to the Democrat and Chronicle, at least three more suburban districts are considering whether to join as well.

One of the most rewarding cases I worked on early in my career was Brewer v. West Irondequoit Central School District, 212 F.3d 738 (2d Cir. 2000), a case upholding the Urban-Suburban Interdistrict Transfer Program.  This evening, I dusted off my copy of our brief, and flipped through the pages of the Joint Appendix.  Here are some interesting facts from the case as they existed at the time of the appeal:

  • The Program began in 1965, with the voluntary transfer of 25 minority students from a predominantly minority Rochester City School District school to the predominately white West Irondequoit Central School District.
  • Program participating involved a voluntary commitment by each suburban district, and the decision-making process was typically accompanied by vigorous political debate, and the public airing of racial attitudes and prejudices.
  • The Program survived an early legal challenge in Etter v. Littwitz, 47 Misc. 2d 473 (Sup. Court Monroe County 1965), aff’d, 28 A.D.2d 825 (4th Dep’t 1966), as well as funding cuts and recurring political opposition to its state funding.
  • Over time, the Program expanded to include more transferring students and additional participating suburban school districts.  At the time of the appeal, six suburban districts participated in the Program:  Brockport, Penfield, Brighton, Pittsford, Wheatland-Chili, and West Irondequoit.  Subsequently, Fairport joined the Program, and as noted above, Spencerport has decided to join.
  • The Program operates and is funded pursuant to State legislative and State Education Department authorization.  This was true at the time of our appeal, and I believe it to be true today.
  • Program literature and historical news accounts in the record report that the Program was the first such voluntary inter-district desegregation effort in the United States.
  • At the time of our appeal, the Program was the only one of its kind in New York State.
  • The Program was not established, nor was it administered to permit a select group of students to attend a “better school” based on their superior academic achievement or intelligence.  Rather, the goal and purpose of the Program as specified by the State Education Department was “to promote a reduction in racial isolation in the elementary and secondary schools of the State.”
  • Although the “outbound” component of the Program generates the most press, at the time of our appeal there was also an “inbound” component to the Program, whereby non-minority students may transfer from participating suburban districts to attend school in Rochester.  According to information in the record, approximately 29 suburban students transferred inbound to attend a Rochester City School District school for the 1996-97 school year, and 50 students did so for the 1998-99 school year.
  • During the then-30 years of its existence, the Program received high praise and commendations from numerous people, including a sitting U.S. President, federal and state legislators, members of the New York Board of Regents and State Education Department officials, local school superintendents and administrators, teachers, parents, and students.
  • In celebration of the Program’s 20th Anniversary, President Ronald Reagan congratulated the Program, noting:

For two decades your voluntary program has provided an opportunity for thousands of students to learn and grow in a multi-cultural environment.  It has broadened their horizons and promoted high student achievement and academic excellence.

-President Ronald Reagan, February 24, 1986 (Joint Appendix on Appeal at A-152).

In upholding the Program, the Second Circuit held “that a compelling interest can be found in a program that has as its object the reduction of racial isolation and what appears to be de facto segregation.”  Brewer, 212 F.3d at 752.

As these young children from Rochester begin their education in Spencerport (and any other district joining the Program), I hope that they will be welcomed by their new peers–including many whose parents may have been opposed to joining the Program.  Although society continues to struggle with whether or not voluntary desegregation programs like this are constitutionally permissible, many people believe that all of these children–whether from the suburbs or the city–will benefit from interactions with other children from different backgrounds.

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