LIEB BLOG

How current events impact your business and real estate holdings

Monday, December 28, 2020

Employment Sexual Harassment - Case of Interest - Exceeding Petty Slights or Trivial Inconveniences

Back on October 11, 2019, the NYS Human Rights Law was modified with a new standard for actionable employment sex discrimination. The new standard was intended to align NYS more closely with the NYC Human Rights Law. 


The new standard is that conduct that exceeds "petty slights or trivial inconveniences" is actionable. 


As to what that means, the NYC law was interpreted by the Second Circuit Court of Appeals (Federal Court) in Mihalik v. Credit Agricole Cheuvreux North America, Inc., which is the leading case. 


Now, we have a leading case interpreting the NYS law as well by a State Court. 


On December 15, 2020, the NYS Appellate Division decided Franco v Hyatt Corp. and found the following allegations to constitute conduct that exceeds petty slights or trivial inconveniences:

  1. Supervisor made repeated sexual advances towards him, including reaching out to touch his face and holding his hand in an elevator while they were alone.
  2. Supervisor also initiated conversations that made him uncomfortable, telling him she had a "crush" on him, telling him she was single and twice inviting him to her home to repair "a hole" in her apartment. 
  3. Supervisor said she had a tattoo, adding that "You have to undress me to see it." 
  4. After victim rebuffed advances, supervisor brought him to the Human Resources manager's office to complain about his work product and that she solicited complaints about him from other coworkers.
Interestingly, this case involved a female harasser of a male subordinate. 

When we train the NYS / NYC Mandatory Sexual Harassment Prevention Course to companies around the country, at sexualharassmenttrainingny.com, we always get push back to the concept that sexual harassment can be female on male. This case is a good reminder that everyone is protected from harassment at work. 





 

PODCAST: Religious Freedom to Discriminate

Wednesday, December 23, 2020

NYS Proposes Regulations that Require Appraisers to Learn Fair Housing / Anti-Discrimination

On 12/23/2020, the NYS Department of State proposed mandating fair housing education as a condition of license renewal for appraisers and assistant appraisers.  


The proposed regulations would be at 19 NYCRR 1107.2(b), 19 NYCRR 1107.33(a), (b), and (c), and 19 NYCRR 1107.34. 


In substance, the regulations would require that every licensed or certified appraiser complete an approved course of study in Fair Housing and Fair Lending every two years with the following course topics: 

a) 7 Hour Introduction to Fair Housing and Fair Lending Instruction

b) 4 Hour Update on Fair Housing and Fair Lending Instruction


Now, we are in the public comment period until 02/21/2021. To make your comments, email the regulator at david.mossberg@dos.ny.gov


While we are very encouraged by increased fair housing and anti-discrimination trainings being required in NYS, we are concerned with how specific the subtopics of education are and how they offer no explanation as to what exactly the government is looking for within each subtopic. We are also concerned about how this requirement will impact federal government contractor appraisers who must follow Executive Order 13950 on Combating Race and Sex Stereotyping and are therefore restricted on engaging in trainings on unconscious bias or implicit bias to the extent that "it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously," per the US Department of Labor. We hope that these issues will be addressed before this regulation is finalized. 


To the specific subtopic requirements, under topic a), the subtopics are as follows:

(1) Fair housing, fair lending requirements, and the history of lending 2 hours

(a) What is fair housing?

(b) What is fair lending?

(c) Roadblocks to fair housing/lending

(d) Federal laws Civil Rights Act of 1866

Civil Rights Act of 1964 Fair Housing Act of 1968

Supreme Court

The Housing and Community Development Act of 1974

The Fair Housing Amendment Act of 1988

Other legislation

- Community Reinvestment Act

- Equal Credit Opportunity Act

- Home Mortgage Disclosure Act

- Real Estate Settlement Procedures Act American Disabilities Act

(ADA)

(e) New York State Law - Executive Law includes the Civil Rights

Law of the State (NY Human Rights Law - Article 15)

- Additional protected classes; age and marital status

- Includes residential property, land commercial property and credit

transactions

(f) Local Regulations

(g) Exemptions and Exceptions

- Senior Citizen Housing

- Drug users and alcohol abusers

- Two family exemption

(h) USPAP/FIRREA

(i) Enforcement and Duties

-U.S. Department of Justice

-Department of Housing and Urban Development (HUD)

-New York State Department of State, Division of Licensing

-New York State Division of Human Rights

-Administrative Law Judges

-Federal and State Courts

-Responsibilities of individual appraisers

(j) Penalties New York State Federal Government

(2) Development of appraisal (Standard 1 USPAP) 1.5 hours

(a) Bias and discrimination in the analysis in development

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(3) Reporting of appraisal results (Standard 2 USAP) 1.5 hour

(a) Bias and discrimination in the report

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(4) Case studies 2 hours

(a) Neighborhood issues

(b) Improvement issues

(c) External obsolescence

(d) Conscious and Unconscious bias


Under topic b), the subtopics are as follows:

(1) Fair housing, fair lending requirements, and the history of lending 1 hour

(a) What is fair housing?

(b) What is fair lending?

(c) Roadblocks to fair housing/lending

(d) Federal laws Civil Rights Act of 1866

Civil Rights Act of 1964 Fair Housing Act of 1968

Supreme Court

The Housing and Community Development Act of 1974

The Fair Housing Amendment Act of 1988

Other legislation

- Community Reinvestment Act

- Equal Credit Opportunity Act

- Home Mortgage Disclosure Act

- Real Estate Settlement Procedures Act American Disabilities Act

(ADA)

(e) New York State Law - Executive Law includes the Civil Rights

Law of the State (NY Human Rights Law - Article 15)

- Additional protected classes; age and marital status

- Includes residential property, land commercial property and credit

transactions

(f) Local Regulations

(g) Exemptions and Exceptions

Senior Citizen Housing

Drug users and alcohol abusers

Two family exemption

(h) USPAP/FIRREA

(i) Enforcement and Duties

-U.S. Department of Justice

-Department of Housing and Urban Development (HUD)

-New York State Department of State, Division of Licensing

-New York State Division of Human Rights

-Administrative Law Judges

-Federal and State Courts

-Responsibilities of individual appraisers

(j) Penalties New York State Federal Government

(2) Development of appraisal (Standard 1 USPAP) 1 hour

(a) Bias and discrimination in the analysis

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(3) Reporting of appraisal results (Standard 2 USAP) 1 hour

(a) Bias and discrimination in the report

(b) Documentation of sources

(c) Secondary market guidelines Fannie Mae, Freddie Mac, HUD,

VA

(4) Case studies 1 hour

(a) Neighborhood issues

(b) Improvement issues

(c) External obsolescence

(d) Conscious and Unconscious bias


 




Thursday, December 17, 2020

New Laws for Building Owners on Alterations Impeding Emergency Egress and Disposal of Construction and Demolition Waste

On December 15, 2020, Governor Cuomo signed Senate Bill 1714 into law which effectively amends Section 382 of the Executive Law. Effective immediately, the new law imposes a civil penalty of up to $7,500 on building owners who make alterations to their buildings which violate the uniform fire prevention and building code and which block access to an egress during a fire or other emergency. The penalty is imposed on building owners who have or should have had knowledge of such impediment.

Building owners must ensure compliance with the uniform fire prevention and building code or risk exposure to not only the civil penalty imposed by the new law, but also to liability for any other damages and injuries which could have been avoided if the building was up to code.

Moreover, building owners should also be aware of the new law which criminalizes the improper disposal of construction and demolition waste. Effective December 15, 2020, any person who knowingly, recklessly, or intentionally disposes of construction and demolition waste and/or hazardous substances may be convicted of a crime with fines of up to $300,000 for a class C felony, be ordered to restore the property where the wastes were released to its original state and pay for costs for the disposal and restoration of the property, twice the amount of any gain from the crime, and be subjected to any other sentence authorized by law, including imprisonment.


Wednesday, December 16, 2020

New York is Really Tired of Banks and Title Companies Not Accepting Powers of Attorney

Governor Cuomo has signed into a law Assembly Bill A5630A which aims to simplify the statutory short form power of attorney and increase its acceptance by third parties (looking at you title insurers and banks). 

Previously, a power of attorney could be void because it did not contain the "the exact wording of the form set forth in Section 5-1513". This strict language caused many third parties relying on the form to refuse to honor powers of attorney not prepared using their own templates out of fear that the form they were unfamiliar with had a small technical error rendering it invalid. 

Now, a power of attorney is valid so long as it "substantially conforms to the form required pursuant to Section 5-1513" even if it contains insignificant mistakes in "wording, spelling, punctuation, or formatting, or the use of bold or italic type... or uses language that is essentially the same as, but not identical to, the statutory form." Even more, "failing to include clauses that are not relevant to a given power of attorney shall not in itself cause such power of attorney to be found to not substantially conform with the requirements of such form." Long story short, the statute now gives much more leeway in the preparation of the form, hopefully avoiding the voiding of powers which in all fairness should have been valid for the purpose intended. 

To promote acceptance of more powers of attorney, the new bill bakes in protections for third parties relying upon powers, as well as penalties for third parties that unreasonably reject powers. 

Section 5-1504 of the General Obligations Law is amended to contain a presumption that a duly acknowledged (notarized) power of attorney is genuine and valid. It also is amended to provide for a mechanism to release a third party relying upon a power of attorney from liability after reasonable acceptance. The third party may "request, and rely upon, without further investigation" (1) an agent's certification under penalty of perjury any factual matters relating to the power and (2) an opinion of counsel (from the principal is fine) as to any matter of law concerning the power. There are strict time limits (10 business days) in which the third party must reject a power of attorney together with a written explanation given to the principal and agent, and then either reject or honor the power after receipt of written explanation received from the agent/principal (7 business days). Most importantly, if the agent receives an acknowledged affidavit from the agent stating that the power is in full force and effect, the third party must accept the power of attorney except for reasonable cause, which is enumerated in the statute. If the third party and agent/principal follow all the steps in this dance, the "third party shall be held harmless from liability for the transaction." 

But what if your bank or title insurer still won't accept your power of attorney? A special proceeding may be commenced against the third party refusing to honor the power, awarding damages (including reasonable attorney's fees and costs) if the third party acted unreasonably in refusing to honor the power of attorney. 

Time will tell if these changes, coupled with the elimination of the statutory gift rider, will result in more widespread use and acceptance of powers of attorney. Banks and title insurers are notorious for avoiding risk when it comes to the use of powers of attorney and the State's attempts to promote their acceptance has bordered on Sisyphean. 




Monday, December 14, 2020

Commercial Eviction and Foreclosure Moratoriums Extended through January 31, 2021

Through Executive Order 202.81, Governor Cuomo extended the moratoriums for the initiation of a proceeding or enforcement of an eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage to January 31, 2021. This means that no eviction or foreclosure proceeding may be commenced against commercial tenants for nonpayment of rent or mortgage until such date.

In addition, New York City’s Guaranty Law, which prohibits commercial landlords from enforcing personal guaranties against natural persons for payments during the COVID-19 period, was extended and now covers payments due from March 7, 2020 through March 31, 2021. The law was recently challenged in the United States District Court in the Southern District of New York for violating the Constitution, but the law was ultimately upheld. The Court reasoned that while the law does substantially impair contracts, the law is constitutional as it advances a legitimate public interest, and the law is reasonable and necessary in advancing such interest.

While commercial landlords may still seek relief by commencing a holdover eviction, landlords may be better off commencing an action in Supreme Court where they can seek damages for breach of contract, removal of the tenant through an ejectment action, and the enforcement of personal guaranties (for non-NYC landlords), if any. Landlords are advised to consult counsel to ensure compliance with the terms of the lease and all landlord-tenant laws currently in place to avoid any delays and additional damages.

There are currently no moratoriums in place for residential evictions. Residential landlords may commence both holdover and nonpayment proceedings. However, for nonpayment proceedings, courts may not grant a judgment of possession and warrant of eviction against tenants in a nonpayment proceeding who raise the affirmative defense of a COVID-19 financial hardship and proves same. Further, tenants who submit a CDC declaration form stating their inability to pay rent, among others, to their landlords are also protected from nonpayment eviction proceedings until December 31, 2020.



Friday, December 11, 2020

NYS Human Rights Event on Discrimination & COVID-19

On Tuesday December 15, 2020 at 12:30PM, the NYS Division of Human Rights is hosting a virtual event about discrimination and COVID-19. 


The event will discuss "unjust targeting and attacks against Asian Americans, systemic health care disparities in Black and Brown communities, and the challenges, particularly in workplaces, for people with disabilities." 


As discrimination litigators and trainers we will be attending, will you? 





Thursday, December 10, 2020

Service Animals, Not Emotional Support Animals, on Airplanes - The Law is Changing on January 11, 2021

The US Department of Transportation just added a new wrinkle into your post-pandemic travel plans if you have an emotional support animal. According to new regulations, effective January 11, 2021, carriers can consider emotional support animals to be pets and therefore, make no special accommodations for you even if you are emotionally disabled and need such emotional support animal to function. This is a particularly troublesome decision by the US Government for veterans suffering from PTSD and autistic individuals who both often need emotional support animals to function. 


The new regulations also have enhanced rules for disabled passengers with service animals. A service animal is now defined as a "dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." As a result, if you have a service monkey or peacock, too bad - these animals don't count anymore. Previously, they did as per the Department of Transportation's website and pursuant to a 2008 regulation (14 CFR 382.117).  


Even if your service animal is a dog, there are other rules that you still need to know. The Department of Transportation is created a form that can be required for travelers requesting an accommodation. This form requires that you certify that your animal is trained, has good behavior, and good health. Additionally, the form can be required up to 48 hours before flights or at the departure gate for animals that will be transported in the cabin. Finally, the regulations allow carriers to require service animals to be harnessed, leashed, or otherwise tethered while onboard. 


It is imperative that airlines train their teams about these new regulations and travelers are immediately noticed about their lessoned rights and heightened obligations.





Tuesday, December 08, 2020

Housing Discrimination Plaintiffs Now Have Two Bites at the Apple

Complying with Employment Laws Applicable to Remote Employees

The Covid-19 pandemic has compelled many employers to employ remote workers for the first time. Managing remote employees can be challenging and employers may be exposed to substantial liability if they do not have an understanding of how federal, state and local employment laws apply to remote employees. 

Mordy Yankovich, Esq. shares three areas of potential exposure for employers and how to best mitigate such exposure in the legal publication, "Complying with Employment Laws Applicable to Remote Employees". 

This article was published in the Suffolk Lawyer.