Legal Analysts

Showing posts with label brokers. Show all posts
Showing posts with label brokers. Show all posts

Monday, March 04, 2024

Freelance Isn't Free Act Changed, RE Brokers / Salespersons Pay Attention

When it comes to the Freelance Isn't Free Act, out with the old and in with the new (A8535). 

The old law (Labor Law 191-d) was supposed to take effect on May 20, 2024 - no more. 

Now, a new version of the statewide Freelance Isn't Free Act will become effective August 28, 2024 and it authorizes the NYS Attorney General to sue and enforce the law. 

This version, passed on March 1, 2024, is at General Business Law Article 44-A. 

The new law applies to "one natural person" who earns at least $800 from the same hiring party within 120 days, except that the law doesn't apply to: 
  1. Independent contractor who solicit manufacturing orders in New York State;
  2. Lawyers;
  3. Doctors; and
  4. Construction contractors.
Under the new law, freelancers must be paid no later than when payment is due under the contract or within 30 days after completion of the freelancer's services under the contract. 

More importantly, all freelancers have a right to a written contract (hiring manager must keep for at least 6 years) that includes, at a minimum, 
  1. The name and mailing address of both the hiring party and the freelancer; 
  2. An itemization of all services to be provided by the freelancer with their value and the rate / method of compensation; 
  3. Payment date or method to determine such date; and
  4. Invoice date by freelancer.
Remember, the big change is that the NYS Attorney General is now involved, has a right to demand a copy of these contracts, and a failure to provide the contract to the Attorney General works a presumption that the freelancer's allegations of what is in the contract are correct. 

More so, the Attorney General is authorized to bring a lawsuit to enforce the law and obtain restitution for freelancers plus a penalty of $1,000 for a first violation $2,000 for a second violation, and $3,000 for a third and subsequent violations. 

Additionally, freelancers have a private right of action that can be brought within 2 years, or 6 years if it's for untimely payment or discriminatory retaliation after such freelancer insisted on their rights under the Freelance Isn't Free Act. 

Get this, untimely payment also gives the freelancer the ability to sue for their attorneys' fees and may give them the ability to obtain double damages in certain circumstances. 

Finally, there is a $25,000 penalty against hiring managers that violate the law by a pattern or practice. So, hiring managers - ALL NYS REAL ESTATE BROKERS - you better update your contracts immediately.

Monday, November 02, 2020

New Discrimination Standard Under the Fair Housing Act is Effective

Effective October 26, 2020, HUD implemented a new disparate impact fair housing standard.


Disparate impact discrimination occurs when housing practices have an unjustified discriminatory effect even though they were not motivated by a discriminatory intent. 

The new standard exists at 24 CFR 100.500 and it makes a claim of disparate impact discrimination far harder to bring and even harder to prove as compared to the prior HUD standard.

Previously, the regulation did not contain an express pleading standard and instead, only required the plaintiff to prove "that a challenged practice caused or predictably will cause a discriminatory effect." 

Now a plaintiff must "sufficiently plead facts to support each of the following elements: (1) That the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law; (2) That the challenged policy or practice has a disproportionately adverse effect on members of a protected class; (3) That there is a robust causal link between the challenged policy or practice and the adverse effect on members of a protected class, meaning that the specific policy or practice is the direct cause of the discriminatory effect; (4) That the alleged disparity caused by the policy or practice is significant; and (5) That there is a direct relation between the injury asserted and the injurious conduct alleged."

With respect to the 3rd element, that is a very heavy burden for a plaintiff to satisfy at the pleading stage of litigation because the requisite evidence is often unavailable until the parties have engaged in the discovery process. 

Moreover, while the prior regulation provided that a defendant would then have to rebut the claim by "proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests[,]" a defendant now can just rebut the first element "by producing evidence showing that the challenged policy or practice advances a valid interest (or interests) and is therefore not arbitrary, artificial, and unnecessary." Changing the term from a "substantial" interest to "a valid interest" results in the defendant's burden seemingly being far lower.


Moreover, under the new standard, once the defendant rebuts the first element, "the plaintiff must prove by the preponderance of the evidence either that the interest (or interests) advanced by the defendant are not valid or that a less discriminatory policy or practice exists that would serve the defendant’s identified interest (or interests) in an equally effective manner without imposing materially greater costs on, or creating other material burdens for, the defendant." Previously, this was the defendant's burden. 

Regardless, there are now also 3 express defenses available, including that "(i) The policy or practice is intended to predict an occurrence of an outcome, the prediction represents a valid interest, and the outcome predicted by the policy or practice does not or would not have a disparate impact on protected classes compared to similarly situated individuals not part of the protected class, with respect to the allegations under paragraph (b). This is not an adequate defense, however, if the plaintiff demonstrates that an alternative, less discriminatory policy or practice would result in the same outcome of the policy or practice, without imposing materially greater costs on, or creating other material burdens for the defendant. (ii) The plaintiff has failed to establish that a policy or practice has a discriminatory effect under paragraph (c) of this section. (iii) The defendant’s policy or practice is reasonably necessary to comply with a third party requirement, such as a: (A) Federal, state, or local law; (B) Binding or controlling court, arbitral, administrative order or opinion; or (C) Binding or controlling regulatory, administrative, or government guidance or requirement."

Housing participants should be particularly interested in the third available defense in the form of a controlling administrative opinion or binding regulatory guidance. It is strenuously suggested that every housing industry participant seeks such opinion or guidance as a necessary incident of any business plan covering a new product or service. To fail to do so is just reckless in a world where such a defense exists. 

That being said, it is noted that this regulation only pertains to a federal housing discrimination claim and states and locales may offer increased protections to their citizens. So, these other laws must also be analyzed for housing participants to the extent that they afford disparate impact claims (e.g., NYC Admin. Code). 

Saturday, December 21, 2019

New Law: Prospective tenants can obtain history of gas & electric charges incurred

On December 20, 2019, Senate Bill S3585 became law.

This bill's purpose is that it "[r]equires gas and electric utility companies to make available to any landlord and lessor of residential rental premises, upon the request of a prospective tenant or lessor of a residential unit, information concerning gas and electric charges incurred from prior occupants of the dwelling."

The bill's justification explains that "[p]eople should have the right to inquire from a gas and electric company the amount of the bills being paid for heat and electric service by the prior customer before they move into a residence. They should not have to rely on a landlord or homeowner's word about how much it costs to heat a residence."

This new law, Public Serivce Law section 66-p, is effective on 4/18/2020.