On November 8, 2021, Governor Hochul signed Bill A430 into law, which amends Section 52-c to the Civil Rights Law, and starting on May 7, 2022, employers with a place of business in New York who monitor or otherwise tap telephone calls, e-mails, or internet access of an employee by any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must also post the notice of electronic monitoring in a visible place which is readily available for viewing by its employees.

Any employer found to be in violation of this Bill will be subject to a maximum penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

On November 6, 2021, the 5th Circuit Court of Appeals stayed the OSHA Vaccine Emergency Temporary Standard (which we explained in this blog). However, the Circuit set a short briefing schedule and required the Government to respond to petitioners' motion for a permanent injunction by 5:00 PM on November 8th, which they did, and the petitioners to reply by 5:00 PM on November 9th, which they did. 

However, the stay seems to be a splashy headline about absolutely nothing. Specifically, the Emergency Temporary Standard's compliance date is not until January 4, 2022 and it impossible that the legality of the Emergency Temporary Standard is not determined before then. More so, as the Government points out, in great detail within their response, this case will be in Multidstrict Litigation "on or about November 16—21 days before the December 7 date that petitioners allege is the earliest date that any employee could be required to receive a vaccine and 51 days before petitioners’ employees would be required to start testing." Here, the 5th Circuit choosing to go it alone, is really strange. 

Regardless, the ultimate determination in this case will likely involve a ruling as to whether the United States Code (29 USC 655(c)), permitted OSHA to issue the vaccine Emergency Temporary Standard. The applicable Code section reads:

OSHA shall provide, without regard to the requirements

of chapter 5, title 5, United States Code [5 USCS §§ 500

et seq.], for an emergency temporary standard to take

immediate effect upon publication in the Federal Register

if he determines (A) that employees are exposed to grave

danger from exposure to substances or agents determined

to be toxic or physically harmful or from new hazards, and

(B) that such emergency standard is necessary to protect

employees from such danger.

Stated otherwise, the question before the Multidistrict Court is going to be whether OSHA has power to issue the Standard. To get to that answer, it is helpful to understand that a grave danger means one that causes "incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health," according to precedent. 

Now, to make matters even more interesting, even if OSHA loses on this Emergency Temporary Standard before the Multidistrict Court, it can nonetheless issue a vaccine requirement through traditional rulemaking so long as such a requirement is "'reasonably necessary or appropriate' to address a 'significant risk' of harm in the workplace." As you can see, we are just in the starting gate and this horse race hasn't yet even started. Stay tuned. 

The Occupational Safety and Health Administration ("OSHA") issued its long awaited emergency temporary standard requiring all private sector employers with 100 or more employees ("covered employers") to "develop, implement, and enforce a mandatory COVID-19 vaccination policy." OSHA issued separate rules for federal contractors/subcontractors and health care workers.

The OSHA rules require all covered employers to ensure their employees are vaccinated by January 4, 2022 or undergo weekly testing for COVID-19 and wear face coverings while at work (There is no testing option for health care workers).

Employers do not have to require employees to get vaccinated or be tested weekly if they: 1) report to a workplace where no other individuals are present; 2) work entirely from home; or 3) work exclusively outdoors. In addition, the rules provide for a reasonable accommodation for employees who have a disability or sincerely held religious belief (where there is no undue hardship to the employer).

The rules also require covered employers to do the following:

• obtain and preserve records of employee vaccination/testing which must be provided to employees, employee representatives and OSHA upon request;
• provide employees with up to four (4) hours of paid time off to receive their vaccine dose(s);
• provide reasonable time off and paid sick leave for employees to recover from side effects experienced from receiving the vaccine;
• require employees to notify the employer when they are diagnosed with COVID-19 and remove all employees who are positive from the workplace until they meet certain criteria;
• require all unvaccinated employees as of December 5, 2021 to wear masks (they must be vaccinated by January 4, 2022). 
• report all COVID-19 fatalities and hospitalizations to OSHA;

Aside from the vaccination/weekly testing requirements, all of the other rules take effect on December 5, 2021. Covered employers should, thus, immediately work with counsel to begin creating and implementing a policy in compliance with these new rules. Covered employers who fail to comply with these rules can face fines in the amount of $13,653 per violation or $136,532 per violation if the conduct is willful or repeated. 

On November 4, 2021, Governor Hochul signed Bill S1383 into law, which amends Section 759-a of the General Business Law. Beginning September 1, 2022, builders of one- or two-family homes with less than three stories will be required to provide a buyer with a cost estimate for the installation and maintenance of an automatic fire sprinkler system. The builder must also provide a copy of written materials prepared by the office of fire prevention and control which details the benefits of and includes factors that can affect the costs associated with the installation and maintenance of an automatic fire sprinkler. If the buyer requests the installation of the automatic fire sprinkler system, the builder shall install it at the buyer’s expense.

Fire Sprinkler systems are an effective device in the event of a fire and are not uncommon. Many structures such as commercial buildings and multi-family homes are required to install such devices in the State of New York. The justifications for this bill seem very convincing, and this bill will allow prospective homeowners who are planning new construction with a cost estimate for installation of a fire sprinkler system which could ultimately, save their house or even more importantly, their lives.

As of January 28, 2022, NYS insurers are prohibited from refusing to issue or renew, cancel, or charge or impose an increased premium for homeowners' insurance policies based on the breed of a dog owned.

Nonetheless, Insurance Law 3421 now provides an exception where insurance can be modified if a breed or mixture of breeds is designated as a dangerous dog pursuant to Agriculture and Markets Law 123, which requires such designations to be made by sound underwriting and actuarial principles, rather than fear alone. 

Governor Hochul signed this legislation, S4254, on October 30, 2021. 

Wow, as of October 22, NYS is now permitting felons to serve as Executors of Estates by way of A2573A. 

Previously, a Petition for Probate required an Affirmation as to whether the applicant has been convicted of a felony and if they had, they'd be denied Letters Testamentary (appointment as the estate fiduciary). 

According to the Bill's Justification, the purpose of this new law is to respect the decision of the decedent. Specifically, the Justification states:

In most instances the court respects the choices made by the creator of the document and appoints the nominated parties. It is detrimental to grieving families when an individual is prohibited from acting as an executor due to his or her conviction after paying their debt to society.

That being said, this new law is not without any restrictions whatsoever. Specifically, the law enables the Court to nonetheless declare a felon ineligible if their "crime may be adverse to the welfare of the estate, including but not limited to, crimes such as embezzlement or any crime where there was a misappropriation of money or a breach of fiduciary duty."

Before the US Supreme Court on Monday, November 1, 2021, is Texas's abortion law, which seems to be about stopping abortions by changing the standard from viability, as is the current law under Roe v. Wade, to 6 weeks into pregnancy, but it's about so much more and you should really care. 

The law deputizes Texans to police their neighbors in a way that should ring out fears that we are transitioning into a dystopian society like a real-world Handmaid's Tale. 

Imagine for a second, if you can, that this law has nothing to do with abortions (regardless, if you are pro-life or pro-choice) and ask yourself, how do you feel about your neighbors receiving $10,000 for catching you speeding on the highway, or shoplifting, or putting an extension on your house without a permit. In Texas, if you catch someone violating the 6-week abortion rule, you can get paid $10,000. Crazy. 

Ironically, Texas's law has survived scrutiny under Roe v. Wade because of this unique enforcement scheme. In fact, the US Supreme Court previously denied an application for injunctive relief, on September 1, 2021, by explaining that there was no "private-citizen respondent before us [who had] intention to enforce the law" [they sued the government rather than a citizen enforcing the law to get $10,000] and therefore, the Court ruled that there was a procedural hurdle preventing it from making "any conclusion about the constitutionality of Texas's law" when it comes to abortions. 

Now, on November 1, 2021, the Court will hear arguments as to whether the "United States [may] bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit SB. 8 from being enforced." If they can stop a judge from granting the $10,000, they stop the law. 

A proposed bill (A2382), awaiting Gov. Hochul's signature, seeks to amend the civil practice rules in NY (CPLR) & Judiciary Law concerning predatory debt collection practices & consumer credit actions. 

Specifically, the Bill provides the following: 

• Cut the statute of limitations on consumer credit transactions in half (i.e., from 6 years to 3 years);
• Require all consumer credit action pleadings to include additional information (i.e., name of original creditor, last 4 digits of account number on most statement, date & amount of last payment, etc.);
• Allow defendants to raise improper service as a defense (i.e., unwaivable); 
• Require an additional notice of a pending consumer credit action be mailed to a defendant by clerk of the court; &
• Require additional steps for entry of default judgment against a debtor (i.e., affidavit by original creditor of facts related to debt/default in payment, affidavit of sale for every subsequent assignment of sale of debt to a third-party, affidavit of a witness of the plaintiff, including chain of title of debt, etc.). 

The Equal Employment Opportunity Commission ("EEOC") recently released new guidance on religious exemptions to COVID-19 vaccine mandates. The new guidance provides clarifications regarding employers' and employees' obligations, including the following:

• In requesting a religious accommodation, an employee must specify that there is a conflict between the vaccine requirement and their sincerely held religious beliefs.
• If an employer has an objective basis to question either the "religious nature or the sincerity of a particular belief," the employer can seek additional supporting information from the employee regarding their religious beliefs.
• Objections to COVID-19 vaccinations based on social, political or personal preferences do not qualify as sincerely held religious beliefs.
• In assessing whether it can deny an accommodation request based on an undue hardship, an employer should consider factors such as whether the employee: works outdoors or indoors, works in a group setting, has close contact with other individuals, as well as the number of employees seeking a similar accommodation. 
• The employer can choose its preferred accommodation that would resolve the employee's conflict even if it is not the accommodation requested by the employee. 

Governor Hochul signed Bill A07373 into law yesterday which permits employees to petition their employer (in writing, within ten (10) days after a layoff, or in advance of a layoff) to implement a "Shared Work" program in lieu of a layoff. While employers are not required to implement a Shared Work program, employers must respond to the employees' petition in writing within seven (7) days and may not discriminate or retaliate against any employees who bring a petition.

The Shared Work program was formed to assist employers in avoiding layoffs and maintain trained workers during an economic downturn by allowing employees to receive partial unemployment benefits while working reduced hours. 

Be warned, the process just got a lot easier for a city / district court Judge to "order the removal of the building or an abatement of the condition" that is in violation of "any provision of the uniform code." 

Previously, there was a functional impediment when cities, towns, and villages sought to obtain such an order from the Court. While zoning violations were typically brought in city or district court, only a Supreme Court Justice had the authority to order the removal of the building or an abatement of the condition in violation. This obstructed enforcement of violations. 

Now, with A3028, having been signed into law on October 25, 2021, this is changed, and local courts, such as city and district courts, are empowered to render such an Order. 

Construction can be a nightmare, which can get even worse when your contractor doesn't have insurance to compensate you for their mistakes and damage. 

Based on A2202, which was signed into law by Governor Hochul on October 25, 2021, starting on April 23, 2022, contractors and subcontractors "shall disclose to the homeowner the existence of a property and/or casualty insurance policy that covers the scope of such contractor or subcontractor's employment should an insurance claim be filed resulting from losses arising from the work at such property. Such disclosure shall also include the contact information of the insurance company providing such property and/or casualty insurance, including a phone number and address."

While this is a move in the right direction, the damages for failure to comply are not enough to move the needle. It's expected that contractors will just ignore this law, as the cost of doing business, because the only damages available to a homeowner who doesn't receive information about the contractor's insurance is "a civil penalty not to exceed the greater of two hundred fifty dollars for each violation or five percent of the aggregate contract price specified in the home improvement contract; provided, however, that in no event shall the total penalty exceed twenty-five hundred dollars for each contract." 

Maybe, it's time to up the penalty too so that the government can make a meaningful impact in protecting homeowners who work with unscrupulous contractors? 

Have you ever wondered how the government assesses the value of your property for real estate tax purposes? 

Yes, there are 3 different types of appraisals, including comparable sales, income capitalization, and cost basis. However, each uses sales data of similar properties to develop a value. But, what is the legal definition of similar properties for purposes of a tax assessment? That has long been a hotly litigated. 

Now, starting on January 1, 2022, the answer will be that similar is defined as "properties located in proximate location to the subject property unless there is an inadequate number of appropriate sales or rentals within the same market." Plus, similarity refers to "age, condition, use or the sue at the time of sale, type of construction, location, design, physical features and economic characteristics including but not limited to similarities in occupancy and market rent." 

This new law, A894C, was signed into law by Governor Hochul on October 25, 2021. 

Effective January 26, 2022, A5144 will cause NYS private employees / independent contractors to have expanded whistleblower protection, under amended Labor Law 740, if they disclose or threaten to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer, that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety. 

This expanded protection is not only for employees, but also for former employees and independent contractors. With independent contractor protection, real estate brokers should be on the lookout for their agents lodging complaints to the Department of State, amongst other bodies. It's therefore time for every private business in NYS to button-up its compliance protocol and avoid whistleblowers because silencing them is no longer possible. Beyond tightening up their policy manuals, employers will be required to post signage about this new law at their places of employment.

This law is huge for employee / independent contractor rights and it's going to get messy quickly with lots of lawsuits to follow in the near term. Think about how many times an employer previously leverages its position to blackball a whistleblower from the industry. Now, actionable retaliation includes adversely impacting a whistleblower's future employment. 

This is huge, just watch the news and you will know how many whistleblowers are out there. Think about what's going on with Facebook. What about the Alec Baldwin shooting? Maybe, if New Mexico's law was as broad and protective as this new New York law, the Baldwin shooting / gun mishap wouldn't have happened. Yes, the film crew voiced complaints, but their position was limited. In New Mexico, an employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right concerning violations of occupational health and safety standards. N.M. Stat. Ann. § 50-9-25. However, there is no private right of action (besides common law) and only the possibility of reinstatement and back pay if the secretary of environment chooses to pursue a retaliation claim. In contrast, a New York employee is now protected if they "reasonably believes [the employer's wrong] poses a substantial and specific danger to the public health or safety" and that employee can sue in their own name within 2-years of the retaliation while seeking back pay, front pay, a civil penalty, punitive damages, and attorneys' fees. 

This law will launch a new era of compliance throughout New York industry. Is your business ready? 

Upon the legalization of cannabis in New York State, Section 201-D of the New York Labor Law ("Discrimination against the engagement in certain activities") was amended to prohibit employers from discriminating against employees for using cannabis outside of the workplace on their own time. 

The Department of Labor ("DOL") recently issued guidance (in the form of frequently asked questions) regarding certain elements of the law:

1. Employee Discipline: While employers may not discipline employees for using cannabis while off-duty and off-premises, employers may take action against employees who "manifest specific articulable symptoms of impairment" on the job. The DOL guidance defines "articulable symptoms of impairment" as "objectively observable indications that the employee's performance of the duties of the position are decreased or lessened." For example: operating heavy machinery in a reckless manner would likely qualify. The DOL further specified that the following are not, without more, "articulable symptoms of impairment": 
• positive test for cannabis;
• odor of cannabis; and/or
• other typical observable signs of cannabis use.
2. Use at Work: Employers may prohibit cannabis use and possession during all work hours which include breaks and meals periods, even if the employee leaves the worksite, and when an employee is "on-call."
3. Drug Testing: Employers may not test employees for cannabis outside of the following circumstances:
• It is required by state or federal law for a particular position;
• The employer would lose a federal contract or federal funding; or
• The employee manifests "specific articulable symptoms of impairment" (although an employer may not discipline an employee based solely on a positive test, as stated above).  

This question is on the ballot on November 2nd.

The answer seems simple, but with early voting starting in New York this Saturday, October 23rd, have you considered the implications of Proposal 2 of the statewide ballot, to make New Yorkers have a constitutional right to "clean air and water, and a healthful environment?"

In 1996, the highest court in New York, the Court of Appeals, explained that a constitutional right may provide for an "action for damages for violation... against a government or individual defendants." However, the Court did not say that all constitutional violations give way to a damages action, in that case, Brown v. State. So, it remains unclear if courts will permit private citizens to be awarded damages from polluters if Proposal 2 is passed in the statewide ballot. That being said, Senator Robert Jackson, who sponsored Proposal 2, believes that the amendment will give New Yorkers "the right to take legal action for a clean environment," per BallotPedia. 

Do you think that private citizens should be awarded damages for suing companies that damage our clean air, water and a healthful environment? Shouldn't the money go back to the State to fix the damage rather than into a private individual's pocket? 

Where is the line? 

Should truck drivers be sued if they don't switch to electric vehicles? 

How about private jet passengers? 

Shouldn't this be thought-out before we open the private lawsuit free-for-all? 

Attorney Andrew Lieb interviewed on PIX11 NY 10pm news on New Jersey vaccine mandate for school staff and state workers.

Starting on October 12, 2021, discrimination cases before the New York State Division of Human Rights (DHR) are no longer permitted to conclude with a private settlement. 

Instead, if settlement is achieved, DHR is now requiring "complainant’s attorney [] to state in writing why they are seeking a discontinuance and, if the reason is private settlement, the discontinuance will not be granted." Rather, "the matter [will be resolved] through an Order after stipulation that indicates the terms of the settlement or to proceed through the agency’s public hearing process." 

The purpose of this new rule, according to DHR, is "to ensure that the terms of any settlement comply with our basic standards and do not violate public policy."

Further, given that three-quarters of discrimination cases result in settlement, DHR will be able to collect better data of what is happening in resolving these disputes by monitoring settlements. Hopefully, DHR will actively compile this data and inform the public of their findings so that litigants can make smart, informed decisions, when settling cases into the future. 

On October 8, 2021, Governor Hochul signed S6492 into law and now the five eastern towns (East Hampton, Riverhead, Shelter Island, Southampton and Southold) are authorized to establish community housing funds to be funded by a supplemental real estate transfer tax.

Before any additional taxes are going to be levied, each town's board will need to enact a local law to that effect. 

Do you think that taxes should be raised on real estate sales to create affordable housing?

Before you answer that question, do you agree that the East End is unaffordable for much of its labor force?

The public purpose of this bill is "to establish a dedicated fund to provide needed housing opportunities" for "moderate income and working class local residents."

So, do you think your town should enact a local law, raise transfer taxes, and increase its supply of affordable housing? 

Attorney Andrew Lieb was featured as a guest on Black News Channel discussing the video showing a police officer dragging a paralyzed man out of his car.

Everywhere you look, the media is saying TX isn't permitting employer vaccine mandates, but that is NOT what is happening. To be clear, vaccine mandates are still permissible in TX. 

You can read Governor Abbott's Executive Order GA-40 here. 

As you can clearly see, all the Order prohibits are vaccine mandates that do not provide a mechanism for those who object to the "vaccination for any reason of personal conscience, based on religious belief, or for medical reasons, including prior recovery from COVID-19." 

This is almost entirely consistent with existing law and how, just about, every court case is shaking out with respect to vaccine mandates, with a few minor wrinkles that can't be ignored. The two wrinkles in the Order are:

1. Not utilizing the term "sincerely held" prior to "religious beliefs," which thereby seems to expand the standard in protecting religion, which doesn't appear legally problematic; and, 
2. Misstating the disability / handicap prong. 
• Under existing disability / handicap law, an accommodation is never available just because the existence of a disability / handicap renders the policy (i.e., vaccination) unnecessary, which appears to be the intention of the wording where it states, "including prior recovery from COVID-19." 
• Instead, under existing law, an accommodation is only available where a disability or handicap requires an accommodation for equality to exist. Stated otherwise, one needs a qualifying disability to receive an accommodation in the first instance, without it, there is nothing to accommodate. 
• To be clear, under existing law, having had recovered from COVID-19 is NOT a disability that is recognized. We wonder how this aspect of the Order will shake out and more so, how the Supremacy Clause will shake out if / when the Federal Government responds.  

Do you see the distinction? Does the distinction matter?

Lieb at Law, P.C., is seeking a complex litigation attorney to support the firm's widely expanding litigation practice. This role will work across plaintiff and defense litigation. Minimum of 1 year experience required. This position will work in the fields of employment, discrimination, commercial, and real estate litigation.

Desired qualifications:

• Drafting and analyzing pleadings, discovery, and motions;

• Resourcefulness in legal research;
• Must excel in a paperless office;
• Ability to leverage substance rather than emotion.

The firm’s practice areas include:

• Litigation: Employment Litigation, Discrimination Litigation, Commercial Litigation, Real Estate Litigation, Real Estate Brokerage Litigation, Title Litigation, Plaintiff Personal Injury, Landlord/Tenant, Estate Litigation and more.
• 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.
• Legal Compliance for Regulated Industries: Outside Compliance Counsel for regulated professions, Policy Drafting, Policy Implementation, Auditing, Corporate Compliance Trainings.
• Transactions:Commercial and Residential Real Estate Purchase and Lease Transactions, Business Transactions and Negotiations.

Qualifications:

Excellent critical thinking, writing, organization and research (Westlaw) skills. Must be technologically savvy.

10 reasons to work at Lieb at Law:

1. Growth – we are expanding and have tremendous opportunities for you to grow your career

2. Prestige – our attorneys are quoted in newspapers and interviewed on TV / radio; we provide opportunities to teach continuing education to brokers and attorneys

3. Fun – we have a ping-pong table, a BBQ committee, and staff that truly like each other

4. DEI – we don’t just have it internally, but focus our practice on employment and housing discrimination trainings and litigation so that we can help other business bring equity and inclusion into their realms as well

5. Technology – we leverage cloud-based / cutting-edge case management, task management, document generation, and more

6. Media – we have a PR team on retainer, host a weekly podcast, have our own studio, and we want you to be a part of that too

7. Business Differentiator – we own and operate a NYS licensed real estate school with over 10,000 students and countless courses on all fields of real estate law

8. Support – we own a licensed school so clearly, we know how to teach you; not only can we teach you, but we make learning easy because we operate with open doors in a collaborative environment and your success is our goal

9. Life Balance – work hours and billing requirements are reasonable and flexible so that you can have a life outside of the office

10. Respect – you are important, and we will treat you as an equal, not a subordinate

About Lieb at Law, P.C.:

Lieb at Law, P.C. offers legal services with a focus on litigation, discrimination, employment, and real estate. Additional practice areas include real estate brokerage, title disputes, contractual / commercial litigation, landlord / tenant, estate litigation, mortgage foreclosure, surrogate’s court litigation, plaintiff's personal injury / premises liability, land use / zoning, business and real estate transactions. Attorneys at Lieb at Law, P.C. are admitted to practice law in New York, New Jersey, Connecticut, and Colorado while also practicing in the Federal Courts.

The firm is a substance-first law firm where self-confidence, grit, and skill is celebrated and rewarded.

Staff have access to a cloud-based legal research platform so that the latest cases are available everywhere, including at home and in the courtroom. We have a secure, cloud-based case management system that catalogs every thought and action on each matter so that case facts are readily accessible at the stroke of a computer key. Finally, enterprise file sharing, storage, and collaboration software is leveraged to enable the efficient collaboration between attorneys where case strategy and document preparation is fresh and innovative.

We are media legal analysts who appear on TV / radio nationwide. We teach the law that we practice, in continuing education and corporate trainings, so we force ourselves to always stay on the cutting edge of new statutes, regulations, and cases. Lieb at Law is a modern law firm that is at the vanguard of the profession.

Common surfaces are cleaned frequently, masks required for anyone in the office that is unvaccinated. All staff is vaccinated.

TO APPLY EMAIL COVER LETTER AND RESUME TO CAREERS@LIEBATLAW.COM

 Workplace Accommodations and 

Vaccine Mandates

October 20, 2021

12:30 p.m. - 1:20 p.m.

Zoom Webinar

As mandatory COVID-19 vaccines become more prevalent, many employers are asking what they can do if workers refuse. Some employers are firing workers who won't take the vaccine and others are requiring unvaccinated employees to submit to weekly testing. Under federal, state and local law, employers must provide reasonable accommodations and many employees are asking if they can legally receive exemptions from vaccine mandates.  In this course you will learn:

• To articulate the elements of a failure-to-accommodate lawsuit

• To understand the extent that a sincerely held religious belief can be challenged internally by an employer, within the interactive process / cooperative dialogue, and before an administrative / judicial tribunal 
• To define an undue hardship, under both Title VII of the Civil Rights Act and NYS Human Rights Law

Faculty:

Andrew Lieb, Esq., Lieb at Law, P.C.

Register online:  https://scba.org/?pg=events&evAction=showDetail&eid=229742&evSubAction=listMonth&calmonth=202110

Back in 2017, the Tax Cuts and Jobs Act capped SALT deductions at $10,000. 

To remind you, SALT deductions permit "taxpayers to deduct from their taxable income all the money they paid in state and local income and property taxes." As a result, it saves residents in high tax states from having to pay a lot of money to the federal government because they already paid a lot of tax to their state. States like New York, Connecticut, New Jersey, and Maryland have really high state and local taxes and therefore, residents of these states were hurt the most when Congress capped SALT deduction at $10,000. 

To fight for their citizens and for their sovereignty, these four states sued the federal government "asserting that Congress's new cap on the SALT deduction either is unconstitutional on its face of unconstitutionally coerces them to abandon their preferred fiscal policies." 

Stated otherwise, the states argued "that the SALT deduction cap violates both Article I, Section 8 and the Tenth Amendment [and the Sixteenth Amendment] because it coerces them to lower taxes or cut spending."

The states lost in New York v. Yellen and the $10,000 cap remains. 

According to the Second Circuit, the states failed to demonstrate "how the 2017 cap on the deduction unconstitutionally undermines their state sovereign authority over fiscal matters or their ability to raise revenue." 

Yet, it seems pretty intuitive, no?

Do you think this should go to the Supreme Court? 

If not, will a Democratic Congress, led by a Senator from New York, act to reinstitute the full SALT Tax Deduction, which has been the law of the land since 1913 when the 16th Amendment was ratified and Congress first became empowered to "lay and collect taxes on incomes, from whatever source derived without apportionment among the several states"? 

There are 3 major topics that you should be on the watch for as the Supreme Court's term starts on the first Monday of October, and they all center around the conservative's 6-3 majority on the bench. With their majority, will the conservatives limit abortion, expand gun rights, and protect religion? 

Here is what you should know: 

Abortion: Every pundit out there is telling you that Roe v. Wade is in danger during this term because Mississippi's 15-week abortion law will be heard in the case of Dobbs v. Jackson Women’s Health, which will be argued on December 1st. 

You should know that Roe sets the state's right to restrict abortion at the point of viability, except if abortion is necessary, in appropriate medical judgement. However, hasn't the point of viability shrunk over the years from when Roe was decided in 1973. On the other hand, as Carliss Chatman wrote, in the Washington and Lee Law Review, "If a Fetus Is a Person, It Should Get Child Support, Due Process, and Citizenship," no? It seems that you need to go all in with whichever belief you have as anything short seems like you will be full of pure political conjecture - when do you think that a fetus is first a person?  

Guns: New York State (NYS) went after the National Rifle Association (NRA) in Bankruptcy Court earlier this year, and, now, it's the NRA's turn to come after NYS. The NRA is before the Supreme Court by backing the New York State Rifle & Pistol Association in New York State Rifle & Pistol Association v. Corlett. The case asserts that NYS' concealed carry license law, which requires "proper cause" to carry a firearm, is unconstitutional. The case will be argued on November 3rd. 

You should know that "proper cause" means that an individual must demonstrate a special need for self-protection as distinguishable from that of the general community in order to carry in the State. Do you think that this makes sense as a standard or should concealed carry just be blanketly permissible, as the Plaintiff's argue is their right under the Second Amendment? On the other hand, don't unsafe public spaces offend the First Amendment's protections of assembly, association, and speech? It seems like we have an Amendment standoff and wouldn't restrictions on guns in public spaces be appropriate to make public spaces safe for democratic participation, as argued by the New York Civil Liberties Union in the case? What say you on this tough one? 

Religion: Flags and religion have been the biggest thing for the Republican Party since the 2020 elections and they are coming together in Shurtleff v. Boston where Boston flew a LGBT rights flag, but not one with the cross at city hall. Now, the Christians want their cross over the City, but what about the separation of Church and State in the First Amendment? 

You should know that freedom of religion is protected in the First Amendment, but that LGBT rights are not. However, is religion free if the state picks one over another? On that note, do you remember the separation of Gay and State being in the Constitution, because I don't? 

What Really Matters: The public is often looking for something that doesn't exist. As Justice Alito explained in response to tremendous outrage by abortion groups at the Supreme Court refusing to stop the Texas abortion law, those allegations are "false and inflammatory... "[w]e did no such thing and we said that expressly in our order." Instead, the Court ruled on procedure and that was lost on everyone who just reads salacious headlines with the word abortion in the title. If you actually read the decision, it's not about abortion at all, but, actually about something much more decisive and terrifying. 

You should know that Chief Justice Roberts explained that the real question in the case was "whether a state can avoid responsibility for its laws" by "essentially delegat[ing] enforcement to...the populace at large." Stated otherwise, the law let private citizens sue whoever they found to have violated the law. Taking that to its logical conclusion, should we deputize neighbors to sue each other for violating our laws? Should we be able to get $5,000 if we go after a neighbor for speeding on the highway? What about $7,500 for littering? Maybe, $25,000 for dealing drugs? Is that the future that we want? You decide.

As you may recall, all federal contractors now have vaccination requirements because of Executive Order 14042, as discussed in our blog here.

The Order requires that all contracts between federal contractor and subcontractor contain a clause ensuring compliance. However, the specifics of that clause were unknown until September 24, 2021, when the Safer Federal Workforce Task Force (SFWTF) published guidance, which requires:

• Vaccinations of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accomodation; 
• Compliance by individuals, including covered contractor employees and visitors, with the  guidance related to masking and physical distancing while in covered contractor workplaces; and 
• Designation by covered contractors of a person(s) to coordinate COVID-19 workplace safety efforts. 

In their best written papers to date, NYC school employees argued to the Supreme Court that they need a stay of the October 1, 2021 deadline to get vaccinated. 

They argue that the vaccination order prevents them from lawfully pursuing their occupation, which is a fundamental Due Process right. They claim that their alternative options of private school teaching, adult or continuing education teaching, or private tutoring are not pursuing their occupations completely. Nonetheless, they fail to address whether taking "their certifications and seek[ing] employment in any other public school system... in the State," would be pursuing their occupations completely, as NYC had argued before the Second Circuit. 

Regardless, the issue of whether the employees can still pursue their profession is where the case is likely to be decided. In their opposition before the Second Circuit, the City had argued and emphasized that Due Process protection is only afforded if "a plaintiff is completely prohibited from engaging in his or her chosen profession." However, the school employees now argue that "a violation of one’s fundamental right to pursue an occupation exists and gives rise to a due process claim where there is less than a complete inability to practice one’s profession." Which one is it? Who is right? 

What do you think the law should be? 

The other argument advanced by the school employees is that the vaccination order should have given them an option to opt out of vaccination for weekly testing because school staff should be treated equally to firefighters and police officers who have that option. While this seems like a good argument in an initial read of the papers, the school employees' argument that firefighters and police officers present a greater risk to spread COVID because they have contact with the public as opposed to school children who have less severe COVID fails the smell test when it's considered that adults can be vaccinated and those under 12 years of age cannot. However, we will see. 

A proposed rule at 12 NYCRR 141 will increase basic hourly minimum wage for non-farm workers outside of New York City, Nassau, Suffolk and Westchester counties, from $12.50 to $13.20. 

This proposed rule is in compliance with the minimum wage requirements at Labor Law 652(6). 

Although 70 cents may not be considered impactful by many, those struggling to afford monthly expenses, especially during the ongoing COVID-19 pandemic, will certainly benefit from such an increase. 

To voice your support or opposition to this proposed rule, comments should be sent to Michael Paglialonga, NYS Dept.of Labor at regulations@labor.ny.gov by November 29, 2021. 

NYS Senator Alexis Weik Sponsored a bill that provides eligibility for unemployment insurance for "unemployment due to such employee's choice not to receive a coronavirus vaccine."

While this bill is nowhere near being enacted, do you agree with the Senator?

Is this bill perpetrating the spread of a deadly virus by empowering people to make stupid decisions that will lead to deaths or is it the right move to support liberty - my body my choice?

You decide - tell your NYS representatives if you support this bill or strongly oppose it!