Did you know that Title VII employment discrimination cases can happen even if the perpetrator is merely the 6-year-old grandson of the owner?

That's the lesson from Chapman v. Oakland Living Center, which is a case against an assisted living facility where the owner’s 6-year-old grandson repeatedly used the n-word against a black employee.

The problem for the employer was - why didn't anyone stop him? The boy’s grandfather either knew or should have known about the conduct and failed to sufficiently respond. Yes, there was a spanking and an unsuccessful attempted to elicit an apology, but that wasn't enough.

On December 21, 2021, Gov. Hochul signed Bill A04651 into law, which requires third-party delivery services to have a valid agreement with merchants before advertising, promoting, or selling any of the merchant's products on their platforms. 

So going forward, third-party delivery services such as Uber Eats, DoorDash, and GrubHub must have valid agreements with local restaurants before promoting or selling any of the restaurants' food/products. There is no question, especially during the ongoing COVID-19 pandemic, local restaurants have utilized third-party delivery service platforms to further promote their businesses, to generate new customers, and to increase overall exposure to local communities. At the same time, the use of third-party food delivery services has exploded and these third-party food delivery services have gotten away with charging local restaurants excessive fees and commissions on the delivery of a restaurant's food/products, which have diminished a restaurant's overall profit. 

This new legislation also forbids any indemnity clauses in these agreements. It is common for many third-party food delivery services to attempt to limit their own liability for any issues related to the food itself or for any accidents that occur during the delivery process. This is why third-party service agreements often contain an indemnity clause, which is a "risk-shifting" provision, in which a restaurant agrees to defend, reimburse, and hold harmless a third-party food delivery service for any and all claims arising out of the third-party food delivery services' scope of work.  

This new legislation ensures that restaurants in New York State will know precisely what fees/commissions a third-party food delivery service will charge on deliveries and also protects restaurants against claims arising from the delivery of their food/products. 

Violations of this new legislation can result in a civil penalty of up to $1,000 per violation. Additionally, a restaurant has the right to file a lawsuit for damages, which includes the civil penalty of $1,000 per violation, injunctive relief, and may even be awarded reasonable court costs and attorney's fees at the court's discretion. 

Will we see fewer restaurants advertised on third-party delivery services apps going forward in light of this new legislation? 

Will we see a snowball effect of increased lawsuits against third-party delivery services? 

Time will tell...

As you may recall, a proposed bill (S1579A) was submitted to Gov. Hochul earlier this month seeking to amend the RPAPL and require lenders, assignees, or mortgage loan servicers to maintain and upkeep vacant residential property at the beginning of a foreclosure action, rather than towards the end of it. 

On December 21, 2021, Gov. Hochul signed the bill into law and it became effective immediately. 

Lenders are likely not thrilled about this new legislation considering they now face the burdensome task of maintaining and upkeeping vacated residential homes throughout the entire foreclosure process, which as we all know, could last months or even years. 

Lenders could also face the risk of being accused of trespass for gaining access to what is a supposed to be a vacant residential home that is being foreclosed upon. It is certainly not uncommon for homeowners to continue residing at a foreclosed home especially at the commencement of a foreclosure action.  

What kind of ripple effect will this new legislation have on residential foreclosure actions going forward?

Stay tuned over the coming months to find out....

A bill (S1579A) awaiting Gov. Hochul's signature will amend section 1307 of New York Real Property Actions and Proceedings Law ("RPAPL") & require plaintiffs, lenders, assignees, or mortgage loan servicers in a residential mortgage foreclosure action to maintain vacated foreclosed property at the commencement of a foreclosure action. 

Currently, section 1307 of the RPAPL imposes a similar duty on plaintiffs to maintain vacated foreclosed property after obtaining a judgment of foreclosure and sale through the time ownership of the vacated foreclosed property has been transferred to another party. 

It is not uncommon for residents who fall behind on their mortgage to leave or abandon their homes. As a result, lenders will commence a foreclosure action, but may delay in taking control of the vacated or abandoned property, resulting in unmaintained and deteriorating property. 

As we all know, the foreclosure process in New York State can be quite lengthy and, in many instances, it can take years for a plaintiff or lender to obtain a judgment of foreclosure and sale. 

Requiring plaintiffs or lenders to maintain abandoned or vacated foreclosed property at the start of a foreclosure proceeding ensures that the foreclosed property will not deteriorate due to lack of maintenance and upkeep and will ensure that the future owner of the foreclosed property will have a home that is in adequate, or even pristine condition, at the time of closing. 

On the other hand, plaintiffs and lenders will likely argue that this amendment places an undue burden on them since they now have to maintain a vacated property at the start of a foreclosure action, rather than towards the tail end of it. 

This could cause lenders to either: 

1. Move quickly in a foreclosure action rather than take their time, or 
2. Delay or limit foreclosure actions altogether in order to avoid the burden of maintaining a vacant or abandoned residential home at the start of a foreclosure proceeding. 

Regardless, aren't there going to be disputes as to whether a property was abandoned and whether the lender was trespassing? Would you want a lender going into your home, even if they were maintaining it, as obligated? 

Lenders would be wise to seek court orders confirming that property is abandoned and they can enter prior to acting under this bill, if it becomes law. Otherwise, they should expect to be counterclaimed for trespassing as they don't have any legal right to the property until the foreclosure proceeding is concluded. 

Stay tuned to see if Gov. Hochul signs this bill into legislation...

As you may recall, on May 5, 2021, the NY HERO Act was signed into law in order to protect employees against exposure and disease during a future airborne infectious disease outbreak. The HERO Act requires employers to take certain measures to protect their employees in the event of future airborne infectious disease outbreaks, which includes requiring employers to have an exposure prevention plan in place in the event of a future outbreak.

As previously reported on this Blog, regulation 12 NYCRR 840.1 entitled "Airborne Infections Disease Exposure Prevention Standard" was proposed over the summer to assist employers in adopting an exposure prevention plan. 

Although 12 NYCRR 840.1 has not yet been approved, the New York State Dept. of Labor has enacted an emergency regulation so that 12 NYCRR 840.1 can be immediately adopted. 

Regardless of whether or not 12 NYCRR 840.1 is ultimately approved, employers should still have an exposure prevention plan in place. However, to err on the side of caution and to avoid a whirlwind of possible future lawsuits, employers should comply with the requirements set forth 2 NYCRR 840.1, especially in light of the Dept. of Labor's recent actions in proposing an emergency regulation to adopt 12 NYCRR 840.1.

Clearly, the Dept. of Labor is gravely concerned about the possibility of future airborne infectious disease outbreaks and their patience is running thin.

If you agree or disagree with the Dept. of Labor's emergency regulation, you can make your voice heard by emailing Michael Paglialonga, Dept. of Labor, at regulations@labor.ny.gov, by December 31, 2021. 

As you may recall, a proposed bill (A2382) was submitted to Gov. Hochul last month, seeking to amend the CPLR & Judiciary Law concerning predatory debt collection practices & consumer actions, as discussed in our blog here.

On November 8, 2021, Gov. Hochul signed bill A2382 into law. 

"When bad actors try and take advantage of consumers, New York will fight back. I'm proud to be signing legislation that will protect New Yorkers from unscrupulous practices by debt collectors and utility companies."  -Gov. Hochul. 

This is huge news considering the new legislation will undoubtedly protect debtors from abusive debt collection practices. 

How big of an impact will this new legislation have on overall debt collection practices in New York? 

Stay tuned....

A proposed bill (A2382), awaiting Gov. Hochul's signature, seeks to amend the civil practice rules in NY (CPLR) & Judiciary Law concerning predatory debt collection practices & consumer credit actions. 

Specifically, the Bill provides the following: 

• Cut the statute of limitations on consumer credit transactions in half (i.e., from 6 years to 3 years);
• Require all consumer credit action pleadings to include additional information (i.e., name of original creditor, last 4 digits of account number on most statement, date & amount of last payment, etc.);
• Allow defendants to raise improper service as a defense (i.e., unwaivable); 
• Require an additional notice of a pending consumer credit action be mailed to a defendant by clerk of the court; &
• Require additional steps for entry of default judgment against a debtor (i.e., affidavit by original creditor of facts related to debt/default in payment, affidavit of sale for every subsequent assignment of sale of debt to a third-party, affidavit of a witness of the plaintiff, including chain of title of debt, etc.). 

As you may recall, all federal contractors now have vaccination requirements because of Executive Order 14042, as discussed in our blog here.

The Order requires that all contracts between federal contractor and subcontractor contain a clause ensuring compliance. However, the specifics of that clause were unknown until September 24, 2021, when the Safer Federal Workforce Task Force (SFWTF) published guidance, which requires:

• Vaccinations of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accomodation; 
• Compliance by individuals, including covered contractor employees and visitors, with the  guidance related to masking and physical distancing while in covered contractor workplaces; and 
• Designation by covered contractors of a person(s) to coordinate COVID-19 workplace safety efforts. 

A proposed rule at 12 NYCRR 141 will increase basic hourly minimum wage for non-farm workers outside of New York City, Nassau, Suffolk and Westchester counties, from $12.50 to $13.20. 

This proposed rule is in compliance with the minimum wage requirements at Labor Law 652(6). 

Although 70 cents may not be considered impactful by many, those struggling to afford monthly expenses, especially during the ongoing COVID-19 pandemic, will certainly benefit from such an increase. 

To voice your support or opposition to this proposed rule, comments should be sent to Michael Paglialonga, NYS Dept.of Labor at regulations@labor.ny.gov by November 29, 2021. 

 According to the Second Circuit:

This Court entered a temporary injunction in the above-captioned case on Friday, September 24, 2021 for administrative purposes pending decision by a three-judge panel. IT IS HEREBY ORDERED that the September 24 injunction is DISSOLVED. IT IS FURTHER ORDERED that the motion for an injunction pending appeal is DENIED.

That said, not getting vaccinated does not equal automatic termination. 

As the City explained in their opposition to the injunction, "even employees who object to vaccination... can elect to stay home and retain their positions while being placed on unpaid leave with healthcare until early September 2022... And even if plaintiffs decline the extended leave option, the earliest any steps would be taken to terminate their employment would occur in December 2021." 

So, "employees who fail to submit proof of having received one dose of vaccination by September 27, 2021, are to be placed on unpaid leave with health insurance the following day. [internal citation] But an employee who submits proof of vaccination before November 30, 2021, will be able to return to work within a week. [internal citation] And an employee who submits proof of vaccination thereafter, but before September 5, 2022, will be able to return to work within two weeks." 

As to accommodations, the City is granting accommodations "for a religious or medical" needs. However, an underlying arbitration on the matter set "an alternative to any statutory reasonable accommodation process... for the 2021-2022 school year" where the deadline for "any requests to be considered as part of this process... [was] no later than Monday, September 20, 2021, by 5:00 p.m." Therefore, any school employee who has not yet applied for an accommodation, CANNOT get one. 

The City's opposition summed this entire situation up nicely where it stated, "Put bluntly, plaintiffs do not have a substantive due process right to teach children without being vaccinated against a dangerous infectious disease."

On September 25, 2021, Gov. Hochul released a comprehensive plan to address possible shortages within hospital and health care facilities in preparation for today's vaccination deadline. 

The plan includes the following: 

• Signing an executive order (if necessary) to declare a state of emergency that would increase workforce supply in the hospital and health care facilities and allow qualified health care professionals in other states or countries, recent graduates, and retired health care professionals to practice in New York;
• Exploration of ways to expedite visa requests for medical professionals; 
• Possible deployment of medically-trained National Guard members; &
• Partnering with the Federal Govt. to deploy Disaster Medical Assistance Teams ("DMATs") to assist local health and medical systems. 

The Tax Cuts and Jobs Act ("TCJA") caused the gift, estate, and gift-skipping transfer ("GST") tax exemptions to be $11.7 million per person in 2021. However, it is scheduled to decrease to $5 million, adjusted for inflation on January 1, 2026. Have you been planning for that cliff? 

Even scarier for estate tax planning is the Build Back Better Act, which is a projected $3.5 trillion COVID-19 plan proposed by President Biden to create jobs, cut taxes, and lower costs for working families, which includes lowering taxes, prescription drug, childcare, health care, and education costs. This law proposes to accelerate the estate tax exemption decrease by four (4) years, to January 1, 2022. 

Yet, the Build Back Better Act is not yet enacted into law. It is currently being marked up by the House Ways and Means Committee. 

Have you spoken to your congressperson about your feelings about speeding up the estate tax exemption cliff? 

Do you think it should be included in the Build Back Better Act? 

Stay tuned for updates concerning the Build Back Better Act in the upcoming weeks to follow... 

If you want to avoid a workplace vaccine mandate, be very careful what you post on social media about politics and vaccines.

According to the U.S. Equal Employment Opportunity Commission's Questions and Answers: Religious Discrimination in the Workplace, "[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII." This is cited in the EEOC Compliance Manual § 12–I(A)(1).

Instead, per the EEOC, a religious belief concerns “ultimate ideas” about “life, purpose, and death."

To qualify for a vaccine exemption, you need a religious or medical reason, not a political one. 

In fact, employers are already combing the internet to confirm whether your claimed religious belief is insincere and merely a manifestation of your politics. Taking this a step further, if you sue your employer for failing-to-accommodate your religious beliefs, be warned that your social media posts are fair game and are a gold mine for a good trial lawyer who will tear you apart on the stand. 

As background, the underpinnings of the EEOC's position stems from the United States Supreme Court, which first set the test for a sincerely held religious belief in U.S. v. Seeger, when conscientious-objectors sought accommodations from service in the armed forces (a/k/a, draft exemptions). Per the Supreme Court, the test is "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." This test was adopted to the employment discrimination context by the Third Circuit Court of Appeals in Protos v. Volkswagen of America, Inc. 

Back to you. An employer can and should challenge whether you sincerely hold your espoused religious belief before granting you an accommodation from its rules and policies, like a vaccine mandate. 

As an illustration of what you are looking at in such a challenge, see the case of Sidelinger v. Harbor Creek School Distr., where an employee sought a religious exemption from his employer's "requirement of wearing an identification badge" because of his claims that wearing a badge evoked the "sins of pride and hypocrisy contrary to his religious belief... [as] an old-fashioned, very conservative Roman Catholic." In the case, the District Court made clear that while it would not question the truth of the belief, it would certainly question whether the employee truly held that belief. Further, the Court emphasized that it is an employee's burden "to show that he holds a sincere religious belief in conflict with his employer's requirements." Finally, the Court explained that an employee's sincerity and credibility are the basis for a factbinder's assessment, which includes internet posts. By the way, the Court found that the employee did NOT qualify for a religious accommodation. 

Are your claimed religious objections to the COVID vaccine sincere or BS political crap? 

Landlords and brokers should pay close attention to Long Island Housing Servs. Inc. v. NPS Holiday Square LLC in the Eastern District of New York. 

This case addressed whether minimum income requirements for rentals are discriminatory. 

What do you think?

Should a landlord be able to screen tenants based on their income?

The landlords in this case utilize "a two-to-one income requirement, which generally requires applicants without housing vouchers to have an income double the monthly rent." If they have vouchers, the vouchers are credited "as one month's rent and [the] applicants [] have [to have] an income equal to between 80 percent and 100 percent of one month's rent." 

To be discriminatory, this policy would have to have "'a significantly adverse or disproportionate impact' on housing voucher users." 

Currently the plaintiffs and defendants are battling over experts, but this case is going to teach landlords, brokers, property managers, and the like how to frame their policies moving forward. 

So, keep a close eye on this one. 

The New York State Supreme Court (lowest level court with jurisdiction) issued a temporary restraining order until the sooner of a hearing or 9/22/21 concerning New York City's vaccine mandate for public education employees who instead argue for a Vax-Or-Test policy. 

To see the arguments yourself, in The New York City Municipal Labor Committee et al vs. The City of New York et al, click here. 

Specifically, the Order, at issue, "requires [vaccines for] all DOE staff, City employees, and contractors who 'work in person in a DOE school setting or DOE building'; and '[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person' to – no later than September 27, 2021"

The teachers union makes three arguments against the Order, as follows:

• "[B]odily integrity and the right to refuse medical treatment;"
• A violation of "due process rights" because it prevents "permanently-appointed DOE and City employees declining vaccination from engaging in their employment;" and 
• It "fails to provide required exceptions for those with medical contraindications or sincerely-held religious objections". 

The best argument is clearly the third because "DOE has advised that it will not allow those with medical or religious exceptions – should those be accepted – to continue working in person under a strict testing regimen, or remotely with those students receiving remote instructions. Nor is it clear at this stage how those who refuse vaccination will be treated as to leaves, benefits, and other statutory rights." 

While DOE may be able to refuse a given accommodation request that results in an employee working in a building, accommodations must be decided on a case-by-case basis, under binding law, and therefore, such a blanket policy is legally problematic. 

As we've been suggesting from the outset, NYC Government should negotiate with the Union as to appropriate accommodations. Think about it like a class action of the cooperative dialogue (required mediation following an accommodation request under NYC employment discrimination law).

Otherwise, NYC Government will continuously find itself engaging in individualized cooperative dialogues with each employee that requests an accommodation. That is a financially infeasible result for NYC plus it will cause many teachers to bring suit following each cooperative dialogue. All of this can and should be amicably resolved through advance negotiations by giving the Unions a seat at the table.

In an effort to further provide adequate COVID-19 safety protocols for federal contractors and subcontractors, on September 9, 2021, President Biden signed Executive Order 14042, requiring federal agencies to ensure that contractor and subcontractor contracts contain a clause requiring contractors and subcontractors to comply with all guidance for workplace locations published by the Safer Federal Workforce Task Force ("SFWTF").

President Biden established the SFWTF in order to provide guidance to the heads of Federal Govt. agencies on employee safety during the ongoing COVID-19 pandemic. By September 24, 2021, the SFWTF will provide explanations of protocols required of contractors and subcontractors to ensure workplace safety compliance at workplace locations. Stay tuned for further information as it becomes available. 

It appears that Executive Order 14042 goes hand-in-hand with Executive Order 14043, also signed by President Biden on September 9, 2021, which requires COVID-19 vaccinations for all federal employees, subject to certain exceptions. Additionally, by September 16, 2021, the SFWTF is required to provide guidance to federal agencies who must implement a program requiring COVID-19 vaccination for its employees. Stay tuned for our analysis of that guidance as well. 

Clearly, President Biden has taken drastic steps in an attempt to slow down the spread of the ongoing COVID-19 virus. 

It will be interesting to see what guidance protocols the SFWTF comes up with over the course of this month - do you think it will be challenged in court? 

Stay tuned...

The Federal Court for the Northern District of New York has enjoined vaccine mandates based upon sincerely held religious beliefs by way of issuing a Temporary Restraining Order in the case of Dr. A v. Hochul.  

Here is how the plaintiffs' argued that the vaccine violate their sincerely held religious beliefs - "vaccines [] were tested, developed or produced with fetal cells line derived from procured abortions." According to the plaintiffs:

 Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and manufacture the J&J COVID-19 vaccine and the final formulation of this vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg) and/or host cell DNA (≤3 ng).

 Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in research related to the development of the Pfizer COVID-19 vaccine.

 Moderna/NIAID: Aborted fetal cell lines were used in both the development and testing of Moderna’s COVID-19 vaccine.

Further, plaintiffs religious beliefs are that they "oppose abortion under any circumstances, as they believe that abortion is the intrinsically evil killing of an innocent" and follow "spiritual leaders... who urge Christians to refuse said vaccines to avoid cooperation in abortion and to bear witness against it without compromise" and finally, their "religious conviction [is] against involuntary or coerced vaccination as an invasion of bodily autonomy contrary to their religious beliefs."

To be clear, the case is far from over with the next court deadline for the defendants to respond being set at September 22, 2021 at 5pm. As of this moment, no preliminary injunction or permanent injunction has been ordered. At this stage, the court has merely granted a temporary restraining order, which prohibits the denial of "religious exemptions from COVID-19 vaccination" until round two of the case.

However, if you are the type of person who has a sincerely held religious belief against vaccination, you should use this case as your blueprint to request an accommodation.

NYC Council has enacted local law 1339-2019, which amends Title 21 of the NYC Administrative Code by adding section 21-142, requiring the DSS to provide CityFHEPS (a rental assistance program designed to help individuals and families find and keep housing) applicants with written notice about source of income discrimination at the time an applicant receives a shopping letter from the DSS. 

The notice would provide information about protections under the NYC Human Rights Law related to source of income discrimination.  

The notice will provide the following: 

• Examples of phrases that may indicate discrimination based on lawful source of income.
• A statement that it is illegal for landlords, brokers, and other housing agents to request additional payments for rent, security deposit, or broker's fee because an individual receives rental assistance.
• A statement that it is illegal for landlords, brokers, and other housing agents to publish any type of advertisement that indicates a refusal to accept rental assistance.
• A statement that an individual has a right to be free from discriminatory, harassing, or threatening behavior or comments based on individuals' receipt of rental assistance. 
• Contact information for the department's source of income discrimination unit.

Clearly, this local law significantly stops landlords from discriminating against prospective or existing tenants that qualify for source of income under the CityFHEPS program. On the flip side of the coin, the law undoubtedly benefits those receiving source of income from the CityFHEPS program and prospective tenant applicants of the CityFHEPS program, by greatly reducing the likelihood of landlord discrimination based on source of income, while also providing a method to report any future source of income discrimination. 

What's missing is that CityFHEPS recipients should know that they can file suit and get their attorneys' fees paid if they are victims of discrimination. While the BYC Council has made it clear that source of income discrimination will not be tolerable on any level, are landlords prepared to avoid claims of discrimination?  

Landlords - what are you doing to enact policies so your teams don't discriminate? 

Struggling employers can reduce their employee's hours and those employees can offset their lost wages with unemployment insurance (UI) under the Shared Work Program, which now offers even more flexibility thanks to S.4049, which Governor Hochul signed on Labor Day (9/6/21).

The Shared Work Program provides employers with an alternative to laying off workers during business struggles by allowing employees to receive partial UI benefits while working reduced hours. 

Previously, under the Shared Work Program, employees could only collect partial UI benefits for up to 26 straight weeks, regardless of what their maximum benefit entitlement is under UI. 

Now, the new legislation changes the cap on shared work benefits from 26 straight weeks to an amount of time equal to 26 weeks' worth of benefits. In other words, employees can now collect UI benefits until they have reached their maximum benefit amount under UI. 

This change will ultimately extend the length of time a worker will receive benefits under the Shared Work Program.

According to Gov. Hochul, "these bills [workforce legislation package] will ensure that workers receive fair wages, benefits, and are kept safe in their work places." 

How big of an impact do you think this new legislation will have on workers and employers going forward? 

Episode 208 of The Lieb Cast.

Stop complaining about governmental vaccine rules for where you work and where you go. Just live in the right place for you. We explain NYC's vaccine rules to participate in everything and Montana's new anti-discrimination law that prohibits changing opportunities based on vaccination status. 

Search "The Lieb Cast" on any podcast player.