Implicit Bias Discrimination Trainings in the Face of EO 13950 Restriction

Anti-discrimination trainings start with learning that we all have implicit biases. However, President Trump had blocked training this topic by Executive Order in many different situations. Well, the federal courts took none of that and have permitted implicit bias trainings again. Andrew Lieb provides an update in the Suffolk Lawyer, Law Journal.

Read the full published article HERE.

Construction GCs Should Videotape Their Worksites to Avoid Lawsuits

Typically, when a construction worker gets injured on the job from an elevated fall, it's a slam dunk case against the GC. 

In fact, Labor Law § 240(1) imposes strict or absolute liability on general contractors, owners, and their agents regardless if the injured worker is partially at fault for falls at construction sites. 

The only real defense for the GC is that the injured worker was the sole proximate cause of the accident (called the, "recalcitrant worker" defense). But, how do you prove sole cause when everyone claims different facts? 

We just learned the answer in an appellate division case, Cordova v 653 Eleventh Ave. LLC.

The case was dismissed because "Surveillance footage of plaintiff falling from the ladder demonstrates that" it was solely the injured worker's fault. The ladder didn't move or shake, it was connected to the sidewalk bridge and scaffolding above and tied to the scaffold too. 

Moving forward, GCs should video your construction sites. It can save you a fortune. 

Employees in the NYC Fast Food Industry Will No Longer be Considered "At-Will"

The NYC Council enacted two bills which effectively ended "at will" employment for employees in the New York City fast food industry. Mordy Yankovich, Esq. shares the updates to the law in the February issue of the Law Journal, The Suffolk Lawyer.

Click HERE for the link to the article.

Court Rules that Ryan Serhant is a Salesman Trying to Sell Real Estate

The Southern District of New York reminded purchasers of real estate in Coppelson v. Serhant that real estate agents are, in fact, trying to sell real estate so they can earn a commission and will make statements to buyers intended to accomplish that goal. 

The plaintiffs, purchasers of an investment property in Manhattan, complained that Ryan Serhant misrepresented that the property would be worth over $5M in a short period of time and that that it was priced 20% lower than comparable properties. The court, in dismissing the case, reminded buyers that they can, and must, perform their own due diligence because sellers of real estate will always talk up how great their property is and because "few sellers will state that the property is priced at an unfavorable level and that it will decrease in value or has no real investment potential." This conclusion is obvious - brokers will engage in puffery to sell real estate and earn a commission, and the courts won't protect your naivete. Whether that is good for business or good for building relationships of trust is another question for another day. 

Another important takeaway from this case is the reminder that a broker's failure to follow the requirements of RPL §443 (e.g. improperly filling out an agency disclosure form) is not the basis for a lawsuit. This is something I encounter nearly every day - buyers discovering something unpleasant about their property after they close and then suing the broker for not telling them about it and for not disclosing that they represented the seller too ("the broker didn't tell me about the oil leak in the basement because they wanted their commission!"). Often there is not actually a dual agency relationship because it is perfectly fine for a broker to only represent the seller with the buyer remaining unrepresented, but many buyers believe the listing broker they met at the open house or showing represents their interests too (hence the intended purpose of the RPL §443 agency disclosure requirement). Regardless, the sole remedy for agency disclosure violations is regulatory action by the Department of State, not a lawsuit.

All of this begs the question, is the current state of regulatory enforcement sufficient to protect consumers from what they perceive as wrongful salesmanship and flat-out incorrect agency disclosures? If not, what would you change? 

Atheists & Agnostics are Protected from Discrimination at Work per EEOC

The EEOC just released its Compliance Manual on Religious Discrimination and lack of religious faith is protected from discrimination at the workplace.

You hear that? Atheists & agnostics - you matter too!

Here is what the manual states:

Definition of Religion

Comment: Some commenters expressed concern that the draft did not make sufficiently clear that Title VII protects against discrimination based on a lack of religious faith.

Response: The Commission has made additions to reference repeatedly that discrimination based on a lack of religious faith is prohibited.

NYS Senate Report on Fair Housing - Changes Coming to RE Brokerage - Get Ready NOW

A 97 page report was just issued by the NYS Senate on persistent racial and ethnicity-related housing discrimination and this report is going to change the real estate brokerage industry in NYS forever. 

Are you ready? 

According to the report, housing discrimination has changed over the last hundred years from being overt to subvert. However, housing discrimination clearly still exists and something has to be done about it now. 

Would it surprise you to learn that in 2019 there were 28,880 reported complaints of housing discrimination in the USA? Again, twenty-eight thousand complaints!!!

Did you know that the precursor to the National Association of Realtors (NAR) required its members to discriminate as follows:

A Realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality or individuals whose presence will clearly be detrimental to property values in that neighborhood. 

While this overt discrimination is less prevalent today, the report explains that: 

Today, bad actors often use subtler forms of discrimination; they direct homebuyers of different apparent backgrounds toward different communities, impose more stringent financial requirements on people of color, and provide unequal services to clients based upon their race or ethnicity.

[S]ome real estate agents utilize subtle ways to discriminate, like racially coded guidance and disparate treatment in services offered.

In acknowledging that real estate brokers and agents are the gatekeepers for neighborhoods, the report makes the following categories of recommendations:

1. Develop a NYS Fair Housing Strategy
2. More Proactive Enforcement of Fair Housing Laws (i.e., testing, more funding, & data collection)
3. Licensing & Renewal Training Requirements (i.e., more training from better instructors for licensing & continuing education with a focus on implicit bias trainings)
4. Increased Penalties & Broader Accountability (i.e., $2K fines increased from $1K & managers responsible like brokers with increased experience requirements to qualify)
5. Standardized Broker Policies with Public (i.e., prospect identification, exclusive broker agreement requirements, & pre-approval for mortgages)
6. Internal Brokerage Policies (i.e., brokerages need updated policy manuals with fair housing statements & explanations of the consequences for violations)
7. State & Local Governments to Affirmatively Further Fair Housing (i.e., enforcement is everyone's responsibility) 
8. Brokers Must Open Offices in Communities of Color (i.e., 12 firms control 50% of listings, but only about 20% to 33% of the listings in minority communities)
9. More Diverse Brokerage Workforce (i.e., NAR's members are 80% white; need Diversity, Equity, & Inclusion initiatives to attract talent to the industry) 

The report also suggests, that brokers fund these recommendations by charging between $10 & $30 for license renewal to the 130,578 real estate brokerage licensees in NYS.

Are you ready yet? 

There are eleven new pieces of legislation supported in this report and because our state has a one-party controlled government, they are likely going to pass quickly.

Brokers, Salespersons, and other industry participants, like landlords, property managers, and attorneys need to get ahead of this now and make proactive changes to their practices today. The alternative is defending the next wave of enforcement initiatives. 

In reminding everyone of this salient fact, the report quoted Supreme Court Justice Thurgood Marshall in saying:

There is very little truth in the old refrain that one cannot legislate equality. Laws not only provide concrete benefits, they can even change the hearts of men some men, anyhow for good or evil.

It's time to change from being part of the problem to being part of the solution. Are you ready?