LIEB BLOG

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Showing posts with label featured. Show all posts
Showing posts with label featured. Show all posts

Thursday, September 16, 2021

Podcast | Legal Breakdown and Analysis of Biden's Employment Vaccine Mandate

 The Lieb Cast answers the following questions about Biden's employment vaccine mandate in the latest podcast: 


  1. Can Biden / OSHA issue an Executive Order / Regulation mandating employment vaccines? 
  2. Can the Federal Congress issue a statute mandating employment vaccines or is that a state's rights issue?
  3. What is the precedent for an individual state to issue a vaccine mandate and would it be upheld?
  4. Does it matter if an individual state's Governor or Legislature issued an employment vaccine mandate for enforceability?
  5. How does a sincerely held religious belief against vaccines avoid employment vaccine mandates?
  6. How can employers refuse an accommodation who has a disability or sincerely held belief and requests to avoid an employment vaccine mandate?

Plus, we discuss brisket, ice cream, 9/11, Rosh Hashanah, Yom Kippur, horse dewormers, and most importantly, we break down the hiring / staffing issues faced by employers everywhere.


Link to Podcast: https://www.listentolieb.com/876124/9172946-legal-breakdown-and-analysis-of-biden-s-employment-vaccine-mandate




Wednesday, September 15, 2021

What is a Sincerely Held Religious Belief?

We have been inundated with calls this morning, since Andrew Lieb's appearances on Fox 5, LI News Radio, and WFAN this past week so we thought it was important to put some general information out there for those seeking a vaccine exemption based upon sincerely held religious beliefs. 


To be clear, a sincerely held religious belief DOES NOT automatically get you an exemption from a vaccination requirement.

Instead, your religious belief will, at best, get you an adjustment (known as an accommodation) to a vaccine requirement if such adjustment does not create an undue hardship for your employer. 


Let's break that down a little further.


First, the Equal Employment Opportunity Commission (EEOC) tells us what a sincerely held religious belief is means here. In summary, a sincerely held religious belief "concerns 'ultimate ideas' about 'life, purpose, and death.' Social, political, or economic philosophies, as well as mere personal preferences, are not 'religious'," 


As a result, if you want to claim a religious exemption, DO NOT make vaccine mandates POLITICAL. Instead, make your objection to vaccines SOLELY about your vision for life, purpose, and death. 


Moreover, don't be defeated if you are not a practicing member of an organized religion or if your religious leaders disagree with your ultimate ideas. Specifically, EEOC tells us that "new, uncommon, [beliefs, which are] not part of a formal church or sect, [and] only subscribed to by a small number of people, or that seem illogical or unreasonable to others" also qualify.  


That being said, there is another prong to the law that is being lost in the conversation today. 


An exemption to a vaccination requirement need only be given if it does not present an undue hardship to your employer.


Under federal law, employers are in the driver's seat because an undue hardship is anything that creates more than a de minimis cost. So, unless a worker works from home and wants to continue to work from home it will be a challenge to find a vaccine accommodation request that qualifies. Barriers, masks, tests, changed hours, modified locations, and the like will likely pose more than a de minimis cost and therefore, an accommodation request can be denied. But, that is ONLY under federal law. 


States, like New York, afford workers with more rights. In New York, a worker should receive an accommodation unless it imposes a significant expense or difficulty on an employer. That being said, accommodations that compromise the safety of others, such as co-works, customers, and the public, at large, always create undue hardships on employers. Therefore, workers should be highly conscious of public health when making their requests.


Putting this all together, a worker should carefully draft their accommodation request form and emphasize that they truly have a sincerely held religious belief by focusing away from politics and instead, on such issues as life, purpose, and death. Then, a worker's request should suggest alternatives to the vaccine such as limiting contact with others, regular COVID testing, and masking. Then, if the worker gets denied, they will have a good case for employment discrimination, which can and should be filed in court.


If that is the route that you are thinking, please hire a lawyer from the get go. Get any employment lawyer, at the start of it, because you are going to need to ensure that your initial accommodation request form (and other communications) do not kill your case before it's filed. You are also well advised to keep your politics out of it, out of social media, and away from your daily conversations. If you are truly seeking a religious exemption, politics aren't what is relevant, your right to worship freely is what matters.




Tuesday, November 24, 2020

Stop Speculating about Mandatory Vaccines. The Law is VERY Clear!

There is an EXPLOSION of 2 fundamental rights: Personal freedom and societal regulation. On #theLIEBCAST podcast, we review the substantive due process right to personal liberty and public health.

We look at a previous case from the 1905 smallpox public health crisis and discuss religious and disability exemptions. We discuss how the government has historically limited our liberties in regard to the safety of water quality, transportation, sewage and disease control. What does the country need to get herd immunity from COVID19 and get back to a new normal? #ListenToLieb





Wednesday, July 29, 2020

Hiring an At-Home-Teacher for Your Kids? 5 Legal Issues You Will Face

Are schools opening in the fall?

It's looking less likely with each passing day as we are experiencing a national death uptick from COVID and it has invaded Major League Baseball.

Even if schools do open, are you comfortable sending your children?

Maybe you are considering hiring an at-home teacher because you can't possibly continue to work, care for your children and play teacher simultaneously.

Before you do, read our 5-Point Plan to do this legally:


1. Minimum Wage/Overtime/Notice of Pay: Pursuant to the NYS "Domestic Workers Bill of Rights", an at-home teacher must be paid at least minimum wage for all hours worked. The current minimum wage for workers on Long Island is $13 an hour. Domestic workers must be paid at a rate of time and a half for all hours worked over forty (40) in a given week. In addition, employers must provide a Notice of Pay Form to the worker at the commencement of employment which includes the employee's regular hourly rate, overtime rate and regular pay day. Employers of domestic workers can face significant damages if they fail to comply with these wage and hour laws, including but not limited to backpay, double damages, and attorneys' fees.

2. Tracking Hours Worked: Even if you pay a domestic worker for all hours worked in accordance with the law, you can still face liability if you do not accurately and contemporaneously track hours worked. If the employer fails to keep contemporaneous records of hours worked (e.g. sign-in sheets), a court will presume that the employee's account of hours worked is accurate.

3. Workers Compensation Insurance: If a domestic worker works forty (40) or more hours per week or lives on-premises (e.g. a live-in nanny who also teaches the kids), the worker must be covered by workers compensation insurance. While coverage is not required if the domestic worker works less than forty (40) hours per week, obtaining a policy, even if not required, is advised because it protects you from a personal injury lawsuit brought by the teacher.

4. Potential Liability for Covid-19 Exposure: Individuals hiring a domestic worker may be exposed to a potential lawsuit if the domestic worker tests positive for Covid-19. While courts have not yet ruled on the admissibility of liability waivers for Covid-19, having a domestic worker sign a waiver that he/she assumes the specific risks associated with exposure to the virus may mitigate exposure. However, gross negligence cannot be waived. Therefore, employers should implement a safety plan including but not limited to: PPE, health screenings, prohibiting people in the house who are symptomatic/have had recent exposure to Covid-19, to mitigate potential liability.

5. Use of Nanny Cams: While use of nanny cams (i.e. video recording a nanny/at-home teacher without his/her consent) is generally permitted under New York State law, nanny cams may not be installed where a nanny has a reasonable expectation of privacy, (e.g. a bathroom or nanny's bedroom). In addition, recording audio, without the consent of at least one party to the conversation, may constitute a felony pursuant to New York State law.



Tuesday, June 30, 2020

NY's Eviction Moratorium is Constitutional - Read What Else the Court Tells Us

If you are a NYS landlord, you MUST read the decision from the case Elmsford Apartment Associates LLC v. Cuomo if you want to be on the top of your game.

We aren't going to discuss the results, beyond saying the Court ruled that Governor Cuomo can legally suspend evictions and more during a pandemic.

We focus on these other gems given to us by the Court - Every property investor (landlord, property manager, broker, flipper, etc.) should read and accept this reality before getting into the investment game:
Evicting a tenant – especially a residential tenant – in New York is a slow, cumbersome and extremely tenant-favorable process, especially when compared to analogous procedures in other states.
Governor Cuomo did nothing to impede the commencement of holdover proceedings… Nor does EO 202.28 suspend[] the landlords’ right to initiate a common law breach of contract action in the New York State Supreme Court to redress a tenant’s failure to perform its payment obligations under his or her lease.
Tenants will continue to accrue arrearages, which the landlord will be able to collect with interest once the Order has expired.
One who chooses to engage in a publicly regulated business… by so doing surrenders his right to unfettered discretion as to how to conduct same.
The expected costs of foreseeable future regulation are already presumed to be priced into the contracts formed under the prior regulation
New York landlords do not enjoy a constitutional right to realize a profit from their rental properties – let alone all the profits contemplated in each of their individual rental agreements.
If the tenant uses the security deposit to pay a month’s rent, and the tenancy ends before the deposit is fully replenished, the landlord can obtain a judgment for the amount expended in repairs.
A special shout-out to the eviction explanation -
To secure an eviction warrant from the housing courts, a New York landlord must serve the tenant a notice of nonreceipt of payment, and give the tenant one final chance to pay by making a demand of payment within 14 days. If the landlord is still owed payment after two weeks have passed, he may commence what is known as a summary proceeding by filing a petition in the civil court, returnable by the tenant within 10 days. If the tenant does not respond in ten days, the court may (but rarely does) issue an eviction warrant immediately. However, if the tenant does respond, however, a trial is set for eight days hence. The trial may be adjourned up to ten additional days if the parties so require in order to produce their witnesses. If, after trial, a judgment is entered for the landlord and the court issues a warrant for eviction, the Sheriff must give the tenant 14 days’ notice in writing prior to execution. There are the usual provisions for appeal and stays issue routinely so that non-defaulting tenants are not evicted before their cases are fully reviewed. But even if the evidence supports a judgment for the landlord, the housing court is not required to order the tenant’s immediate eviction. A tenant may obtain a stay of the issuance of the warrant for up to one year by showing that ‘it would occasion extreme hardship to the tenant or the tenant’s family if the stay were not granted’. Such stays are far from uncommon.
Still think that being a landlord is for you?

This hasn't diminished our motivation to invest in real estate, but as the Court makes clear - we respect the rules and adjust our prices / reserves to account for more rules in the future.

Some years there are less rules and other years there are more, but we know that a keen understanding of the rules will make us profitable as property investors.

If you want profitability too, you need to increase your compliance budget immediately and respect the rules of the game because, as you can see, fighting the governor's office is a losing battle.



Monday, June 29, 2020

NY | How to Reopen Your Business

Reopening isn’t just going back to work – there are 5 steps that businesses must take to open their doors if they want to avoid legal troubles.

Step 1. Review the applicable guidance for reopening & affirm that you will comply.

Each industry has tailored guidelines from NYS DOH, which represents the minimum requirements for you to reopen.
Before you open your doors, you MUST affirm that you have read the guidelines at this link.
Guidance for your industry can be located here.

Step 2. Formulate a business safety plan.

Each business MUST develop a written safety plan to prevent the spread of COVID.

The plan must be retained on the premises of the businesses and made available for inspection by DOH or your local health and safety authorities (zoning) upon request.

The sample plan provided by NYS is 7 pages long and includes a daily mandatory health screening assessment for employees and essential visitors, a requirement to record a log of all those physically present at the premises, cleaning requirements, and much more.

Start writing your plan now in compliance with the law if you plan to reopen.

Step 3. Create logbooks to comply and maintain policies.

You need to create forms to implement your plan. You need the health screening assessment developed, a logbook for cleaning, and a logbook for visitors. These can be inspected by DOH and other authorities so they better exist before you open your doors.

Step 4. Floor markings and PPE.

You are required to provide your entire team with PPE so it’s time to start ordering supplies yesterday. Plus, you need to place signage and floor markings throughout your premises to maintain proper social distancing. So, take out your tape and measuring stick to get going.

Step 5. Craft your message.

Your team and your customers need to understand your plan and how it impacts them, or they won’t follow it. So, you need to create a message, start getting it out there via email and make it available to everyone at your business. This message must explain your safety plan and the new policies that you will enforce for the rest of COVID. Getting buy-in is the key to proper implementation and protecting you from suit and negative PR.

Friday, June 05, 2020

Are You Ready to Reopen Your Business? Here is Your 5-Step Plan

5-Step Plan to Reopen Your Long Island Business

We are reopening throughout Long Island!

Phase 2 is Wednesday - Are you ready to open your business?  

Reopening isn’t just going back to work – there are 5 steps that businesses must take to open their doors if they want to avoid legal troubles.

Step 1. Review the applicable guidance for reopening & affirm that you will comply.

Each industry has tailored guidelines from NYS DOH, which represents the minimum requirements for you to reopen.
Before you open your doors, you MUST affirm that you have read the guidelines at this link.
Guidance for your industry can be located here.

Step 2. Formulate a business safety plan.

Each business MUST develop a written safety plan to prevent the spread of COVID.

The plan must be retained on the premises of the businesses and made available for inspection by DOH or your local health and safety authorities (zoning) upon request.

The sample plan provided by NYS is 7 pages long and includes a daily mandatory health screening assessment for employees and essential visitors, a requirement to record a log of all those physically present at the premises, cleaning requirements, and much more.

Start writing your plan now in compliance with the law if you plan to reopen.

Step 3. Create logbooks to comply and maintain policies.

You need to create forms to implement your plan. You need the health screening assessment developed, a logbook for cleaning, and a logbook for visitors. These can be inspected by DOH and other authorities so they better exist before you open your doors.

Step 4. Floor markings and PPE.

You are required to provide your entire team with PPE so it’s time to start ordering supplies yesterday. Plus, you need to place signage and floor markings throughout your premises to maintain proper social distancing. So, take out your tape and measuring stick to get going.

Step 5. Craft your message.

Your team and your customers need to understand your plan and how it impacts them, or they won’t follow it. So, you need to create a message, start getting it out there via email and make it available to everyone at your business. This message must explain your safety plan and the new policies that you will enforce for the rest of COVID. Getting buy-in is the key to proper implementation and protecting you from suit and negative PR.

Here is a radio clip with our employment lawyer, Mordy Yankovich, discussing how to comply and protect your business when you are ready to reopen – have a listen - Real Estate Investing with Andrew Lieb 6/7/20 - Seg 3: Advice for Phase 2 Business Owners Reopening.




Monday, April 27, 2020

Fair Housing Disclosure / Notice / Website Requirements - Effective June 20, 2020

Major NEW Fair Housing Regulations are effective June 20, 2020 according to the NYS Board of Real estate meeting that was held on April 27, 2020.

ALERT: Real estate brokers must implement trainings immediately on their salespersons distributing the new required disclosure form or risk both license law violations and lawsuits for discrimination. Lieb Compliance is ready to help.



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The new disclosure regulation is 19 NYCRR 175.28:

a) A real estate broker shall be responsible to ensure that each individual licensed pursuant to Article 12-A of the New York Real Property Law and associated with such broker provides to a prospective purchaser, tenant, seller, or landlord upon first substantive contact a disclosure notice furnished by the Department, containing substantive provisions of the New York State Human Rights Law. The disclosure notice shall set forth how Human Rights Law complaints may be filed, and such other information as the Department deems pertinent.

b) The disclosure notice required pursuant to paragraph (a) of this section, may be provided to a prospective purchaser, tenant, seller, or landlord by any of the following means: email, text, electronic messaging system, facsimile, or hardcopy. An electronic communication containing a link to the disclosure notice required pursuant to paragraph (a) of this section shall be permissible, provided the communication also contains text to inform the prospective purchaser, tenant, seller, or landlord that the link contains information regarding the New York State Human Rights Law. Oral disclosure does not satisfy the requirements imposed by this section.

c) The disclosure notice required by paragraph (a) of this section shall apply to all real property whether or not it is used or occupied, or intended to be used or occupied, wholly or partly, as a home or residence of one or more persons regardless of the number of units, and shall include: condominiums; cooperative apartments; vacant lands, including unimproved real property upon which such dwellings are to be constructed; or commercial properties.

d) A real estate broker, licensed real estate salesperson, or licensed associate broker that provides the disclosure notice required pursuant to this section by hardcopy, shall obtain a signed acknowledgment from the prospective buyer, tenant, seller, or landlord. Such signed disclosure notice shall be retained for not less than three years. A real estate broker, licensed real estate salesperson, or licensed associate broker that provides the disclosure notice required pursuant to this section by email, text, electronic messaging system, or facsimile, shall maintain a duplicate copy of such disclosure and shall retain the same for not less than three years. If the prospective buyer, tenant, seller, or landlord declines to sign the disclosure notice, the real estate broker, licensed real estate salesperson or licensed associate broker shall set forth under oath or affirmation a written declaration of the facts regarding when such notice was provided and shall maintain a copy of the declaration for not less than three years.

Interestingly, subsection (e) was deleted from 175.28 after public comment. Subsection (e) previously stated "[a] real estate broker shall be jointly liable for any violation of this section committed by any licensed individual associated with such broker." Our comment on the topic, given on January 21, 2020, was discussed at the NYS Board of Real Estate meeting on April 27, 2020.

We commented:
This subsection is superfluous, to an extent, and creates issues with regulatory construction as it indicates that a broker is not jointly and severally liable for other violations of 19 NYCRR 175 and as such, it should be stricken. I imagine the intended purpose is to clarify the impact of RPL 442-c on this regulation, but it should be further clarified as it's ripe for litigation the way it currently exists, as proposed.
As you can see, it's always important to participate in the regulatory process through comments. 

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ALERT: Real estate brokers need to display this new notice in their offices & on their websites. Real estate brokers must audit their real estate salespersons' websites under this new regulation. Lieb Compliance is ready to help.



The new advertising regulation is 19 NYCRR 175.29:

a) A real estate broker shall display and maintain at every office and branch office operated by such broker a notice, furnished by the Department, indicating the substantive provisions of the New York State Human Rights Law relative to housing accommodations. The notice shall set forth
how Human Rights Law complaints may be filed and such other information as the Department deems pertinent.

b) The notice required by paragraph (a) of this section shall be prominently displayed in the window of such office and any branch office maintained by such broker if such broker also provides listings or other postings in the window of such location and must be visible to persons on that portion of the sidewalk adjacent to such office or branch office. If any office or branch office is not accessible from the sidewalk or if postings are otherwise prohibited by any other applicable law, then the notice
required pursuant to paragraph (a) of this section shall be prominently posted in the same location the business license is posted pursuant to subdivision 3 of section 441-a of article 12 of the Real Property Law.

c) All websites created and maintained by real estate brokers, associate real estate brokers, real estate salespersons and any real estate team, as such term is defined by section 175.25 of this title, shall prominently and conspicuously display on the homepage of such website a link to the Department’s notice as required by paragraph (a) of this section, which shall be made available by the Department.

d) A real estate broker, licensed real estate salesperson, or licensed associate broker shall have displayed at all open houses of all real property the notice required by paragraph (a) of this section. In addition, a real estate broker, licensed real estate agent, or licensed associate broker shall
have available at all open houses and showings of all real property the notice required by paragraph (a) of section 175.28 of this part.

Interestingly, subsection (e) was deleted from 175.29 after public comment. Subsection (e) previously stated "[a] real estate broker shall be jointly liable for any violation of this section committed by any licensed individual associated with such broker." Our comment on the topic, given on January 21, 2020, was discussed at the NYS Board of Real Estate meeting on April 27, 2020.

We commented:
This subsection is superfluous, to an extent, and creates issues with regulatory construction as it indicates that a broker is not jointly and severally liable for other violations of 19 NYCRR 175 and as such, it should be stricken. I imagine the intended purpose is to clarify the impact of RPL 442-c on this regulation, but it should be further clarified as it's ripe for litigation the way it currently exists, as proposed.
As you can see, it's always important to participate in the regulatory process through comments. 

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Finally, real estate schools now have to record their fair housing trainings & Lieb School is already in compliance with the new regulation, 19 NYCRR 177.9:

(a) Every entity approved to provide instruction pertaining to fair housing and/or discrimination in the sale or rental of real property or an interest in real property shall cause a recording to be created of each course in its entirety. Such recording shall contain both video and audio of the instruction.

(b) The recording required by paragraph (a) of this section shall be maintained by the approved entity for at least one year following the date such course was provided to an enrolled student. If the entity knows or suspects that the recording is or will be the subject of litigation, then the approved entity shall maintain such recording as required by law.

(c) The recording required by paragraph (a) of this section may be subject to audit by the Department pursuant to section 177.11 of this part.


Friday, April 03, 2020

Paycheck Protection Program - Regulations Explained

The Coronavirus Aid, Relief, & Economic Security Act (CARES Act), signed into law on 3/27/2020, includes expeditious relief for America's small businesses through loans funded at $349 billion.

§1102 of the CARES Act establishes the Paycheck Protection Program (PPP) under the SBA 7(a) Loan Program & §1106 provides forgiveness of up to the full principal of loan.

To fulfill the expeditious intent of providing relief to small businesses, the SBA issued its final rule on 4/2/2020 without the typical 30-day delay for effectiveness. 

We will be discussing the PPP in great detail on Real Estate Investing with Andrew Lieb this Sunday at noon on LI News Radio (WRCN / FM103.9) - If you are in business, don't miss this important segment - it could save your financial life. 

Here is a Summary of the Interim Final Rule found at 13 CFR Part 120
  • Loan Terms:
    • No collateral
    • No personal guarantee
    • No fees
    • Loan payments deferred 6 months (interest accrues)
    • 2-year maturity
    • 1% interest rate
    • Maximum loan $10MM
  • Loan Amount (calculation methodology):
    1. Aggregate payroll costs from last 12 months
    2. Subtract amounts paid to employee over $100K
    3. Divide net of steps 1 & 2 by 12
    4. Multiply step 3 by 2.5
    5. Add outstanding amount of an Economic Injury Disaster Loan made from 1/31/2020 to 4/3/2020 less advances
  • Loan Forgiveness Availability:
    • Employees are on the payroll for 8 weeks 
    • Money used for payroll, rent (lease dated before 2/15/2020), mortgage interest (obligation incurred before 2/15/2020), or utilities (service agreement before 2/15/2020)
    • 75% of loan forgiven must be used on payroll
    • Payroll includes:
      • Small business = Salary, wages, commission, cash tips, vacation / parental / family /medical / sick leave, allowance for separation / dismissal, employee benefits (health / retirement), state / local employment tax
      • Independent Contractor = wage, commission, income, or net earnings
    • Payroll doesn’t include: 
      • Employee with principal residence outside US
      • Salary over $100k (prorated)
      • Fed employment tax from 2/15/2020 to 6/30/2020
      • Qualified sick & family leave wages
    • To prove proper payments, lenders can rely on borrower’s documentation without any verification requirements
  • Application:
    • SBA Form 2483 (lender submits SBA Form 2484)
    • Applicant certifies that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the applicant.
    • Available from 4/3/2020 to 6/30/2020 or until exhausted
    • Borrower can only get 1 loan
    • First-come, first service
    • E-signature / consent permitted
  • Eligibility:
    • Must be small business, non-profit, independent contractor (sole proprietor)
    • Must have < 500 employees (certain exceptions if bigger) with principal place of residence in US
    • Must be in operations on 2/15/2020 with W2 employees
    • Must submit proof of eligibility of:
      • Payroll processor records
      • Payroll tax filings
      • Form 1099-Misc
      • Income & expenses for sole proprietorship
      • If don’t have above, bank records to demonstrate qualifying payroll
  • Ineligibility:
    • You are engaged in illegal activity under federal, state or local law (no legal marijuana) 
    • Household employer of nannies / housekeepers
    • Owner of 20% or more is incarcerated, on probation / parole, subject to indictment, criminal information, arraignment, or convicted of felony in last 5 years
    • Delinquent / defaults on SBA loan within last 7 years
  • Misuse Penalties:
    • Knowingly using loan for unauthorized purposes is fraud
    • False statements on application is up to 5 year imprisonment / up to $250K fine + up to 2 years imprisonment / up to $5K fine + up to 30 years imprisonment / up to $1MM fine
  • Lenders Fees Paid from SBA:
    • 5% of loans up to $350K
    • 3% of loans over $350K & less than $2MM
    • 1% of loans at least $2MM  
  • Agent Fees Paid by Lender from its Fees:
    • 1% of loans up to $350K
    • 0.5% of loans over $350K & less than $2MM
    • 0.25% of loans at least $2MM
·        Questions should be made to Lender Relations Specialist at the local SBA Field Office 




Saturday, March 28, 2020

Evictions Stopped Under Coronavirus Stimulus - CARES Act

The Coronavirus Aid, Relief, and Economic Security or “CARES” Act was enacted into law on March 27, 2020. In addition to the relief enumerated in two of our recent articles (Nuts & Bolts of Stimulus Package - House Passes 2 Trillion Dollar Stimulus Package and Forbearance and Foreclosure Moratorium in Coronavirus Stimulus), the CARES Act also provides relief to residential tenants.

Under the CARES Act, from March 27, 2020 to July 25, 2020, landlords of 1- to 4-family and multifamily (5 or more) properties with FHA, Fannie Mae, or Freddie Mac mortgage loans may NOT:
  • Initiate a legal action to recover possession based on nonpayment of rent or other fees or charges;
  • Charge fees, penalties or other charges related to the nonpayment of rent;
  • Require the tenant to vacate with less than 30-days’ notice; and
  • Issue the 30-day notice to vacate until after July 25, 2020.
In addition, landlords who obtain a forbearance on their multifamily mortgage due to a financial hardship caused by the COVID-19 outbreak are prohibited from doing the above before their forbearance period expires.

Forbearance and Foreclosure Freeze in Coronavirus Stimulus

On March 27, 2020, the historic stimulus package known as the Coronavirus Aid, Relief, and Economic Security or “CARES” Act was enacted into law.

In addition to the relief enumerated in our recent blog (Nuts & Bolts of Stimulus Package - House Passes 2 Trillion Dollar Stimulus Package), the CARES Act also includes mortgage relief in the form of forbearance periods and foreclosure moratoriums for federally backed mortgages on 1-4 family homes and multifamily (5 or more) homes.

Which mortgages are covered?
  • Federally backed mortgage loans secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) for 1- to 4-families and for on multifamily residential real property (5 or more dwelling units) are covered, these include loans:
  • insured by the Federal Housing Administration;
  • insured under section 255 of the National Housing Act;
  • guaranteed under section 184 or 184A of the Housing and Community Development Act of 1992;
  • guaranteed or insured by the Department of Veterans Affairs;
  • guaranteed or insured by the Department of Agriculture;
  • made by the Department of Agriculture; or
  • purchased or securitized by the Federal Home Loan Mortgage Corporation (Freddie Mac) or Federal National Mortgage Association (Fannie Mae).


What relief is available? 
For 1-4 family properties:
  • Forbearance period of 180 days, which may be extended for an additional 180 days, upon the borrower’s request;
  • No late fees, interest, or penalties during the forbearance period beyond those scheduled or calculated as if borrower is current on the mortgage; and
  • Foreclosure moratorium – servicers are prohibited from moving for a foreclosure judgment or order of sale, or execute a foreclosure-related eviction from March 18, 2020 to May 17, 2020;
For multifamily properties
  • Forbearance period of 30 days, which may be extended for up to 2 additional 30-day periods, upon the borrower’s request. Note that the forbearance is only applicable to multifamily mortgage loans that were current on payments as of February 1, 2020. Also, tenants may not be evicted nor issued a notice to vacate for nonpayment or late payment of rent during the forbearance period.
  • Foreclosure moratorium: servicers are prohibited from moving for a foreclosure judgment or order of sale, or execute a foreclosure-related eviction from March 18, 2020 to May 17, 2020. 


What is the process for requesting a forbearance?
  • For 1-4 family properties: Requests for a forbearance may be made by submitting a borrower’s attestation to a financial hardship caused by the COVID-19 emergency. No other documentation is required for the initial 180-day forbearance to be granted.
  • For multifamily properties: Requests for a forbearance may be submitted to the servicer orally or in writing, through an affirmation that the multifamily borrower is experiencing a financial hardship during the COVID-19 emergency.

Friday, March 27, 2020

Podcast | NY Court System is Archaic | Modernization Needed ASAP

Attention Governor Cuomo the court system needs your leadership. We need e-signature protocols, e-notarization rules, servers, virtual meetings, and so much more. It’s time to modernize the legal industry and revamp the economy for both the state and businesses alike. As a true leader, you can transform the Coronavirus shutdown from a negative into a blue ocean opportunity for New York State.

Listen to our podcast here 


Thursday, March 26, 2020

Podcast | Creative Lease Workout Options

Latest Podcast - Sharing creative lease solutions for commercial landlords and tenants who have lost revenue from coronavirus.

Click here to listen to podcast


Wednesday, March 25, 2020

Podcast | Foreclosure Avoidance Through Forbearance Negotiations

Businesses devastated by quarantine should proactively negotiate forbearances with their lenders to avoid foreclosure and monetary judgments.

Click here to listen to the Podcast


NYS 90-Day Mortgage Relief Plan – DFS Regulation Issued

On March 24, 2020, the details of NYS’ COVID-19 mortgage help came to light.

Specifically, the New York State Department of Financial Services promulgated 3 NYCRR 119 in response to Governor Cuomo’s Executive Order 202.9.

Here is a Q&A about the details

What is the COVID-19 Relief Program?
The COVID-19 Relief Program requires DFS regulated institutions to make applications for a 90-day forbearance of any payment due on a residential mortgage of New York Property to individuals residing in New York and who demonstrates financial hardship as a result of the COVID-19 pandemic.

How long is the Program effective?
The Program shall be in effect until June 19, 2020, but may be extended if necessary.

Are mortgage payments waived under the Program?
The Program does not expressly require institutions to waive mortgage payments.

When can a borrower apply for the Program?
On or before April 3, 2020, regulated institutions are required to e-mail, publish on their website, mass mail, or broadly communicate to customers how to apply for COVID-19 relief and provide their contact information.

Which institutions are covered under the Program?
DFS-regulated institutions are covered under the Program. They are New York regulated banking organizations covered by the New York Banking Law and all New York regulated mortgage servicers regulated by DFS. This means that the program does not cover National Association lenders (federally charted banks). The Program does not apply to mortgage loans made, insured, or securitized by the United States, Government Sponsored Enterprise, Federal Home Loan Bank, and lenders, issuers, servicers or trustees of such loans, as well as, servicers for the Government National Mortgage Associations.

Does the Program cover commercial loans?
The Program does not apply to any commercial mortgage or other loans not described in 3 NYCRR 119.

Aside from a 90-day forbearance, is there additional relief available under the Program?
From today until June 19, 2020, or until extended, lenders will provide the following relief to individuals who experience financial hardship from COVID-19:
  • Waive fees for use of automated teller machines (ATMs);
  • Waive overdraft fees; and
  • Waive credit card late payment fees.
Institutions are not limited to offering the above types of relief and are encouraged to take additional reasonable and prudent actions to COVID-19 affected individuals.

Who is qualified to receive COVID-19 relief?
Regulated institutions must develop their own clear, easy to understand, and reasonably tailored criteria for assessing qualified individuals. The qualifications and process for applying for relief should be published by institutions on or before April 3, 2020.

How are applications processed under the Program?
Regulated institutions are required to develop and implement procedures for expedited processing where they must process and respond to requests immediately and no later than 10 days of receipt of all information reasonably required to process the application. All determinations must be communicated to the applicant in writing and must explain the reasons if the application was denied and a statement that the applicant may file a complaint with DFS if he believes the application was wrongly denied.

Is the Program ready to launch?
More clarity concerning the Program is expected once regulated institutions have published their process for applying for relief. Individuals who are seeking mortgage assistance as a result of the COVID-19 pandemic are encouraged retain counsel as soon as possible to negotiate with their mortgage lenders or servicers. Don’t assume you qualify and get all terms in writing before you stop making mortgage payments.



Tuesday, March 24, 2020

What Happens When You Ignore the Essential Services Executive Order

Beyond injuring others and being a terrible person, have you looked-up the exposure for violating Executive Order 202.8.

To remind you, 202.8 is what provides, in pertinent part, that "[e]ach employer shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m."

As to exposure for violating 202.8, it provides that "[a]ny business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law." Then, section 12 of the Public Health Law provides for "a civil penalty of not to exceed two thousand dollars for every such violation" for the first violation and a penalty "not to exceed five thousand dollars for a subsequent violation." However, if your violation "results in serious physical harm to any patient or patients, the penalty is "not to exceed ten thousand dollars."

So, if you infect someone, you are getting charged with a $10K penalty per violation.

Oh, by the way, the State can also get an injunction against your continued violations and potentially shut down your business, remote or otherwise, with that injunction.

Don't be crazy and ignore the order. Instead, if you believe you are essential, apply for a designation here.






Coronavirus in Your Multi-Family / Commercial Building

If you learn that someone is infected with Coronavirus in a unit, do not notify other tenants or conduct cleaning.

Instead, contact your local (County / City) and follow their guidance. Do nothing else.

You are ill-equipped to create a protocol and may further injure your tenants by acting imprudently.

There are privacy concerns, cleanliness concerns, isolation concerns, testing concerns and the like.

Therefore, if you learn of a positive diagnosis in your property, contact your local health department and follow their guidance.


Monday, March 23, 2020

Governor Cuomo Issues Statewide Moratorium on Commercial and Residential Evictions and Foreclosures

Governor Cuomo has consolidated the patchwork of local foreclosure and eviction laws bubbling up in the wake of the COVID-19 quarantines - and it's a big one.

There shall be no enforcement of either an an eviction of any tenant, residential or commercial, or a foreclosure of any residential or commercial property for a period of ninety days. 

Ninety days from the date of the Order puts us out to June 18, 2020.

One noteworthy aspect of this Order is its application to both residential and commercial properties. 

It is vital to note, however, that this does not mean you cannot be in default of your rent or mortgage for the ninety day period. It simply states that there shall be no enforcement of evictions or foreclosures. If you are delinquent on your rent or mortgage during the term of this order, your landlord or lender could commence an eviction or foreclosure proceeding after the order expires. 

The interplay of this Executive Order with Executive Order 202.9 (see our prior blog about that, here) creates an opportunity for borrowers to leverage a forbearance with their lender ensuring that they are not delinquent on their mortgage on June 18, 2020. 


Monday, November 19, 2018

Why Employers Should NOT Use NYS Sexual Harassment Sample Videos & Policies

Many employers are saying that they will write sexual harassment policies and conduct the mandatory trainings themselves, but they will quickly find that doing it themselves is a big mistake. Without an in-house employment attorney, internal compliance department and/or a comprehensive training program, employers will face the following internal training issues:
  • Employers must comply with Labor Law 201-g (NYS) and Local Law 96 (NYC).
  • New employees must be trained as soon as possible in NYS. NYC requires training within 90 days. So, employers that want to have an annual training for their team must consider multiple trainings when they hire new staff. 
  • Employers that plan to use the sample training videos that NYS released will learn that they simply do not comply with the laws. 
In fact the NYS website clearly states:

the videos alone are NOT considered interactive. If you are using this video to meet the training requirements, you must also: ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; or require feedback from employees about the training and the materials presented.

Employers that plan to use the sample sexual harassment policy released from New York State are making a big mistake. 

Here are 3 reasons why the NYS sample policy is just not enough:

1. It does not address every other protected class under which an employer can be sued for discrimination (e.g., race, religion, color, national origin, sex [including pregnancy], military status, age, marital status, sexual orientation, gender expression or identity, genetic information, disability or any other personal characteristics considered to be a protected class under applicable federal, state or local laws)
Updating the policy matters because when sued for discrimination by a different protected class, you will be able to explain that everyone is protected in the workplace.

2. It does not list potential remedial measures (e.g., termination, suspension, probation, demotion, reassignment, etc.).

Updating the policy matters because employees who do not know the consequences are unlikely to care about changing behavior and, more importantly, without clear expectations an employer can be sued for arbitrarily applying their policy in a discriminatory manner.

3. It does not cause an employee to agree to its terms and to acknowledge written receipt of the policy and complaint form, which is required by law.

Updating the policy matters because without records you have nothing when faced with a Department of Labor audit or a prospective lawsuit. More so, you can justify termination for cause when an employee violates your policy, which they affirmatively agreed to follow.

Moreover, there are ramifications for employers who do not have their employees take the training (i.e., it's a misdemeanor and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit). With risk avoidance being the key to these new laws, a sexual harassment vendor should offer the following:
  1. A system to track that employees took the training in anticipation of a Department of Labor audit;
  2. A system to track that the sexual harassment policy and complaint form were distributed in writing and agreed to be followed (i.e., clickwrap) by the employee - distribution of these documents is also required;
  3. A branded policy and training, with both addressing all types of discrimination, beyond just sexual harassment, because the employer may face a discrimination suit on a different protected class and wouldn't want to have to explain to a jury why they only cared about sex discrimination, not the applicable protected class (e.g., race, marital status, disability, etc.); and
  4. Most importantly, a digital on-demand product because the training needs to be instantly available to new employees 

Lieb Compliance offer employers a web-based, on-demand interactive video training platform. While we understand that there are many vendors who train on sexual harassment, most of them don't offer online trainings in compliance with both Labor Law 201-g and Local Law 96. Further, most don't offer to digitally distribute a branded company policy and a tailored complaint form, which are both required under laws. Still further, our competitors rarely offer an opportunity for employers to require that their employees affirmatively agree to be bound by their policy through a digital clickwrap receipt. Please understand that our system goes above and beyond to make compliance easy. We include security checkpoints, randomized quiz questions, note-taking, and the ability for employees to ask questions of the instructor. We even offer monthly user reports so employers can monitor their team's compliance.  

Many "lawyers" teach, but being licensed isn't enough, being dynamic is everything when presenting emotion-ridden topics to employees. Our courses are led by Andrew Lieb, Esq., who founded Lieb Compliance and is our Chief Compliance Officer. Andrew is a prolific author and has trained tens of thousands of employees and independent contractors nationally on compliance topics. He's taught on the college level (human sexuality), he's taught corporate compliance and he even operates a New York State licensed school. Simply stated, he's our secret sauce. 

We encourage you to learn more about our Sexual Harassment Prevention Trainings and Services.



NEW LAW: New York City Independent Contractors Must Receive Sexual Harassment Training

All independent contractors in Manhattan, Queens, Brooklyn, Staten Island and the Bronx must receive sexual harassment training if there are more than fifteen (15) employees / independent contractors.

The NYC Commission on Human Rights recently released guidance on the "Stop Sexual Harassment Act" which requires employers to provide sexual harassment training to its employees on an annual basis.  

The guidance clarifies that the law requires all employers with fifteen (15) or more employees (which includes independent contractors) to provide training to all independent contractors who have performed work for the employer for more than 90 days or 80 hours in a calendar year. All employers who have more than 15 employees/independent contractors must ensure they are compliant with the new law which takes effect on April 1, 2019.

Employers should visit - sexualharassmenttrainingny.com to get your employees and independent contractors trained today.