Page 9 - The Suffolk Lawyer - December 2020 - Vol. 35, No. 8
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THE SUFFOLK LAWYER - December 2020                                                      9



        An Invitation to Join Our Leadership


          Each year, our membership elects a pres-  each class shall be the immediate past presi-  to and in accordance with the Association’s  tion. Eligibility of Board members as noted
        ident, president elect, two vice presidents, a  dent of the Association.   Bylaws and all applicable laws; elevating the  in the  Association’s Bylaws: “No member
        treasurer, a secretary and four directors. The   Except for the office of the president, the  standard of integrity, honor and courtesy in  shall be eligible for election to the Board of
        officers’ positions are for one year and the di-  Nominating Committee is now seeking ap-  the legal profession and cherishing the spirit  Directors who has not been an Active Mem-
        rectors’ terms are three years.       plications for the aforementioned positions.  of goodwill among the members. The mem-  ber of the Association for at least five years
          The next election,  pursuant to our By-  If you are interested in becoming a leader and  bership is deeply appreciative of the energy,  and a member of a committee, task force,
        laws, will be at our Annual Meeting, Mon-  are willing to assume a role in the activities  dedication and hard work performed by the  recognized foundation of the association,
        day, May 3, 2021.  The membership also  of the SCBA, please send your résumé, either  officers and directors of the Association es-  an Officer of the Suffolk Academy of Law,
        elected at the Annual Meeting, three mem-  by mail or email to the jane@scba.org.  pecially in these challenging times.    or any combination thereof, for at least four
        bers to serve on the Nominating Committee   As officers and directors of the SCBA you   The directors are required to attend all  years during such period.”
        for a term of three years. Each member of  manage the affairs of the Association, subject  scheduled Board meetings of the  Associa-        ~LaCova





                                                                HEALTH AND HOSPITAL

        The ACA Argued Before the High Court


        By James G. Fouassier                 the rest of the act.” If Congress ex-        the plane flying. But now the part  able to function without the removal restric-
                                              pected the High Court to do this             has been taken out, and the plane  tions, “and there is nothing in the text or his-
          On November 10, SCOTUS entertained  “that’s not our job,” he said. Lat-          has not crashed. So, if we were to  tory of the [law] that demonstrates Congress
        argument in California v. US, a/k/a Texas v  er Roberts commented that “Here,      decide this case the way you advo-  would have preferred no CFPB to a CFPB
        US, the constitutional challenges to the Af-  Congress left the rest of the law in-  cate, how would we explain why  supervised by the President.” Justice Roberts
        fordable Care Act or Obamacare, as it is col-  tact when it lowered the penalty to   the individual mandate in its pres-  specifically observed that the law itself con-
        loquially known.                      zero. That seems to be compelling            ent form is essential to the opera-  tained a provision that specifically provides
          Based on the tenor of the comments of  evidence on the question [of sever-       tion of the act?”             that if any part of the law is stricken as un-
        the justices in response to oral argument it  ability].”  Justice  Kavanaugh was   jameS g. fouaSSier  If recent precedent will be a  constitutional the remainder would survive.
        appears at first blush that a majority of the  even more explicit, stating that “[i]  guide, the court may rely on Sei-  The severability doctrine, he explained, is
        court wants to find some way to sustain the  t does seem fairly clear that the proper reme-  la Law v. Consumer Financial Protection  “a scalpel rather than a bulldozer.” If SCO-
        ACA. Chief Justice Roberts and Justice Ka-  dy would be to sever the mandate provision  Board, decided only this past July 20. The  TUS follows this recent authority a majority
        vanaugh in particular appeared to be criti-  and leave the rest of the act in place, the pro-  court ruled that certain challenged restric-  of the justices may be inclined to uphold the
        cal of the plaintiffs’ arguments, especially in  visions regarding preexisting conditions and  tions imposed by the enabling act law on the  remainder of the Act even if they sustain the
        pushing back on the defendants’ position that  the rest.”                  removal of the CFPB director were unconsti-  lower court’s finding that the individual man-
        the ACA cannot constitutionally be severed.   When Jeffrey Wall, Acting U.S. Solicitor  tutional but rejected a request that the act cre-  date is unconstitutional.
        In response to Texas Solicitor General Kyle  General representing the Administration, ar-  ating the CFPB be stricken in its entirety. In   It was not, however, all smooth sailing
        Hawkins Justice Roberts said, “I think it’s  gued against severability Justice  Alito ap-  that case the Chief Justice explained that the  for the defendants. “Eight years ago, those
        hard for you to argue that Congress intended  peared to pile on with: “At the time of the  removal restrictions could be separated from  defending the mandate emphasized that it
        the entire act to fail if the mandate were struck  first  case,  there  was  a  strong  reason  to  be-  the rest of the law that gives the CFPB its au-  was the key to the whole act,” Roberts said.
        down when the same Congress that lowered  lieve that the individual mandate was like a  thority. The remaining provisions, addressing  “But now the representation is that, ‘Oh no,
        the penalty to zero did not even try to repeal  part in an airplane that was essential to keep  the powers and structure of the CFPB, are   (Continued on page 21)


                                                             LABOR AND EMPLOYMENT


        The WARN Act: What Business Owners and Employers Need to Know


        By Vincent Costa                      nessee) to establish more stringent          New York, the government agen-  in the near future when determining wheth-
                                              WARN laws at the state level.                cies required to be notified were  er notice is required. Also, certain workers,
          The  New York  State Worker Adjustment   The  New  York  WARN Act                the  New  York State  Department  such as part-time employees working fewer
        and Retraining (WARN) Act requires cov-  applies to private businesses             of Labor and the relevant  local  than 20 hours per week or employees that
        ered businesses to provide early warnings of  (for-profit  or  not-for-profit)  with   Workforce Investment Board. But  have worked less than six months in the past
        closures and layoffs to workers, employee  50  or  more  full-time  employees      in an amendment signed by Gov-  year, are not counted when calculating the
        representatives, the Department of Labor and  within New York state. WARN re-      ernor  Andrew Cuomo  that  went  number of employees for WARN.
        others. Unfortunately, as the pandemic con-  quires businesses to give advance     into effect on Nov. 11, 2020 (As-
        tinues to wreak havoc on the economy, some  written notice to  all  its employ-  vincent coSta  sembly Bill 10674-A), employers      (Continued on page 22)
        businesses will be forced to close. Note that  ees as well as certain government   must now also provide  advance
        the WARN Act’s requirement to provide 90  agencies prior to particular layoffs,    notice to:                     MEDIA ATTORNEY NEEDED
        days advance notice has not been waived, be-  downsizing, or reductions in force.  It covers:  The chief elected official of the unit of lo-
        cause the WARN Act already recognizes that   A “mass layoff” occurs when, over a 30-  cal government in which the mass layoff, re-  Stony Brook University’s School
        businesses cannot always predict sudden cir-  day period, a reduction-in-force results in an  location, or employment loss will occur.  of Journalism is looking for a me-
        cumstances. Learn more below about what  “employment loss” of more than six months   The chief elected official of the school dis-  dia  attorney  to  provide  pro-bono
        businesses are covered, the steps you must  for: (a) at least 25 full-time employees who  trict in which the mass layoff, relocation, or   work to journalism students and
        take, and the information to file.    represent at least 33 percent of all of employ-  employment loss will occur; and  student-run news publications. Re-
        The details                           ees at the work site; or (b) at least 250 full-  Each locality that provides emergency ser-  sponsibilities  include  but  not  lim-
          The  WARN  Act is administered by the   time employees.                  vices to the site of employment where the
        U.S. Department of Labor Employment and   A “plant closing” is defined as an “employ-  employment loss will occur.  ited  to  vetting  articles  pre-publi-
        Training Administration on the federal lev-  ment loss” of 25 or more full-time employees   The New  York  WARN requirements are   cation,  providing  advice  on  legal
        el and by the New York State Department of   during a 30-day period due to a permanent or  complex. To complicate matters further, em-  issues that may arise and speaking
        Labor on the state level.             temporary shutdown of the worksite.  ployment losses are aggregated over a roll-
          On the federal level, a WARN notice is re-  Under WARN, a “relocation” occurs when  ing 90-day period.  So, employers not only   from  time-to-time  to  journalism
        quired when a business with more than 100   “all or substantially all” operations are relo-  have to look at whether employment loss-  professors and staff. Send all que-
        full-time workers is laying off at least 50 peo-  cated to a location at least 50 miles from the  es taking place at a particular point in time   ries to George Giokas at  george.
        ple at a “single site of employment.”  New   current location and where 25 or more full-  meet the thresholds above, but they must also   giokas@stonybrook.edu.
        York is one of a handful of states (New Jer-  time employees suffer an “employment loss.”  be mindful of employment losses in the re-
        sey, California, Illinois, Wisconsin, and Ten-  Previously, under the  WARN  Act in  cent past and anticipated employment losses
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