LIEB BLOG

Legal Analysts

Thursday, September 03, 2020

CDC's Moratorium - Required Declaration for Effectiveness - As Promised on the LiebCast

State of         ______________    )
                                                     ) ss:
County of     ______________    )

______________, being duly sworn, deposes and says the following: 

I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the foregoing are true and correct:

 I have used best efforts to obtain all available government assistance for rent or housing;
 I either expect to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
 I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;
 I am using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
 If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options.
 I understand that I must still pay rent or make a housing payment, and comply with other obligations that I may have under my tenancy, lease agreement, or similar contract. I further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected.
 I further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to State and local laws.

I understand that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment. 
_________________________________ 
Signature of Declarant                                 


Sworn to before me this 
____ day of ___________, 2020

_________________________________ 
Notary Public



Wednesday, September 02, 2020

CDC's Residential Eviction Moratorium - Fines up to $500,000 and Jail - You Better Read This

CDC's eviction moratorium has teeth and the details matter. 

CDC issued an Agency Order, under the Public Health Service Act, to temporarily halt residential evictions to prevent the further spread of COVID-19 through December 31, 2020. 

The Order applies to residential tenants (not transient or "seasonal tenant[s]") who have provided an executed and sworn copy of the Declaration form, set forth in Attachment A of the Agency Order, to their landlord. 

Such Declaration swears that:
  1. The individual has used best efforts to obtain all available government assistance for rent or housing;
  2. The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
  3. the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
  4. the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and 
  5. eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
Landlords and tenants alike better get this right as DOJ can bring actions against violators and "a person violating this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law." If the violator is an organization, the fines are $200,000 and $500,000, respectively. 

This does NOT mean that landlords DON'T have rights.

It is expressly noted that "[t]his Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract." Nor does the order preclude "the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis..." As we just wrote in Dan's Papers - Sue the Tenant for a Judgment

Finally, it is noted that the Order does not prevent evictions "for reasons other than not paying rent or making a housing payment" nor does it preclude "foreclosure on a home mortgage."

As an aside, the CDC is justifying this Order by pointing to the "over 174,000 deaths due to the disease" and comparing it "to the peak mortality observed during the 1918 H1N1 influenza pandemic," while asserting that "eviction moratoria-like quarantine, isolation, and social distancing-can be an effective public health measure utilized to prevent the spread of communicable disease." Perhaps we should stop downplaying this pandemic - it is real per Trump's Federal Agency. 



Tuesday, September 01, 2020

Legally Speaking: Rentals, Rights, Reality...What's a Landlord to do?

Wednesday, August 26, 2020

Wage & Hour Litigation is Coming from Remote Workers

The US Department of Labor's Wage and Hour Division recently issued "guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers" that is a must read by employers / HR professionals. 

We addressed this issue on the Lieb Cast on 8/2/2020's segment 3 at the 9 minute mark well before the guidance was ever issued as this advice was a no brainer for a quality employment attorney like Mordy Yankovich

We advise you now that Fair Labor Standards Act lawsuits are coming. 

Are you prepared? 

To get prepared, you need to immediately establish "a reasonable process for an employee to report uncompensated work time."  




Tuesday, August 25, 2020

Discrimination: Disabled's Right to Reasonable Accommodation to Eliminate Possible Exposure to COVID in the Workplace

A must read for all employers, both public and private, is the US Equal Employment Opportunity Commission's publication "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws."

In plain English, if you have an employee with a pre-existing disability that either "puts her at greater risk during this pandemic" or, if such disability will be "exacerbated by the pandemic," and such employee requests a reasonable accommodation, then, you better either grant that request or engage in the "interactive process" to avoid getting sued.  

Be warned - the lawsuits are coming.