3 Workplace Discrimination Laws on Governor Hochul's Desk

On 3/15/2022, 3 important workplace discrimination laws made their way to the NYS Governor's Desk to be signed and enacted. 

A7101 - Prohibits the release of personnel records as a retaliatory action against employees who complain or assist in proceedings involving unlawful discriminatory practices by employers.

A2483B - Includes the state and all public employers as employers subject to the provisions of the human rights law; includes executive, legislative and judicial employers.

A2035B - Establishes a toll free confidential hotline for complainants of workplace sexual harassment to be administered by the division of human rights; makes related provisions.

Are you ready? 

As an update, all 3 were signed into law on 3/16/2022.

Caregiver Discrimination Law Passes Senate

On March 8, 2022, S5063 was passed by the NYS Senate. It's now with the Assembly. 

The law would prohibit employers from discriminating against individuals based on such individual's status as a caregiver. 

This law will fill an important protection for employees who typically argue familial status discrimination or sex discrimination in such circumstances, but both categories really are like fitting a square peg in a round hole. 

As the Bill's Justification explains, "18 percent of adults in the United States have caregiving responsibilities" and these people need access to reasonable accommodations in limited circumstances, such as supervising "the diagnosis, care, or treatment of mental or physical illness, injury, or health condition of the care recipient." 

In NYC, caregiver status is already protected. So, if you work there, you already have rights. 

Ethics for RE Broker Attorneys - New Opinion

According to the NYS Bar Association, in Ethics Opinion 1237, "A lawyer may not accept the referral of real estate closings from a real estate agent who is associated with a real estate company owned by the lawyer where the real estate agent and the real estate company will split the brokerage commission earned on the real estate transaction, regardless of whether the attorney agrees to waive in favor of the real estate clients the portion of the real estate commission due to his real estate agency."

So, a broker / lawyer cannot take referrals of closings from an agent who works at that lawyer's / broker's real estate brokerage. It does not matter if the lawyer "waived any brokerage commission" he would otherwise receive in favor of his client. 

The reason is that his agent will nonetheless receive a commission split and that constitutes the payment for referrals. 

The takeaway is that an attorney should choose to do closings or work in brokerage, not both.

Workplace Sexual Harassment Hotline about to be Established by NYS Division of Human Rights

On March 7, 2022, the NYS Senate joined the Assembly to pass a bill (now going to the Governor to be enacted), which establishes a hotline for complainants of workplace sexual harassment. 

The Bill's Justification explains that "[n]early 75% of all sexual harassment goes unreported," and it envisions that this toll-free hotline, available, "at minimum, Monday to Friday from 9 a.m. to 5 p.m.," which will "connect complainants with experienced pro-bono attorneys who will help make them aware of their legal rights and advise them on the specifics of their individualized cases," will result in more reported claims. 

The issue with this STUPID Bill is two-fold:

1. Who needs a toll-free line in 2022? Aren't we past the time when telephone companies charge per second of use? Don't most people utilize VoIP or cell phones? What decade is the NYS Government operating in? Have they heard of the world wide web? 
2. Why are they referring to pro-bono (free) attorneys on a type of case where the plaintiff can recover their attorneys' fees from the plaintiff, by statute, and almost no plaintiffs pay their attorneys hourly fees? Sounds like a lipservice law to us, no?

Oh, to discourage attorneys from participating in this pro-bono stupid law, it also states that "Attorneys may not solicit, or permit employees or agents of the attorneys to solicit on the attorney's behalf, further representation of any individuals they advise through the hotline relating to discussed sexual harassment complaint." 

Once signed, this law will take effect on the 120th day thereafter and we doubt it will do a single thing to benefit victims because right now, any victim of workplace sexual harassment can and should already contact any attorney that they know of for a free consultation and if a claim is brought, the plaintiff can sue for the defendant to pay their attorneys' fees, as a matter of law.

 

Sexual Harassment & Assault Claims can be Brought by victims as Class Actions in Court

Victims of sexual harassment and sexual assault can now proceed in a class action, with other victims, and can also litigate their case in court, individually or collectively, regardless of having previously executed an arbitration agreement. 

This is really important because powerful companies have traditionally forced their employees and independent contractors to sign predispute joint-action waivers, which prevent victims from bringing joint, class, or collective actions against those companies for sexual harassment and sexual assault. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 invalidated such waivers. Now, victims can work collectively and take on powerful companies in court in the same way that a union equalizes employee bargaining power at the proverbial negotiating table.

The Act also invalidates mandatory arbitration agreements, which heavily favor companies who regularly pay the same arbitrators, know their rules, have relationships, and win a vast majority of the time.

To learn more about this new law, here is an audio recording of my appearance on The Jay Oliver Show explaining the importance of the law right after it was passed by the Senate. To be clear, the recording misstates the law's effectiveness to past claims. The law only applies to claims that "arise[] or accrue[] on or after the date of enactment," which was March 2, 2022. 

 

New Statute Defines RE Brokerage CE Course on Cultural Competency, BUT... Discrimination?

On December 22, 2022, we told you about a new real estate continuing education course requirement on cultural competency and explained that we sought guidance from the Bill Sponsor, James Gaughran, on what was envisioned to be taught under this topic. 

Now, there is a new law that defined cultural competency as "understanding cultural norms, preferences and challenges within our diverse communities."

However, here is the million dollar question - How does this understanding translate into practice where a real estate broker / salesperson cannot change their practice based on their understanding of such cultural norms, preferences and challenges because if they do, they will have engaged in actionable real estate discrimination? 

Anyone?