Employers who are seeking to purchase sexual harassment prevention training and policies in compliance with the new New York State and New York City sexual harassment laws must be mindful that some vendors are offering trainings that are not compliant with the new laws.

The New York State law (Section 201-g of the N.Y. Labor Law), which took effect on October 9, 2018, requires that all employers issue a sexual harassment prevention policy that meet minimum requirements including but not limited to establishing a procedure, specifically tailored to each individual employer, for timely investigation of all complaints and issuing a complaint form. 

Therefore - if a company is claiming they can offer a uniform training for any employee to take - be mindful that employers must have a sexual harassment prevention policy and complaint form that specifically shows the employee how to make a complaint and whom to make a complaint to and the information must be including in the training. In the NYS model training, it states: "The training should detail any internal process employees are encouraged to use to complain and include the contact information for the specific name(s) and office(s) with which employees alleging harassment should file their complaints."

The NYS law also requires annual training for all employees (and training for new employees within a reasonable time after hiring). The training must be interactive and must include; 1) an explanation of sexual harassment consistent with guidance issued by the Department of Labor; 2) examples of conduct that constitute unlawful harassment; 3) information regarding the specific state and federal statutory provision concerning sexual harassment and the remedies available to victims of sexual harassment; 4) information regarding employees' rights of redress and remedies available to victims; 5) information regarding conduct responsibilities of supervisors.

The New York City law (Local Law 96), effective April 1, 2019, requires employers with fifteen (15) or more employees to conduct annual training which must be interactive and must include, among other requirements, the employer's specific process for addressing sexual harassment complaints, information concerning bystander intervention and the specific responsibilities of managers and supervisors to address complaints of harassment. In addition, the NYC law requires that employers obtained signed acknowledgment from employees that they attended the training.

While not required, policies and trainings should also address other forms of harassment and discrimination (i.e. race and age), to minimize exposure to potential lawsuits against the employer.

It is imperative that employers choose a vendor who is offering trainings and policies in strict compliance to these new laws to avoid unnecessary penalties and exposure to lawsuits.

Lieb Compliance offers a fully compliant training package including a compliant sexual harassment prevention policy, complaint form and interactive training.

Now that 2019 is here it is important to be aware of the changes in the law for our industry. This is not a list about the best events from 2018, but, instead, a list that highlights the new legal landscape that you face as real estate attorneys in 2019. Being familiar with these laws, cases and rules may help you to better address your client’s goals and to make you money while helping you to avoid malpractice.

As we begin 2019, it is important to reflect on the major legal developments in the field of labor and employment law from 2018 with an eye towards how these developments may change the legal landscape in 2019 and beyond. Attorneys should be aware of these laws and opinions in order to assist clients in ensuring compliance.

Buying and selling real estate is both fun and frustrating. The process seems simple but takes forever. The terminology sounds familiar but is misunderstood. All too often buyers and sellers feel hoodwinked by a shyster, but that is far from what is occurring. The truth is that real estate closings are really complicated and that is why the State of New York makes it a felony for anyone other than an attorney to prepare an instrument affecting real estate for direct or indirect compensation. 

Andrew Lieb, Esq. shares the steps in a real estate transaction. Click here to read the full article in Dan's Papers. 

On February 13, 2019, the NYS legislature took testimony to examine proposals to strengthen NYS's sexual harassment laws, which are already the toughest in the Country.

The testimony is available for viewing here.

Employers - remember October 9, 2019 is your deadline to train all of your employees on sexual harassment pursuant to the requirements of Labor Law 201-g. Failure to train is a misdemeanor with many adverse consequences.

Comply with your requirements today at sexualharassmenttrainingny.com.

In the era of #MeToo, NYS' mandatory sexual harassment trainings (labor law 201-g), NYC's mandatory sexual harassment trainings (local law 96) and CA's expanded training requirement requirement (SB 1343), Facebook has gotten into the game.

This week, Facebook Advertisers are being required to certify that they "[h]ave reviewed and will abide by our Advertising Policies and all applicable laws" and "[w]ill not use Facebook Advertising for any wrongfully discriminatory practices." It is noted that Facebook's list of protected classes does not cover all classes protected by employment / housing discrimination laws and Facebook acknowledges this fact by stating "[s]ince non-discrimination laws vary by region, be sure to comply with our policy and relevant laws in your location and the location you're targeting."

Of note, Facebook is likely causing advertisers to agree in an attempt to insulate the platform from suit for hosting a hostile environment. However, agreeing to the policy certainly doesn't insulate the advertiser from suit.

So, be warned, your advertisements are being watched by Plaintiffs' counsel and you will be sued if you discriminate in any fashion. As such, targeting demographics is off limits and you should sell your product's / position's benefit and target user's prior preferences / searches, not specific users by their demographics (e.g., "race, ethnicity, national origin, religion, age, sex, sexual orientation, gender identity, family/marital status, disability or medical or genetic condition") and how those demographics are correlated to predicted desires.

Buyers can pay cash at closing and reap the benefits of obtaining a loan on the property by purchasing a 90-day post-closing loan.

This can be helpful for buyers who want to make competitive cash offers, close quickly and subsequently obtain mortgage interest deduction benefits of the loan according to the IRS, Publication 936.

Read the full article by Andrew Lieb, Esq. published in The Suffolk Lawyer here. 

Because of the Restrict Information Regarding Salary and Earnings (RISE), Suffolk County Human Rights Law now prohibits employers from asking job applicants about their salary history. The new law is effective on June 30th, 2019.

Read the full article by Mordy Yankovich, Esq. at the Suffolk Lawyer here.

Learn what happens when NY Employers do not provide sexual harassment prevention trainings and policies to their employees. Every NYS employer must provide their employees with both an annual sexual harassment prevention training and policy pursuant to Labor Law section 201-g. It is a misdemeanor for Employers to violate the Labor Law and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit. Employment Experts Andrew Lieb, Esq. and Mordy Yankovich, Esq. share your risks.

There are two different laws applicable to real estate salespersons and associate real estate brokers in New York City, which require sexual harassment prevention trainings. There is the New York State law and the New York City law. 

Read the full article by Andrew Lieb, Esq. published in the New York Real Estate Journal here. 

Introducing our new HR YOUTUBE channel - answering tough questions faced by employers so you don't have to. Stay tuned for more!

View Episode One: Employment Attorneys Andrew Lieb and Mordy Yankovich share tips for Employers about how to handle an initial sexual harassment complaint stemming from an office holiday party. Learn to 1) obtain a statement; 2) with a witness; 3) using a complaint form; 4) to evaluate whether a formal investigation is necessary; and 5) to always have a sexual harassment policy at your workplace.

New York State homeowners and real estate professionals should be aware that starting April 1, 2019, smoke detectors must either be hardwired or be sealed and have a 10-year irreplaceable battery life.

New York General Business Law Section 399-ccc prohibits the sale, distribution or importation of any “solely battery operated smoke detecting alarm device powered by a replaceable, removable battery not capable of powering such device for a minimum of ten years.” In addition to the requirement that the solely battery operated smoke detector have a minimum battery life of ten (10) years, its product packaging must also state the manufacturer’s name or registered trademark and model number of the device.

The above requirements do not apply to battery operated smoke detectors already “ordered by, or are in the inventory of, owners, managing agents, contractors, wholesalers or retailers” on or before April 1, 2019. However, if these non-compliant smoke detectors are replaced after April 1, 2019, such replacement must comply with Section 399-ccc’s requirements.

NYS Department of State adopted a rule amending 19 NYCRR 1219 and adding 19 NYCRR 1229 to require newly constructed buildings and buildings undergoing a substantial renovation to include diaper changing stations if buildings have publicly accessible toilets.

Effective January 1, 2019, such buildings must meet requirements which include having at least one diaper changing station accessible to any gender available on each floor level with a public restroom. The new rules also address requirements as to accessibility, construction, installation, maintenance and signage of the diaper changing tables.

Failure to comply may result in criminal sanctions pursuant to Executive Law §382(2).

For more details, read the full text of the 19 NYCRR 1219 and 19 NYCRR 1229.

On January 15, 2019, the Appellate Division, First Department, reversed the Supreme Court in New York State Land Title Associations, Inc. v. The New York State Department of Financial Services (page 69).

To remind the reader, the New York County Supreme Court had previously annulled the Insurance Regulation which regulated title closer fees, ancillary charges, premiums and most importantly, soliciting business.

Now, the annulment is reversed (as if it never happened), except with respect to section 228.5(a)(1)-(3) [ancillary search fees] and (d)(1)-(2) [closer fees].

So, no more sports tickets, golf outings, holiday parties, open houses, and wining and dining to solicit title insurance business.

Now, to the entertaining part. What about all of the ancillary fees that were being charged by title insurance companies, above the regulatory caps, in between the annulment date and the reversal date? If a decision is reversed was it ever annulled? If it was never annulled were the caps on ancillary fees always applicable and were consumers overcharged. These are tough questions that Department of Financial Services should answer soon. Stay tuned and perhaps we will be hearing from the Court of Appeals to put finality to the legality of Insurance Regulation 208.

On January 18, 2019, the IRS issued the safe harbor for rental real estate to be treated as a trade or business for purposes of IRC 199A's Qualified Business Income 20% deduction.

Real etate professionals, who operate "a rental real estate enterprise... [which is] an interest in real property held for the production of rents and may consist of an interest in multiple properties," should study the safe harbor closely as it can make a huge difference in your pocketbook. Interestingly, while multiple properties may qualify as the same enterprise, "[c]ommercial and residential real estate may not be part of the same enterprise."

According to the IRS, the safe harbor requires:

(A) Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise;
(B) For taxable years beginning prior to January 1, 2023, 250 or more hours of rental services are performed (as described in this revenue procedure) per year with respect to the rental enterprise. For taxable years beginning after December 31, 2022, in any three of the five consecutive taxable
years that end with the taxable year (or in each year for an enterprise held for less than five years), 250 or more hours of rental services are performed (as described in this revenue procedure) per year with respect to the rental real estate enterprise; and
(C) The taxpayer maintains contemporaneous records, including time reports, logs, or similar documents, regarding the following: (i) hours of all services performed; (ii) description of all services performed; (iii) dates on which such services were performed; and (iv) who performed the services. Such records are to be made available for inspection at the request of the IRS. The contemporaneous records requirement will not apply to taxable years beginning prior to January 1, 2019

To claim the safe harbor, "include a statement attached to the return on which it claims the section 199A deduction or passes through section 199A information that the requirements in Section 3.03 of this revenue procedure have been satisfied."

Some employers want to know if they can chose to take the penalty and forego the NY required sexual harassment prevention training, policy and complaint form. Here is a cost benefit analysis explanation that you should read before making such a terrible decision.

The trial will be painful for the employer to say the least. 

The New York Real Estate Journal featured Andrew Lieb, Esq. in the Year in Review 2018.

Click here to learn about the best decision that Andrew Lieb made in 2018. 

Game-changing developments are expected to occur in 2019 with respect to therapy dogs (i.e., service dogs and emotional support dogs) and real estate professionals must monitor these developments as they occur to stay on top of their game and avoid facing a lawsuit.

As some background, on April 18, 2018, Governor Cuomo signed S7319 into law. This statute charged "the commissioner of agriculture and markets shall convene a working group to examine the need for statewide standards for therapy dogs." Then, in October 2018, the working group published "A Report from the New York State Therapy Dog Working Group".

The Report is clear to note that "[therapy dogs are not defined in other laws under the Americans With Disabilities Act, Federal Housing Authority, NYS Human Rights Law, or New York City Human Rights Law" and that the current definition found at Article 7 of the Agriculture and Markets Law should be expanded to include "private homes" to its current definition of "any dog that is trained to aid the emotional and physical health of patients in hospitals, nursing homes, retirement homes and other settings and is actually used for such purpose, or any dog during the period such dog is being trained or bred for such purpose, and does not qualify under federal or state law or regulations as a service dog." As such, the definition would be relevant to suit under the New York State Human Rights Law (i.e., discrimination in housing) - Real Estate Brokers, Property Managers and Landlords take notice.

The Report calls for "standards regarding training, evaluation, certification, and identification of therapy dogs... especially in relation to service dogs and emotional support dogs." It is expected that further statutes will follow to enact the recommendations of the Report. It's important for real estate professionals to monitor these statutes as they go from bill to law rather than to learn about their rules from receiving a Summons and Complaint. Remember, the best real estate professionals are on the cutting-edge on changes to the law. Leveraging those changes makes you money. 

In a decision dated Nov. 6, 2018, the United States Supreme Court broadened the scope of the Age Discrimination in Employment Act of 1967 (ADEA) to cover state and local governments regardless of number of employees. Public employers must now be advised that they may be liable under the ADEA, regardless of number of employees, and face additional exposure for claims of age discrimination.

Read the full article by Mordy Yankovich, Esq. published in The Suffolk Lawyer here. 

The dichotomy between a litigation and a transactional practice is stark. Simply, transactional counsel needs to adhere to the game of hot potato — don’t get stuck as the recipient of a notice when the music stops. Instead, counsel must assert a preservation right whenever counsel receives a notice that asserts contrary rights by the other party. Then, counsel should consult with litigation counsel to collaborate on how to best achieve the client’s goal through a hybrid of leveraging litigation and negotiating terms.

Click here to read the full article published in The Suffolk Lawyer. 

A lawsuit is not what you see on TV. On TV, a lawsuit is won by an attorney marching into court with a grand display of showmanship and a cunning tongue. The TV judge hearing the case makes a spot decision and it’s all over and decided before the final commercial break. In reality, a civil litigation takes years and is much more of a chess match than a swordfight. As opposed to this courtroom drama, a real case is typically decided on paper submissions that may be heard months after they are first provided to the court. Additionally, the decision is often made on a technical procedural rule, not on the merits or substance of the litigation.

You see, being right isn’t everything in real litigation. Instead, a real lawsuit is all about knowing how to play the game. The following is a summary of the stages of a litigation, but this chess match isn’t linear and each of the stages can appear out of order and can even reoccur again and again. So, civil litigants need a skilled advocate who is a master of the game if they want a shot at victory. Here is your game board:

• Must love technology and use it always, must be comfortable in a paperless office with cloud based systems

• Demonstrated proficiency in legal writing and oral advocacy;

• Dedicated, organized and detail-orientated;

• Ability to leverage substance rather than emotion;

• Experience drafting contracts.

Practice Areas:

Every NYS employer must provide their employees with both an annual sexual harassment prevention training and policy pursuant to Labor Law section 201-g. It is a misdemeanor for Employers to violate the Labor Law and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit.

Lieb at Law, P.C. seeks digitally savvy, detail oriented and motivated paralegal. The firm services the New York Metro area, inclusive of the Hamptons and Manhattan and represents sellers, buyers and lenders in residential and commercial real estate closings. 

The firm is a paperless office with a focus on technology and substance. Must be friendly, charismatic and organized. We will grow your career and teach you how to reach the next level.

• Drafting and reviewing contracts of sale
• Ordering and clearing title
• Coordinating with brokers, surveyors, expeditors, lenders and other client-vendors
• Managing client needs
• Coordinating closings
• Maintaining files as always up-to-date through use of case management technology
• New business intake – opening and closing files and tracking / closing potential cases
• Preparing closing statements
• Answering telephones, distributing mail and deliveries, announcing visitors, maintaining office appearance, watering plants, making coffee, and generally helping throughout entire law firm
• Managing closing department calendar

• Must love technology and use it always
• Need to love sales – be charismatic / friendly / hungry
• Required to be self-sufficient and take pride in your work-product
• Success requires a detail-oriented / organized / multi-tasker
• Proficient in Microsoft Word, Excel, and Google Calendar
• Active presence on Social Media
• Minimum of typing 60+ words per minute
• Minimum Associates Degree from accredited college. Bachelor’s Degree preferred
• Cannot be a practicing real estate salesperson / associate broker due to conflicts

According to the NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, "a “no pets” policy in a lease, should be clear about the availability of and the process for seeking and granting an exception or modification to the policy as a reasonable accommodation."

As should be discerned, using a form lease is very dangerous and landlords need to understand that a properly drafted tailored lease is about exposure mitigation more than anything else.

This is not a politically charged article, but a functional article predicting the future. As a result of the November 6, 2018 elections, New York State no longer has a deadlocked Senate and many bills will now pass.

In 2018, the Democrats gained control of 40 seats and the Republicans gained control of 23 seats in the Senate giving them a majority from the prior 32 / 31 Republican control. Also, the Assembly remains democratic, as it has historically been since 1975. After the elections, the Assembly was 104 / 43 Democratic control.

With both New York State Senate and Assembly being dominated by Democrats, it is expected that more bills will be passed. The New York State Legislature is now less likely to be at an impasse on voting on the passage of bills. As such, stay tuned for updates on proposed bills and their passage, especially those related to real estate and employment law.

1. The Standard: Remind employees that the sexual harassment standard is subjective and it’s about whether conduct is unwelcomed, not whether the target of the conduct acquiesced to the conduct. Furthermore, employees need to be reminded of the breadth of what can constitute harassment. Beyond the traditional understanding of unwelcomed touching, even “harmless” small talk can be actionable if it’s sexist, sexual, homophobic, gender-stereotypical, and the like.
2. Policy Effectiveness: Employees need to know that regardless of the location where the party is held and irrespective if the party occurs after working hours, the Company’s sexual harassment and anti-discrimination policies remain in full force and effect. Incident to the policy being in effect, employees should receive a copy of the policy and be reminded of the adverse work consequences that can result if an employee is a perpetrator of harassment.
3. See Something / Say Something: Most importantly, employees should be empowered to be the solution to eliminate sexual harassment. This can be accomplished by reminding employees of the simple rule of if you see something, say something, which when implemented can effectively stop unwelcomed conduct before it crosses the line and becomes harassment.
4. Providing the Complaint Form: While avoiding harassment is the first goal, providing victims with resources must be a close number two. To accomplish this, HR should provide all employees with a copy of the complaint form and remind employees of the procedure undertaken when a complaint is received. By providing an avenue for employees to be heard and harassment to be addressed, employers can often avoid a lawsuit and at the least, have a good defense if the employee nonetheless sues.
5. False Complaints: While the act of setting forth the potential remedial measures faced by a harasser is a great dissuader of improper conduct, improper complaints should also be addressed by HR. However, HR must address false complaints with precision because everyone must be empowered to make legitimate complaints and not feel that they will be retaliated against. Remember, retaliation, which would reasonably discourage a worker from making or supporting a sexual harassment claim, is disallowed conduct. As such, HR should remind the team that an improper complaint is not one where harassment has not occurred, but, instead, where the complaint was made as a sword against a co-worker as opposed to a shield to protect against harassment. That being said, false complaints are a real thing and they must be avoided in order to root out harassment and make everyone safe at the workplace. As such, HR should suggest that employees avoid one-on-ones if they are afraid of improper complaints. By having a co-worker around, the employee will have a witness to corroborate their version of what transpired. Also, HR should remind everyone that a false complaint can result in criminal harassment charges under the Penal Law and/or a civil defamation lawsuit between co-employees. So, complaints are only to be made if they are brought in good faith.

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.

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:

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. 

Ironically, NYS has released videos to comply with the NYS required sexual harassment training under Labor Law 201-g. However, the website for the videos expressly advises that they are non-compliant.

In fact the website 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.

To comply with the NYS law, easily, effectively and efficiently, just go to sexualharassmenttrainingny.com

Sexualharassmenttrainingny.com has interactive videos in full compliance with the Labor Law and also offers sexual harassment policies, complaint forms and record keeping making you 100% in compliance with the law.

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

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.  

Of particular importance to real estate brokers, 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 brokers who have more than 15 employees/independent contractors must ensure they are compliant with the new law which takes effect on April 1, 2019.

Brokers should visit - sexualharassmenttrainingny.com - to get your agents trained today.