LIEB BLOG

Legal Analysts

Monday, July 22, 2024

Real Estate Lending Valuations Guidance

On July 18, 2024, the Consumer Financial Protection Bureau and 4 other government agencies issued guidance to financial institutions about Reconsiderations Of Value (ROVs) in the real estate lending process to avoid litigation for deficient valuations. 


ROVs are valuation reports, which includes reconsideration of appraisals, evaluations, and other means to determine the value of residential property. Specifically, ROVs are a response to a request for a follow-up valuation, after an initial valuation exists to gauge the value of real estate or loan collateral offered by a party seeking a loan. 


The guidance suggests policies and procedures for lenders to address information unconsidered in an initial valuation or identify flaws in an original valuation because accurate valuations of collateral are key to the lending process and avoiding litigation.  


A valuation may be deficient due to unlawful discrimination under both the Equal Credit Opportunity Act (ECOA) and the Fair Housing Act (FHA). In fact, the guidance suggests that complaints of discrimination should be addressed by routing those complaints "to the appropriate compliance, legal, and appraisal review staff," in addition to processing the ROV. Such unlawful valuations can prevent the acquisition of loans lenders, blocking potential buyers from purchasing or refinancing homes. 


To read the entire guidance, click here




Tuesday, July 16, 2024

Guidance on AI Discrimination & Emerging Data in Insurance by NYS DFS

Welcome to the age of AI Discrimination Regs. Do you have an auditing program in place? 


On July 11th, 2024, the New York State Department of Financial Services (DFS) released Circular Letter No. 2024-7 about the expectations for insurers in NYS regarding the use of Emerging Consumer Data & Information Sources (ECDIS) & Artificial Intelligence Systems (AIS) in underwriting and pricing insurance policies.


The goal of these guidelines is to ensure that all insurers adopt & manage ECDIS, AIS, & other predictive models responsibly because these models come with potential systemic biases & reliability issues that could lead to unfair discrimination or adverse effects on vulnerable communities.


Keys:

  • Insurers must ensure that ECDIS & AIS complies with all relevant federal / state laws & regulations.
  • Use of these models should not result in unfair discrimination, which means that data sources or models do not rely on protected classes & do not produce unfairly discriminatory outcomes.
  • Use of ECDIS & AIS must be supported with generally accepted actuarial standards, demonstrating a clear, statistically significant relationship between variables used & risk.
  • Insurers must regularly test & document their methodologies to ensure compliance with anti-discrimination laws & to maintain transparency.
  • Effective governance frameworks should be established, with senior management & board oversight to manage the risks associated with these technologies.


DFS notes that transparency is crucial with ECDIS and AIS. Insurers must disclose to consumers whether these technologies are used in underwriting or pricing decisions & provide the specific data that influenced these decisions. 


When it comes to third-party vendors, insurers are responsible for understanding & ensuring compliance of any third-party tools, ECDIS, or AIS used. This includes having contracts that allow for audits & cooperation with regulatory inquiries.


If you'd like to read DFS's Circular Letter No. 2024-7 click here




Thursday, July 11, 2024

Foreclosure Help on the Way from CFPB

The Consumer Financial Protection Bureau (CFPB) proposed new rules on July 10, 2024 that would obligate large mortgage servicers to help homeowners/borrowers avoid foreclosure, expand access to borrowers seeking mortgage payment assistance, and strengthen communication between borrowers and servicers.


These rules would mandate servicers to do everything they can to provide payment assistance to borrowers before they can seek foreclosure while also speeding up servicers’ evaluations of borrowers’ eligibility for assistance by greenlighting such reviews once borrowers provide some documentation rather than requiring the submission of a complete application.


Further, the amendments would mandate prompt status updates on borrowers’ applications and require servicers to broadly construe what qualifies as a request for assistance.


The new provisions would also obligate servicers to communicate with borrowers in their preferred language in certain circumstances as well as to include guidance about how to obtain information about payment assistance in notices sent after missed payments.




Tuesday, July 02, 2024

New Law - Adult Survivors Act & Sex Offenses

On June 28, 2024, New York State Governor Kathy Hochul signed into law A6138, which clarifies that individuals bringing untimely or inadequately filed lawsuits for sexual offenses revived by the Adult Survivors Act (ASA) under three other laws are not required to file a notice of claim or notice of intention to file a claim beforehand when such suits are brought against the Government. 

While the ASA provided that sexual offenses claims can be revived even if the statute of limitations period passed or a notice of claim went unfiled, the ASA did not directly amend the specific laws such revived suits are brought under to eliminate these procedural hurdles. 

The Bill clarifies that individuals bringing procedurally flawed claims revived by the ASA under the Court of Claims Act, General Municipal Law, and Education Law, specifically, are not required to file a notice of claim or intention to file a notice of claim prior.

This clarification went into effect immediately and applies to lawsuits either pending on or brought after June 28, 2024.







Tuesday, June 18, 2024

Age Discrimination Law Explained: Protecting Older Workers with Attorney Andrew Lieb on Scripps News

In this interview with Scripps News, Attorney Andrew Lieb discusses the protections for older workers from discrimination under Federal and New York State laws. 

Key points include:

  • Individuals aged 40-69 are fully protected and cannot be forced out of their positions due to age.
  • Executives over 65 can be required to retire if they meet certain payment standards.
  • In New York, everyone 18 and older has these protections and more.
  • Companies can mandate physical or mental tests for employees if they are relevant to the job's essential functions and uniformly applied.


Monday, June 10, 2024

Clarifying Anti-Discrimination Protections in New York State

On June 6, 2024, the New York State Senate passed Bill S4467, to clarify the state’s anti-discrimination law, the New York State Human Rights Law (“NYSHRL”). 


Under the law, a plaintiff only needs to prove that unlawful motivation was a motivating factor and not "the sole motivating factor" or a "but-for cause" of the challenged treatment. 


This clarification allows mixed-motive claims to succeed by showing that discrimination was one motive driving a negative work-related decision. 


This Bill addresses an issue with age discrimination where it was unclear if New York mirrored the standard from federal law, the Age Discrimination in Employment Act, which requires sole motivating factor. Clearly, the legislature knows that all victims of discrimination in New York need to be treated the same with the same standards. 


This clarification will go into effect immediately once passed by the New York State Assembly and signed by the Governor. 


If you’d like to read more, click here




Monday, May 06, 2024

Addressing Ethnic and Age-Based Harassment: Understanding Your Legal Options

Discrimination in the workplace can take many forms, affecting employees' well-being and career progression. If you're facing or have observed discrimination based on a combination of ethnicity and age, it's important to recognize that such behavior not only undermines professional environments but also violates federal and state laws.


Example of Discrimination:

Consider Angela's experience—a Hispanic woman in her fifties working as a technician in a manufacturing plant. Despite her dedication and hard work, Angela was subjected to continuous ethnic and age-based harassment from her colleagues. This harassment created a toxic atmosphere, making it difficult for her to perform her duties effectively. Angela attempted to address the issue by reporting the harassment to her shift supervisor, who unfortunately failed to take the necessary steps to escalate the complaint to human resources. This neglect allowed the harassment to persist, severely affecting Angela’s work life and mental health.


Guidance from the EEOC:

The Equal Employment Opportunity Commission (EEOC) emphasizes that employers have a legal obligation to address harassment once they are aware of it, regardless of whether the complaint comes directly from the victim or a third party. The EEOC guidelines help to clarify that any indication of harassment should prompt an employer to investigate and take appropriate action. This includes situations where the harassment is not explicitly labeled as such but is evident through the conduct described, such as unwanted physical contact or derogatory comments.


Advice from Andrew Lieb, Managing Attorney at Lieb at Law, P.C.:

"Employers must take immediate and effective action to investigate any allegations of harassment. Simply having a policy is not enough; the policy must be enforced to protect employees and maintain a respectful workplace. Victims should not hesitate to seek legal redress when their concerns are dismissed or inadequately addressed by their employer because they have a right to be protected."


Taking Legal Action:

If you relate to Angela’s situation or witness similar discriminatory practices, it's crucial to know that you have legal options available. Reporting the issue within your organization is a critical first step. If the response is insufficient, contacting a legal professional can help you navigate the complexities of filing a formal complaint and pursuing further legal action.

For personalized legal guidance and to explore the full scope of your rights and options, reach out to Lieb at Law, P.C. Our dedicated team is committed to advocating for those affected by workplace discrimination and ensuring that they receive the justice and support they deserve.


*Attorney Advertising

Thursday, May 02, 2024

Antisemitism Definition for Title VI Education Discrimination Passes House

Title VI prohibits discrimination on the basis of race, color, and national origin. Notably absent from that list is religion. So, are jews protected from antisemitism in elementary, secondary, and post-secondary (colleges & universities) schools?

In 2021, former President Trump signed Executive Order 13899 on Combating Anti-semitism, which explains that "[i]n enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments and agencies (agencies) charged with enforcing Title VI shall consider the following: (i) the non-legally binding working definition of anti Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, 'Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews.  Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.'” 

An explanation of the impact of that Executive Order on education was then set forth in a Q&A by the Department of Education, here

Now, the US House of Representatives have passed a codified version of this EO and further defined antisemitism in the face of rising discrimination faced by jewish students in colleges and universities throughout the country. We await the Senate and then the President to see if this Bill, HR 6090, will become the law of the land. 

If this bill is passed, it expressly provides that the definition of antisemitism under Title VI "means the definition of antisemitism adopted on May 26, 2016, by the IHRA, of which the United States is a member, which definition has been adopted by the Department of State." In fact, the bill states that antisemitism can constitute a hostile educational environment, under Title VI, as follows: "individuals who face discrimination based on actual or perceived shared ancestry or ethnic characteristics do not lose protection under such title for also being members of a group that share a common religion."

While HR 6090 should become the law, the real question is why Congress didn't just expand Title VI to include religion as a protected class to be free from discrimination? Fortunately, states like New York have done just that in Executive Law 296(4). So, if you are a victim of religious discrimination in education in New York, you have rights.



Monday, April 29, 2024

EEOC Releases Guidance in Workplace - Employer Liability for Harassment

The Equal Employment Opportunity Commission (EEOC) has released official Enforcement Guidance on Harassment in the Workplace, which is effective immediately. 

The Guidance, EEOC-CVG-2024-1, is designed to "serve[] as a resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues."

This resource includes an explanation of the definition of each covered protected characteristic, including race, color, national origin, religion, sex, age, disability, genetic information, and retaliation. More so, for each protected characteristics are numerous examples of what type of harassment is actionable. 

In evaluating the examples, the Guidance provides:

These are key questions that typically arise in evaluating a hostile work environment claim and whether it amounts to unlawful harassment:

  • Was the conduct both objectively and subjectively hostile?
    • Objective hostility: was the conduct sufficiently severe or pervasive to create a hostile work environment from the perspective of a reasonable person?
    • Subjective hostility: did the complainant actually find the conduct hostile?
  • What conduct is part of the hostile work environment claim?
    • Can conduct that occurred outside the workplace be considered?
    • Can conduct that was not specifically directed at the complainant be considered?

As a reminder, the Guidance provides, at Example 39, that a hostile environment needn't cause a resulting decline in work ability or psychological injury to be actionable. Specifically, it states: "Based on these facts, Irina was subjected to a hostile work environment. Although the harassing conduct did not result in a decline in her work performance or in psychological injury, the nature of the conduct and Irina’s reactions to it were sufficient to establish that the ongoing sexual conduct created a hostile work environment because the conduct made it more difficult for a reasonable person in Irina’s situation to do her job."

That said, the Guidance goes into declining work ability and injuries across the board. It discusses employer liability for acts of alter-egos, supervisors, and co-workers. It explains systemic harassment and how a pattern or practice of harassment needs to be addressed by an employer. 

Overall, this is the go to resource of Title VII discrimination and best practices in the workplace moving forward. 






New Overtime Time and a Half Final Rule under the Fair Labor Standards Act

Ready for a big jump in being entitled to overtime pay, which is 1.5 times pay?


The Department of Labor has set new effective earnings thresholds to be entitled to overtime pay per 29 CFR 541.  


Starting on January 1, 2025, we are moving the Fair Labor Standards Act (FLSA) from an entitlement to overtime pay for those making under $35,586 to those making under $58,656 per year ($1,128 per week). Note that this threshold does not apply to employees who are "bona fide executive, administrative, or professional capacity . . . or in the capacity of [an] outside salesman," which terms are defined at 29 CFR 541.


These numbers are particularly important because a worker who is not paid properly can recover 2X back wages (liquidated damages) on unpaid overtime from the prior 2 years.