The Stop Sexual Assault and Harassment in Transportation Act passed the House on March 30, 2022 and now makes its way to the senate. 

If passed, the Act will require airlines, railroads, vessels, buses, and transit entities (e.g., Uber / Lyft) to establish "a formal policy with respect to transportation sexual assault or harassment incidents" together with appropriate trainings. 

It is specifically designed to notice, warn, prevent, and combat sexual assault and harassment by the public and staff making transportation safe for all involved. 

The Act establishes civil penalties against harassers starting at $35,000. 

Shouldn't it be safe to travel and shouldn't it be safe to work in transit?

A new anti-discrimination law is set to replace the current Standard Operating Procedure Law for NYS real estate brokers / salespersons. 

The current law is explained at our blog here and Governor Hochul's prior memorandum, from when she signed such law, indicating a change in the future, is here. 

Now, Governor Hochul has signed S7729 and made her promised changes to the Standard Operating Procedure Law. 

If you are confused, here is the Lieb Cast discussing this confusion and straightening it all out.

Here are the big 4 takeaways:

1. Real Estate Brokers must have Standard Operating Procedures (SOPs) as to:

(i) whether prospective clients shall show identification;

(ii) whether an exclusive broker agreement is required; [and]

(iii) whether pre-approval for a mortgage loan is required; and

(iv) any other such standard operating procedures as the Secretary of State shall determine by regulation and upon notice and public hearing. 

2. Rather than brokerage firms being required to submit such SOPs to the Secretary of State, as required under the current law, under the new law, they will be required to first date stamp and notarize their SOPs, and then, post them on any publicly available website and mobile device application that the brokerage / team(s) / salesperson(s) maintain while also making them available, on request, to the public at their office locations;

3. On license renewal, brokers will be required to affirm their compliance with the new law to the Department of State; and 

4. Brokers must follow the current law until July 16, 2022 when this new law is first effective.

Remember, brokers who stray from their SOPs are going to have to explain, to DOS and/or in a discrimination lawsuit, why a particular buyer / tenant is being treated differently from the SOPs and how that act does not constitute discrimination.

If you think that you are being discriminated against at work, in housing, within education, or during any other aspect of your life, you should take the following 5 steps immediately:

1. Make Records: Memory fades and uncorroborated facts are unbelievable so you need to create evidence if you plan to bring a discrimination claim. If you live in a state like NY, where recording a conversation only requires one-party consent, then, start recording all of your conversations with witnesses and perpetrators immediately. If not, stick to a daily diary of events. Either way, get that evidence recorded starting now.
2. Save Documents: If discrimination is occuring at work, make sure to take all of your employment agreements, policy manuals, and procedure documents and put them onto your personal computer or turn them into printed form. If discrimination is happening in housing, compile your lease, house rules, and all other written documents and make sure they are similarly saved. Remember, from the moment that you believe that you are a discrimination victim, you need to start creating a file of all the relevant documents to the discriminatory events, including everything peripheral thereto. When in doubt as to whether a document is relevant, save the document. 
3. Befriend Witnesses: They say it takes a village and that couldn't be more true when you are trying to overcome discrimination that is wronging you. To win a discrimination case, you need allies and advocates in your corner. Did you know that your allies are also protected under discrimination law and can bring a claim themselves if they face retaliation for assisting you? 
4. Stay Strong: Most victims are afraid to fight for their rights because they fear that they will face a worse situation if they speak up. If this is you, please know that every act of retaliation against you gives you a further legal claim against the perpetrator. Did you know that even if you lose your discrimination case, you can still recover damages on a retaliation claim? So, don't be afraid to speak up and fight for your rights.  
5. Protect Yourself: This is the most important tip that we can give. You should always worry less about your ability to sue for damages incident to being discriminated against and worry more about being safe. If you feel in danger, always get out of that situation immediately and call the police. 

On March 8, 2022, S5063 was passed by the NYS Senate. It's now with the Assembly. 

The law would prohibit employers from discriminating against individuals based on such individual's status as a caregiver. 

This law will fill an important protection for employees who typically argue familial status discrimination or sex discrimination in such circumstances, but both categories really are like fitting a square peg in a round hole. 

As the Bill's Justification explains, "18 percent of adults in the United States have caregiving responsibilities" and these people need access to reasonable accommodations in limited circumstances, such as supervising "the diagnosis, care, or treatment of mental or physical illness, injury, or health condition of the care recipient." 

In NYC, caregiver status is already protected. So, if you work there, you already have rights. 

1) Vaccine/Mask Mandates

• NYC Vaccine Mandate

NYC, via an Order of the Commissioner of Health and Mental Hygiene, now requires that all employers ensure that its workers are vaccinated against COVID-19. All private sector workers had to receive their first dose of a COVID-19 vaccine by December 27, 2021 and a 2nd dose 45 days later. Employers are further required to verify and keep a record of each worker's proof of vaccination. Workers may seek a reasonable accommodation for a qualifying disability or sincerely held religious belief. Violators may be penalized $1,000 per violation.

• OSHA (Federal) Mask Mandate

Citations (with large monetary penalties) for non-compliance with the OSHA vaccine mandate for all employers with 100+ employees is scheduled to begin on January 10, 2022. OSHA's mandate requires that qualifying employers ensure that all employees "be vaccinated or wear a protective face covering and take weekly tests." While the Sixth Circuit upheld the vaccine mandate, the U.S. Supreme Court will hear oral arguments on the vaccine mandate on January 7, 2021. Stay tuned to our blog for updates.

• NYS Mask Mandate 

Governor Hochul's statewide mandate requiring face mask/covering at all indoor public places is currently effective until January 15, 2022 (to be re-evaluated after this date). The mandate does not apply to indoor public areas that require proof of vaccination as a condition of entry. However, a business cannot "mix and match" i.e. permit individuals who show proof of vaccination to enter mask free while permitting those who do not present proof of vaccination to enter wearing a mask. Either no one is permitted entry that cannot provide proof of vaccination or everyone must wear a mask (whether vaccinated or not).

2. New York State HERO Act

On May 5, 2021, the NY HERO Act was signed into law in order to protect employees against exposure and disease during an airborne infectious disease outbreak. The HERO Act requires employers to take certain measures to protect their employees in the event of an outbreak including implementing an exposure prevention plan. On September 6, 2021, NYS Dept. of Health designated COVID-19 as a highly contagious communicable disease, which means that employers must currently have a written airborne infectious disease policy in effect.

3. Notice of Employee Monitoring

Pursuant to a new law signed by Gov. Hochul, beginning on May 7, 2022, employers in NYS who wish to monitor or otherwise tap telephone calls, e-mails, or internet access of an employee via any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must post the notice of electronic monitoring in a visible place in the office. Businesses will be subjected to fines for violations.

4. Cannabis Use in the Workplace
The Department of Labor issued guidance on Section 201-D of the NY Labor Law which prohibits an employer from discriminating against employees for using cannabis outside of the workplace on their own time. While, per the guidance, an employer may prohibit cannabis use during work hours, an employer may only discipline employees (where employee did not use cannabis during work hours) who "manifest specific articulable symptoms of impairment" due to cannabis use. For example, odor of cannabis, without more, is insufficient to discipline an employee.

5.  Whistleblower Protections

Effective January 26, 2022, employees/independent contractors will have significantly expanded whistleblower protections, pursuant to Labor Law 740, if they disclose or threaten to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer, that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.

6. Shared Work Program

Employees, without fear of retaliation, may petition their employer, in writing in advance of a layoff or within ten (10) days after a layoff to implement a “Shared Work” program (A shared work program was formed to assist employers in avoiding layoffs and maintain trained workers during an economic downturn by allowing employees to receive partial unemployment benefits while working reduced hours).

7. Requirement to Include Minimum and Maximum Salaries for all Posted Positions

Beginning in April 2022, unless vetoed by January 14, 2022, a new law will require NYC employers to include in all job advertisements, the minimum and maximum salaries for the posted position. Positions extend to jobs, promotions, or transfer opportunities. Employers that fail to include the minimum and maximum salaries will be in violation of the NYC Human Rights Law.

8.  Mandatory Enrollment in Retirement Plan

Write down December 21, 2021 as the date that real estate brokerage was changed forever in NYS. That is when S2131A was signed into law and became effective. 

If you are a real estate salesperson or an associate real estate broker at a brokerage firm that is unaware of this new law, it's time to change brokers. 

This law requires your broker to institute standardized operating procedures for the prerequisites prospective homebuyers shall meet and to submit such procedures to the Department of State. 

If procedures are changed, whatsoever, the new procedures shall be submitted within 30 days of the change. 

Plus, the law requires the Secretary of State to promulgate regulations and the combined law / regulations shall, at a minimum, require brokerages to have a policy as to: 

1. Whether prospective clients shall show identification; 
2. Whether an exclusive broker agreement is required; &
3. Whether pre-approval for a mortgage loan is required. 

If you are a salesperson who is operating under a brokerage's license that fails to satisfy this new submission of procedures requirements, or if you fail to follow the procedures, you are subject to a license law violation and penalty, including revocation or suspension of your license. 

This is very serious and will also work as important evidence in any and every fair housing / discrimination litigation moving forward. 

Starting on June 19, 2022, real estate licensees in NYS will be required to complete "at least two hours of instruction pertaining to implicit bias awareness and understanding" as part of their 22.5 hours of continuing education to renew their license because of a new law, S538B. 

According to the law, "'implicit bias' shall mean the attitudes or stereotypes that affect an individual's understanding, actions and decisions in an unconscious manner."

Lieb School is ready and already offers an implicit bias course that counts towards the fair housing and discrimination requirements. To comply with the new law, we are re-submitting this course to count towards the required implicit bias training as well. 

Starting on April 20, 2022, real estate licensees in NYS will be required to complete "at least two hours of cultural competency training" as part of their 22.5 hours of continuing education to renew their license because of a new law, S979A. 

Lieb School is on top of making sure that its students lead the industry, having already drafted curriculum to satisfy this requirement. Our course will educate licensees on the following subtopics:

1. Right to Social Benefits of Integration
2. Misunderstanding in Cultural Competency
3. 4 Elements in Developing Cultural Competency
4. Friction Between Cultural Sensitivity & Discrimination Law
5. Cultural Norms, Preferences, & Challenges
6. Cultural Competence Techniques

Governor Hochul signed Bill A07373 into law yesterday which permits employees to petition their employer (in writing, within ten (10) days after a layoff, or in advance of a layoff) to implement a "Shared Work" program in lieu of a layoff. While employers are not required to implement a Shared Work program, employers must respond to the employees' petition in writing within seven (7) days and may not discriminate or retaliate against any employees who bring a petition.

The Shared Work program was formed to assist employers in avoiding layoffs and maintain trained workers during an economic downturn by allowing employees to receive partial unemployment benefits while working reduced hours. 

Upon the legalization of cannabis in New York State, Section 201-D of the New York Labor Law ("Discrimination against the engagement in certain activities") was amended to prohibit employers from discriminating against employees for using cannabis outside of the workplace on their own time. 

The Department of Labor ("DOL") recently issued guidance (in the form of frequently asked questions) regarding certain elements of the law:

1. Employee Discipline: While employers may not discipline employees for using cannabis while off-duty and off-premises, employers may take action against employees who "manifest specific articulable symptoms of impairment" on the job. The DOL guidance defines "articulable symptoms of impairment" as "objectively observable indications that the employee's performance of the duties of the position are decreased or lessened." For example: operating heavy machinery in a reckless manner would likely qualify. The DOL further specified that the following are not, without more, "articulable symptoms of impairment": 
• positive test for cannabis;
• odor of cannabis; and/or
• other typical observable signs of cannabis use.
2. Use at Work: Employers may prohibit cannabis use and possession during all work hours which include breaks and meals periods, even if the employee leaves the worksite, and when an employee is "on-call."
3. Drug Testing: Employers may not test employees for cannabis outside of the following circumstances:
• It is required by state or federal law for a particular position;
• The employer would lose a federal contract or federal funding; or
• The employee manifests "specific articulable symptoms of impairment" (although an employer may not discipline an employee based solely on a positive test, as stated above).  

Starting on October 12, 2021, discrimination cases before the New York State Division of Human Rights (DHR) are no longer permitted to conclude with a private settlement. 

Instead, if settlement is achieved, DHR is now requiring "complainant’s attorney [] to state in writing why they are seeking a discontinuance and, if the reason is private settlement, the discontinuance will not be granted." Rather, "the matter [will be resolved] through an Order after stipulation that indicates the terms of the settlement or to proceed through the agency’s public hearing process." 

The purpose of this new rule, according to DHR, is "to ensure that the terms of any settlement comply with our basic standards and do not violate public policy."

Further, given that three-quarters of discrimination cases result in settlement, DHR will be able to collect better data of what is happening in resolving these disputes by monitoring settlements. Hopefully, DHR will actively compile this data and inform the public of their findings so that litigants can make smart, informed decisions, when settling cases into the future. 

 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."

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.

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.

The MTA needs to explain what reasonable accommodations it made for passengers with disabilities to access the subways during its frequent and inconvenient elevator outages according to the Second Circuit Court of Appeals in Brooklyn Ctr. for Indep. of the Disabled v. Metro. Transp. Auth.

This raises an important question for all landlords - what do you do to provide access for disabled people when your elevators don't work? 

According to the Court, "[a]n “accommodation must overcome . . . non-trivial temporal delays that limit access to programs, services, and activities.” 

While the the MTA offered accommodations such as busing alternatives, notice of outages, and permanent signage explaining alternative routes, the Second Circuit said that wasn't enough to summarily dismiss the case.

Have you audited your accommodation offerings recently? If not, you should. 

If you still don't understand that housing discrimination happens or if you are confused about the long term impacts of discrimination, you need to watch this great explanation of housing discrimination on HBO by John Oliver - it's a must watch for anyone who doesn't understand that housing discrimination from yesterday impacts lives today. 

Alternatively, here is The Lieb Cast tackling the same issue on our podcast back on January 31, 2021. 

Who does the topic better; Lieb or Oliver?

Shouldn't John have Lieb on his show?

What do you think?

As of July 16, 2021, discrimination victims need not have their discrimination complaints notarized before filing them with the NYS Division of Human Rights, per a change to Executive Law 297(1). 

This applies to both victims of employment discrimination and housing discrimination.

According to the laws justification, the notarization requirement "discourage[d] people from filing complaints" and the Division nonetheless received over 6,000 complaints annually. 

How many complaints will the Division receive now? 

Do you think that this new law makes sense? 

Does it matter if a document is notarized? 

Shouldn't preventing discrimination be as easy as pie? 

On July 16, 2021, new Executive Law 170-e was signed into law and requires that all administrators of housing assistance (governmental / nonprofits) ensure that "individuals who have applied for and are eligible to receive such assistance, payment, subsidy or credit are informed, in writing, of their rights and remedies available under law, with regard to lawful source of income discrimination.”

The law is effective as of September 14, 2021 and that is an important deadline for landlords, brokers, and property managers to get up to speed on the rules to avoid source of income discrimination in their ranks.

To illustrate, a housing provider who requests a credit score from a voucher recipient could be discrimination, a housing provider who demands a minimum income from a voucher recipient could be discrimination, and a housing provider who makes receipt of a voucher a precondition to seeing units could be discriminating.

Do you have policies in place to avoid your team discriminating and subjecting you to a major lawsuit??

More so, those policies better include the forthcoming regulations that the State Division of Human Rights is going to promulgate to particularize this new law.

Are you ready? 

The United States Court of Appeals for the Second Circuit of New York recently dismissed a lawsuit filed by four African American firefighters, pursuant to the American with Disabilities Act, claiming that the FDNY discriminated against them by denying their request for a reasonable accommodation to grow facial hair.

In Bey et al. v. City of New York et al., the four African American firefighters suffered from pseudofolliculitis barbae ("PFB"), a skin condition most commonly affecting African American males, which causes skin irritation after shaving (The lower court previously dismissed the plaintiffs race discrimination claims). The Second Circuit ruled that the FDNY did not discriminate against the firefighters because they were abiding by a binding safety regulation requiring firefighters to be clean shaven in areas where a respirator seals against the skin on their faces. The Court further stated that any challenge to this regulation should be directed to OSHA (Occupational Safety and Health Administration), not their employer. 

Do you agree with the decision?