As a result of a recent United States Supreme Court decision, employers can no longer use the Computer Fraud and Abuse Act of 1986 ("CFAA") as a tool to prevent unauthorized use of its computer systems. 

The CFAA makes it illegal to "access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter."

In Van Buren v. United States, No. 19-783, the Supreme Court held that a police officer did not violate the CFAA when he ran an unauthorized license plate search in exchange for money. Relying on the language of the statute, the Court reasoned that the CFAA makes it illegal to access information an individual is not permitted to obtain, but does not prohibit improper use of information or databases which an individual has the authority to access. 

Justice Barrett used the following example to clarify the Court's holding: If an individual is authorized to access a specific folder on a computer, he/she does not violate the CFAA if he/she accesses the folder for an unauthorized purpose. However, if an individual accesses a separate folder on the computer to which he/she does not have authorized access, such conduct violates the CFAA.

In light of the Supreme Court's decision, employers should consider the following to protect against improper/unauthorized use of its computers/databases:

1) Strengthening policies regarding unauthorized use of computers/databases. While unauthorized use is no longer unlawful under the CFAA, employers are free to implement restrictive policies regarding unauthorized use of computers and discipline employees who violate the policies. 

2) Taking further steps (e.g. secure passwords) to safeguard documents/information to which employers do not want employees to access.

3) Entering into confidentiality/unauthorized use agreements with employees.

A law that passed the House in May and is before the Senate (The Comprehensive Debt Collection Improvement Act or “CDCIA”) could force lenders to slam the breaks on issuing mortgages to co-op purchasers.

This law reverses a 2019 decision from the US Supreme Court, Obduskey V. McCarthy, and would cause the Fair Debt Collection Practices Act (FDCPA) to apply to businesses engaged in non-judicial foreclosures, which applies to co-op mortgage loans.

In other words, the CDCIA would hamstring co-op lenders' ability to utilize third-parties to collect their loans (e.g., the law limits the number of times a debtor may be reached, it requires that contact be ceased when the debtor so requests, it creates tons of exposure to damages and attorneys' fees, etc.). It would also suppress important information from a credit report, such as forbidding credit scoring models from using medical debt as a negative factor.

As you can certainly deduce, if the CDCIA passes the Senate and is signed by the President, lenders will likely have stricter qualification terms and may even raise rates on co-op mortgage loans that qualify.

Are the protections in the CDCIA worth the law's chilling effect on co-op loans? Should the Senate change the law? Should it just vote it down?

Do you think the CDCIA will lead to fewer co-op transactions?

To provide further incentive for people to get vaccinated, The New York State Department of Labor recently issued guidance permitting employees to use paid sick leave to recover from side effects of the COVID-19 vaccine. The New York State legislature previously passed a law entitling employees to paid leave to receive vaccinations.

New York State law requires employers with five or more employees (or net income of more than $1 million dollars) to provide 40 hours of annual paid sick leave to its employees. New York Labor Law Sec. 196-b permits employees to use sick leave "for mental or physical illness, injury, or health condition, regardless of whether it had been diagnosed or requires medical care at the time of the request for leave." 

The DOL clarified that Section 196-b requires employers to "honor the employee's desire to use accrued sick leave for recovery of any side effects of the COVID-19 vaccination." 

According to today's White House Press Release, "President Biden issued a memorandum directing the U.S. Department of Housing and Urban Development (HUD) to address discrimination in our housing market." 

In doing so, the President has charged the Secretary of HUD to lead an "interagency initiative to address inequity in home appraisals" while citing to a study that found "homes in majority-Black neighborhoods are often valued at tens of thousands of dollars less than comparable homes in similar—but majority-White—communities."

Next week, HUD is publishing a new disparate impact discrimination rule in the federal register to address neutral housing policies that have a discriminatory impact on marginalized groups. 

Are you part of the problem or part of the solution? 

In a recent case of interest, Elco v. Aguiar (Supreme Court, Suffolk County), a town public safety dispatcher asserted that she was discriminated against by the town in her job when the town injected itself into her child custody dispute with another town police department employee. She alleged discrimination because of her gender/sex, disability, & familial status while also alleging that she was subject to a hostile work environment. 

Governor Cuomo signed Bill 2681-B into law today, imposing extensive requirements on employers to mitigate exposure to "airborne infectious diseases" in the workplace. 

Establishing a Prevention Plan. The new law requires all employers to establish an airborne infectious disease exposure prevention plan by May 19, 2021. The plan must detail procedures for employee health screenings, regular cleaning and disinfecting of the workplace, personal protective equipment ("PPE"), accessible workplace hygiene stations and adequate break times to use the stations as well as other onerous requirements. The plan must be part of the employer's employee handbook and displayed in a prominent location in the workplace. While the law requires the Department of Health to prepare a model policy, there is no timetable for the arrival of the policy compelling employers to prepare their own policies prior to May 19, 2021. 

Forming Safety Committees. Employers must permit employees to form public safety committees and provide them with paid time to hold meetings and attend trainings. This provision of the law takes effect in 180 days.

Retaliation Prohibited. Retaliation is prohibited against employees exercising their rights under the new law. Notably, retaliation is prohibited against an employee who refuses to work based upon a reasonable belief that he/she is exposed to an unreasonable risk of contracting an airborne infectious disease in the workplace. 

Penalties. Employers may be penalized $50 a day for failure to adopt a prevention plan; $1,000 - $10,000 for failure to abide by the adopted plan; and $1,000 - $20,000 for a second violation within six (6) years. In addition, the law affords employees a private right of action to file a complaint in state court where he/she may be awarded damages including liquidated damages and reasonable attorneys fees.  

For more information on this new law, please listen to our podcast here. 

Do you think these requirements are reasonable for employers? Will this law cause more businesses to move out of New York State? 

On May 4, 2021, the New York State Senate and Assembly passed legislation (A.7175) that extends the eviction and foreclosure moratoriums on both residential and commercial properties from May 1, 2021 to August 31, 2021. The legislation is now on the Governor’s desk for signature. UPDATE: The Governor signed the legislation on May 5, 2021.

If signed, eviction and foreclosure proceedings shall be stayed until August 31, 2021 for tenants and foreclosure defendants who submit a hardship declaration pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act and the COVID-19 Emergency Protect Our Small Businesses Act.

Also passed is legislation which expands the COVID-19 Emergency Protect Our Small Businesses Act to small businesses with up to 100 employees, or up to 500 employees if the business was shut down by Executive Order or Health Department directives for at least 2 weeks between May 15, 2020 and May 1, 2021 (A.7127).

As a result, landlords should resort to bringing breach of contract lawsuits against non-paying tenants as explained by the federal courts in Elmsford Apartment Associates LLC v. Cuomo. Do you think suing for a money judgment could result in a settlement where your non-paying tenant surrenders & leaves your property? Should the legislature block this too?

Lieb at Law, P.C., is seeking an associate attorney to support the firms widely expanding litigation practice. Minimum of 2 years complex litigation experience required.

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The firm’s practice areas include:

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• Employment Litigation, Compliance and Trainings: Discrimination, Harassment, Retaliation, Wage and Hour, Restrictive Covenants, Family Medical Leave Act, Alternative Dispute Resolution, Appeals; Employee Handbooks and Policies, Sexual Harassment and Discrimination Training, Wage and Hour Audits & more.
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Sharing Andrew Lieb's article published in the New York Law Journal. Landlord Liability for Tenant-on-Tenant Discrimination: Split in the Federal Circuits. For anyone who doesn't subscribe a text version will be available on the Lieb at Law website.

Landlord Liability for Tenant-on-Tenant Discrimination