Breaking News - Workplace Anti-Discrimination Laws Updated in NYS

Attention Employers and HR!!!!

A08421 has passed both houses and is headed to the Governor to change discrimination laws in NYS forever.

The legislation does the following:

• Changes the severe or pervasive standard of harassment to a very low standard of more than petty slights or trivial inconveniences;

• Eliminates part of the Faragher/Ellerth affirmative defense to a lawsuit by making the fact that the employee did not make a complaint about the harassment to the employer not determinative as to liability;

• Extends protection for non-employees in the workplace to all protected classes;

• Allows courts to award attorney's fees on all claims of employment discrimination, and allow for punitive damages in employment discrimination cases against private employers;

• Provide that the Human Rights Law is to be construed liberally for remedial purposes, regardless of how federal laws have been construed;

• Prohibit mandatory arbitration clauses for discrimination claims;

• Prohibit non-disclosure agreements in any settlement for a claim of discrimination, unless it's the complainant's preference;

• Provide that any term or condition in a non-disclosure agreement is void if it prohibits the complainant from initiating or participating in an agency investigation or disclosing facts necessary to receive public benefits;

• Require that employees be notified that non-disclosure agreements in employment contracts cannot prevent them from talking to the police, the Equal Employment Opportunity Commission (EEOC), the State Division of Human Rights or a similar local entity, or a lawyer;

• Extend the authority of the Attorney General to prosecute certain civil and criminal cases of discrimination against all protected classes;

• Require the Department of Labor and the Division of Human Rights to evaluate the impact of the model sexual harassment prevention policy every four years and update the policy as needed;

• Require any term or condition in a non-disclosure agreement be provided in writing to all parties, in plain English and the primary language of the complainant;

• Require the commissioner of the Labor Department to prepare templates of the model policy in languages other than English;

• Require every employer to provide employees with their sexual harassment policy in English or their primary language when they are hired and during training; and

• Extend the statute of limitations to file a sexual harassment complaint with the Division of Human Rights from one year to three years.

Visit discriminationpreventiontraining.com to keep your company safe from discrimination claims while maintaining a safe workplace for all.

Are attorneys' fees still available to a residential landlord in an eviction proceeding?

On June 14, 2019, rental laws throughout the state were changed forever. We will be updating our network in the weeks ahead of those changes. In the interim, we pose the question - Are attorneys' fees still available to a residential landlord in an eviction proceeding?

Sometimes when lots of laws get changed all at once there emerge errors in draftsmanship, which create litigation events to clarify the meaning of the laws. When it comes to attorneys' fees for a landlord, a conflict has emerged in the language of the new laws.

On the one hand, new RPL §702 states: Rent in a residential dwelling. In a proceeding relating to a residential dwelling or housing accommodation, the term "rent" shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement.

On the other hand, amended RPL §234 states, in new language, that "[a] landlord may not recover attorneys' fees upon a default judgment." 

As such, RPL §234 implicitly recognizes the availability of attorneys' fee for a litigated summary proceeding. However, RPL §702 provides that no fees may be sought except for rent. Attorneys' fees are by their very nature a fee and hence the conflict. 

Ironically, the limitation on landlords' ability to recover attorneys' fees in a default judgment may be the basis that there ability to recover attorneys' fee in a litigated matter remains after the amended laws. However, only a Judge can decide this one and we will watch to see how the courts resolve the issue.

Loan Officer Compliance Trainings Needed for HMDA Data

Loan Officers (LOs) frequently have issues collecting and entering applicant information on their electronic systems, which results in a denial of the loan. These issues occur when customers don't want to provide the information. At all costs, LOs seek to avoid a loan denial. As a result, LOs often develop strategies to fudge information, as a workaround, so that they can close their loans. These workarounds are often spearheaded by management at structured LO meetings. The LOs and managers know that without fudging the data, their system will hard stop the file and kill their loans. This is a non-starter for one with a broker's mindset.

Lenders - the Consumer Financial Protection Burea (CFPB) recently gave a $1.75 million reminder as to why lenders cannot fudge the data and need a compliance plan, in place, to avoid their LOs and managers from fudging the data. This $1.75 million civil penalty occurred by way of settlement In the Matter of Freedom Mortgage Corporation case.

The Freedom Mortgage Corporation case concerned LOs fudging information required by HMDA and Regulation C where such LOs selected non-Hispanic white when consumers refused to provide their race, ethnicity, and sex.

Interestingly, a compliance plan would have avoided this civil penalty because the applicable regulation permits lenders to report that the applicant did not provide the information and the loan can close. Had there been a compliance plan in place, Freedom Mortgage Corporation would have $1.75 million more today. In fact, CFPB ordered the lender to "develop, implement, and maintain policies, procedures, and internal controls to ensure compliance with data collection, recording, and reporting requirements set forth in HMDA and Regulation C." Additionally, trainings were required by CFPB.

Lenders - you need a compliance company to create policies and train your LOs before you get hit with a case by CFPB.