The Department of Labor (DOL) announced that on March 11, 2024, a new rule, 89 FR 1638, will go into effect restoring the multifactor analysis used by courts for decades in determining if an individual is an employee or Independent Contractor (IC) under the Fair Labor Standards Act (FLSA). 

Misclassifying workers as ICs rather than employees can result in wage claims with liquidated damages and attorneys' fees under the FLSA, which can be catastrophic for business to continue to exist. Simply, you have to get it right and ICs that are misclassified have excellent cases because liquidated damages are two (2) times the amount not received. 

This new rule is being announced because DOL had concerns about the 2021 IC Rule where it did not fully align with the FLSA's text and purpose. 

The six factors under the New Rule are:

1. Opportunity for profit or loss
2. Financial stake and nature of resources invested in the work
3. Degree of permanence of the work relationship
4. Degree of control the employer has over the person’s work
5. Whether the work is essential to the employer’s business
6. Worker’s skill and initiative

This new rule provides a consistent approach for conducting business with ICs and employes. 

You can read the Department of Labor's release on this new law here. You can read the final rule here. 

Recent legislation revising the Real Estate Property Law regarding the qualifying education requirements for real estate brokers was recently adopted.  Effective September 21, 2022, all individuals applying for a real estate broker license must complete two hours of instruction pertaining to cultural competency. 

In order to satisfy the new education requirements, broker applicants will be allowed to submit proof of completing a 2-hour continuing education course on cultural competency.

Please note: Effective December 21 ,2022, the 45-hour broker course will increase to 75 hours and includes cultural competency training.

Lieb School offers the 2 hour cultural competency course. You can register for it here. 

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

5. CAN A LANDLORD’S AGENT COLLECT A “BROKER FEE” FROM THE PROSPECTIVE TENANT? No, a landlord’s agent cannot be compensated by the prospective tenant for bringing about the meeting of the minds. NY RPL § 238-a(1)(a) provides, in part, “no landlord, lessor, sub-lessor or grantor may demand any payment, fee, or charge for the processing, review or acceptance of an application, or demand any other payment, fee or charge before or at the beginning of the tenancy, except background checks and credit checks….” The fee to bring about the meeting of the minds would be a “payment, fee or charge before or at the beginning of the tenancy” other than a background or credit check as provided in this section. Accordingly, a landlord’s agent that collects a fee for bringing about the meeting of the minds between the landlord and tenant (i.e., the broker fee) from the tenant can be subject to discipline. 

It is well settled that “[a]n agency's interpretation of its own regulation ‘is entitled to deference if that interpretation is not irrational or unreasonable’” &

“the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the  administrative agency and its interpretive regulations... And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight.”

50% in 3 Months 

248 in 3 months

• 121 closed
• 2 withdrawan
• 2 duplicates
• 19 civil matter
• 9 resolved
• 8 no violation
• 24 no jurisdiction
• 11 insufficient evidence
• 43 were holds placed on licensee's record to address brefore renew
• 6 were referred to counsel for a hearing

• As to escrow, we now know that we must deposit all escrow money within 3 business days and hold it in a secure place like a safe until such time as its deposited in the bank.

• As to compensation, we have learned that if we are paid by more than one source, we no longer have to receive consent from all parties, just our client.

• As to advertising, we understand that business cards must include our license type.

• As to qualifying education, we know that we now need to learn 1 hour on the new topic of License Safety, but the topic of Property Insurance has been reduced to only 1 hour from 2. 

• Finally, with respect to continuing education, we no longer have to take a minimum of 3 hours in a course module, but can take only 1 hour when such a course is available (Lieb School is launching a 1 hour Agency Disclosure course very soon) and each hour is now only 50 minutes long (for bathroom breaks, etc.) whereas it used to be a 60 minute requirement. 

NY Real Estate Continuing Education 22.5 Credit 

License Renewal Course Package 

(click for online classes preview - turn sound on)

Anywhere and anytime you can finish all 22.5 hours of real estate continuing education as long as you have internet access. Lieb School’s online license renewal package includes video, audio and interactivity to get the job done without making you want to gouge your eyeballs out. Satisfies Department of State, New York Real Estate Continuing Education Requirements for License Renewal.

1. The partnership between the Department of State and the Division of Human Rights to enforce fair housing laws; 
2. The new agency disclosure continuing education requirements as signed by the Governor into law earlier this month; 
3. Diversity being an approved topic for continuing education;
4. Notice of regulatory changes for the following topics will appear on the state register for 45 day comment period on 9/28/16: 19 NYCRR 175.1 (escrow and how much time can be held before deposited), 19 NYCRR 175.7 (consent of parties), 19 NYCRR 176.3 (license safety course and reduction in hours to property insurance course), 19 NYCRR 177.3 (allows training modules to be 1 hour rather than 3), 19 NYCRR 177.7 (allows the computating the computation from 60 to 50 minutes), and 19 NYCRR 175.25 (advertisements of business cards that license type be listed as a clarification); and
5. Changing point allocation for acting as listing agent and selling agent.

Of note, no quorum existed so no votes were taken. The next meeting is expected in January 2017.