How current events impact your business and real estate holdings

Thursday, January 21, 2021

Fair Housing Act Prohibits Discrimination on the Basis of Gender Identity & Sexual Orientation per President Biden

On Day 1 of President Biden's Term, he expanded our understanding of the Fair Housing Act by making clear that it includes protections against discrimination on the basis of gender identity & sexual orientation. 

See his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation for your full understanding.

As explained by the President, the US Supreme Court ruled in 2020 that employment discrimination laws, which expressly prohibit sex discrimination, also prohibit discrimination on the basis of gender identity and sexual orientation; and that the same reasoning behind the Supreme Court's ruling will now be applied to the Fair Housing Act's prohibition of discrimination in the sale and rental of housing across our nation. 

In fact, the Executive Order put all perpetrators on notice by stating that the government will issue plans, within 100 days, to effectuate its policy of enforcing these prohibitions against discrimination on the basis of gender identity or sexual orientation.

While many states, such as NY, and other locales, already prohibit gender identity and sexual orientation discrimination in housing, the Federal Government stepping in to enforce violations can change the game.

How will you change your business because of this Order?  

Tuesday, January 19, 2021

Employment Sexual Harassment - Case of Interest at the NYPD

A homosexual detective was just given his chance to prove that he experienced workplace discrimination at a trial and recoup damages.

Here are his facts:

  • His homophobic colleagues vindictively called other officers wherever he was stationed & told them to harass plaintiff because he was gay;
  • 2 Sergeants constantly made homophobic slurs at civilians & gay officers in his presence; 
  • He endured over a year of homophobic derision, harassment, and verbal abuse;
  • He was singled out to do tasks, which his peers were not required to do, such as:
    • He was repeatedly required to enter a holding cell, by himself, with prisoners still inside, while plaintiff carried metal and wooden cleaning implements. This was potentially dangerous, as plaintiff could have been overwhelmed & attacked by the prisoners. Other officers were not required to do it, as it was usually a task for the maintenance crew; 
    • He was required to go on foot patrol alone during the midnight shift in dangerous areas at the 77th Precinct while other officers patrolled with partners;
  • He was given extra work when he arrived on the job; and
  • He experienced some new or escalated conduct after he started to fight the discrimination, which could be deemed retaliatory.
Do you think he should win?
How much would this be worth to you in damages if it were you who experienced these actions?

Remember, he can sue for emotional distress damages, back pay, forward pay, punitive damages, and attorneys' fees.

This case was just decided by the Appellate Courts in Doe v New York City Police Dept.

Wednesday, January 13, 2021

Dollar General to Pay Workers to Get COVID Vaccine, But Can They Without Getting Sued for Discrimination?

According to Business Insider, Dollar General is paying their employees to get the COVID vaccine, but is that legal? 

Back in 2017, the federal courts, in AARP v. EEOC, addressed the issue of paying employees for participation in wellness programs and found that both the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act were violated because the incentives permitted rendered the programs not voluntary, as required by law. The incentive, at issue in the case, was "up to 30% of the cost of self-only coverage." 

How does that comport with what Dollar General is now doing? 

They are offering four hours of pay to their employees. 

Is that too much to make participation voluntary? 

Ironically, the Equal Employment Opportunity Commission is proposing a new regulation about this voluntary standard in the Federal Register for public comment. This new regulation proposes to change the 30% incentive limit (as addressed in the federal case above) to a de minimis incentive limit. In fact, the regulation gives examples of a permitted de minimis incentive, like a water bottle or modest gift card.

Isn't four hours of pay worth a lot more than a water bottle? Is Dollar General going to get sued for this program. What do you think? 

Friday, January 08, 2021

Systemic Employment Discrimination Enforcement Brought to you by the EEOC - Be Warned

The Equal Employment Opportunity Commission (EEOC) just launched a new website detailing how it pursues systemic discrimination cases against businesses throughout the US.

It's like a shot across the bow of your boat if you own or manage a business - they are coming for you if you don't start implementing Diversity, Equity, and Inclusion (DEI) initiatives now. 

When implementing your DEI initiatives focus on these 4 main categories, which EEOC targets for systemic employment discrimination enforcement:
    1. Hiring / Promotion / Assignment / Referral
    2. Policies / Practices
    3. Lay-off / Reduction in Force / Discharge Policies 
    4. ADA (disability) / GINA (genetic info) 

The EEOC defines systemic as "pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.” 

Basically, it means that they are looking for more than just one plaintiff (think, class action, just a little different). 

The new EEOC website lists the top 10 systemic enforcements topics, which you should review immediately to avoid a charge from the EEOC:
    1. Use of background checks
    2. Denying women jobs in fields such as truck drivers, dockworkers, laborers
    3. Refusal to hire African American, Hispanics and older workers for front of the house positions
    4. Ending staffing agency use of referring applicants based on customer preferences
    5. Widespread sexual harassment of teenagers in fast food chains
    6. Racially hostile displays such as nooses and racist graffiti
    7. Eliminating tap on the shoulder recruiting in favor of job posting
    8. Challenging policies of issuing attendance points for medical related absences, without accounting for disabilities
    9. Challenges of deportation made against employees complaining of discrimination
    10. Challenges to abuse of vulnerable workers who were subject to years of confinement, abuse, deplorable conditions, and reduced pay following charges of discrimination

If you aren't concerned yet, be warned that in "2020, OGC resolved 33 systemic cases, recovering $69.9 million for approximately 25,000 individuals."

Do you have your policies, practices, and procedures in place to prevent EEOC from charging your company? 

Thursday, January 07, 2021

Second PPP $ - The Rules are out NOW

How do you get your Paycheck Protection Program Second Draw Loan? 

The rules are out now and here are the top 10 rules that you should know:

  1. Last day to apply & receive a new PPP is March 31, 2021;
  2. To qualify, you must use or will use full amount of your First Draw PPP loan on or before disbursement of second loan; 
  3. SBA may forgive up to the full principal loan amount; 
  4. Interest rate is 1%; 
  5. Maturity is 5 years; 
  6. Borrower must have 300 or fewer employees;
  7. Borrower must have experienced a revenue reduction of 25% or greater in 2020 relative to 2019 (quarterly comparison); 
  8. When comparing 2020 relative to 2019, any forgiveness amount of a First Draw PPP Loan that a borrower received in calendar year 2020 is excluded from a borrower's gross receipts (not disqualified from the second loan because of the first one);
  9. Each hotel, restaurant, or news organization with a location owned by a parent business in a separate legal business entity and employing not more than 300 employees is permitted to apply for a separate PPP loan; and
  10. Maximum loan amount = 2.5 months of the borrower's average monthly payroll costs.

PODCAST | How Businesses Can Get The PPP Round 2 Loan

On this Podcast, we discuss the highlights of the second Paycheck Protection Program with financial planner, Louis Soriano. Answering questions about whether:
  • You can get a second loan
  • What the qualifications are to apply
  • What size businesses can apply
  • How this works with taxes
  • If the first loan needs to be forgiven to get the second loan


Wednesday, January 06, 2021

Are Your Staff Employees or Independent Contractors? A New Regulation Answers The Question

During the last two weeks of his Presidency, Trump's Department of Labor just revised the test for whether an individual is an independent contractor or employee under the Fair Labor Standards Act. 

This is significant because employees are entitled to minimum wage and overtime whereas independent contractors are not. 

If an employer misclassifies a staff member as an independent contractor when such staff member should be classified an employee, it can result in a devastating blow to the employer who will be exposed to statutory penalties, back pay, attorneys' fees and more. 

Now, Trump's government is using the "economic reality" test to determine employee status. 

According to the government, "the ultimate inquiry is whether, as a matter of economic reality, the worker is dependent on a particular individual, business, or organization for work (and is thus and employee) or is in business for him- or herself (and is thus an an independent contractor)." 

Under this test, the Department of Labor or a Court hearing the case will look to five distinct factors to answer the test. However, two of those factors now have more probative value in answering the question than the rest. These two key factors are:

  1. The nature and degree of the worker's control over the work; and
  2. The worker's opportunity for profit or loss. 

The other factors, of less importance, are:
  1. The amount of skill required for the work;
  2. The degree of permanence of the working relationship between the individual and the potential employer; and 
  3. Whether the work is a part of an integrated unit of production.
Regardless, employers better take note of this change and analyze their staff's true work to ascertain if they are classified properly. If this is too much, you better hire a consultant to do the job NOW.

Here's a question

While the government argued in support of this new test by pointing to the need for clarity for business, is this the time to tax companies with new rules in the middle of a pandemic where small businesses are closing every day? 

More so, with a change in the Presidency less than two weeks away, will Biden just change this back next month? 

This new regulation isn't effective until March 8, 2021, so Biden could theoretically undo it before it even takes off. 

Should he? 

Tuesday, January 05, 2021

Commenting Turned On - Please Share Your Thoughts on the Lieb Blog

We are updating our platforms for 2021 and are now encouraging unrestricted commenting. 

Say what you want and share as you feel comfortable. This platform is for you - the business community. 

We promise to do our best to answer your questions and participate in the discussion.

Please know that there is no attorney / client relationship established by participating in this blog and it is a public, non-confidential, forum. So, watch what you say because the world will know. No spam, discrimination, or harassment will be tolerated and all are welcome.

Together, we are going to reemerge as a stronger business community in 2021. 

Here is to a great year!

Monday, January 04, 2021

Pass Rate for NYS Real Estate Salesperson Test Announced

Does it shock you to learn that from January through October 2020, of the 13,527 examinees, only 59% passed the Real Estate Salesperson exam?

Brokers did a little better - of the 1,098, 66% passed.

Isn't that low? 

How do we get brokers to pass at a higher rate?

Would it help if the state released past exams? That makes sense, doesn't it? How can you study otherwise?

Thursday, December 31, 2020

New Eviction Law Extends Residential Eviction Moratorium to May 1, 2021

On December 28, 2020, Governor Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“Act”). Essentially, the Act provides tenants with an opportunity to submit a Hardship Declaration, which stays most evictions until May 1, 2021. The second part of the Act which provides for mortgage foreclosure relief is discussed in a separate blog HERE.

The Details:

  • Essentially, once a tenant provides a Hardship Declaration, the eviction is stayed until May 1, 2020.
  • The Act applies to residential nonpayment AND holdover eviction proceedings.
  • The Act does not apply to tenants of seasonal rentals with a primary residence to return to and tenants who infringe on other tenants' use and enjoyment of the premises or pose a substantial safety hazard to others, but only upon the landlord proving same.
  • To qualify, a tenant must provide the Hardship Declaration and must declare that they are suffering a financial hardship, such as:
      • Significant loss of income
      • Increase in necessary out-of-pocket expenses due to COVID-19
      • Childcare responsibilities or care for the elderly, disabled, or sick family member
      • Moving expenses and difficult relocating
      • Other circumstances negatively affecting the ability to find meaningful employment
      • Vacating the premises and moving into new permanent housing poses a significant health risk
  • Sample hardship declarations will be available on the Office of Court Administration website.
  • New Eviction Proceedings - upon a Tenant's submission to the landlord of the Hardship Declaration, the landlord is prohibited from commencing any eviction proceeding until May 1, 2021. The landlord can commence an eviction proceeding if the landlord files the following:

    • Affidavit of service of the Hardship Declaration in English and tenant’s primary language.
    • Affidavit of Service of predicate notices pursuant to RPAPL and the lease; and 
    • Affidavit of the Petitioner/Petitioner’s agent attesting to the following:
      • Petitioner or his agent did not receive a Hardship Declaration from the Tenant 
      • The tenant returned the Hardship Declaration but the tenant is “persistently and unreasonably engaging in behavior that substantially infringes on the use & enjoyment of other tenants or occupants or causes a substantial safety hazard to others, with a specific description of the behavior alleged.” 
      • If the Court determines that the landlord failed to provide the Hardship Declaration, the court shall stay the eviction for at least 10 days for the tenant to complete the declaration. 
  • Pending Eviction Proceedings - proceedings commenced before 12/28/20 and commenced within 30 days of 12/28/20 are stayed for at least 60 days, or to such later date set by the Court. If the tenant submits the Hardship Declaration, the eviction proceedings are stayed until May 1, 2021. 
  • Post Warrant of Eviction - in any eviction proceeding in which an eviction warrant has already been issued, execution is stayed until the court holds a status conference with the parties. If the tenant provides a Hardship Declaration, the execution of the warrant is stayed until May 1, 2021.

What is most important to both tenants and landlords is that while the law stops most evictions in NYS until May 1, 2021, it does not affect the tenants' obligation to pay rent. No payments are canceled. 

Unfortunately, despite the law's intentions, it is still lacking. Inevitably, tenants will continue to incur insurmountable debt and small landlords will eventually find themselves in the middle of the looming foreclosure tsunami. 

What do you think?