If you are a NY Licensed Real Estate Salesperson, Broker, or Associate Broker - CE Requirements are changing in 2022. There are new topics required for license renewal.  Lieb School is in the final stages of getting the newest topic of Cultural Competency licensed and will update the course catalog in the next few weeks. We have all other topics available on our course catalog. 

What are the Continuing Education requirements for real estate agents in NY?

As of 7/1/2021. All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. NY Real Estate Brokers and Salespersons that were previously exempt from Continuing Education will no longer be exempt and will need to have completed the full CE requirements, including the new subjects prior to submitting a renewal on or after 7/1/2021. The 22.5 hours must include:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)

As of 4/20/2022: All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. The 22.5 hours must include the following topics:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)
• 2 hours on Cultural Competency

As of 6/19/2022: All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. The 22.5 hours must include the following topics:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)
• 2 hours on Implicit Bias Awareness and Understanding
• 2 hours on Cultural Competency

Since 2021, federal employees have been protected from workplace discrimination by the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, which added protections, notice, and reporting to the No FEAR Act.

To implement the Cummings Act, the Office of Personnel Management (OPM) published proposed rules on January 6, 2022, which are currently in the public comment period. 

These rules include:  

• Whistleblower and retaliation protections;
• Notice of findings of intentional acts of discrimination to be made on a publically accessible internet page;
• Agencies to submit annual reports to the Director of OPM;
• Agencies to submit disciplinary action reports to Equal Employment Opportunity Commission (EEOC);
• Agency employees found to have intentionally committed discriminatory acts, including retaliation, will have notations of the discriminatory acts added to the employee's personnel record;
• New public disclosure obligations; and
• Federal agencies to add new trainings for all employees about their rights and remedies under law.

Suffolk County renters: BEWARE! Those looking to rent in Suffolk County, New York should proceed with caution when searching for a rental home. 

In an effort to protect Suffolk County tenant/residents from rental fraud, the County Legislature has amended Local Law No. 30-2021. Rental fraud is committed when a person or entity leases a residential or commercial property to another, when that person or entity does not have an ownership interest in the property or authorization from the owner to lease the property. Properties that are vacant or foreclosed upon are typically the kinds of properties that are used for rental fraud. 

The law now states that "persons seeking to rent or lease real property MAY [emphasis added] demonstrate ... ownership interest or authorization to rent, lease or sublet real property." Ownership interest for real property can be demonstrated to a potential tenant via a fully signed and valid deed or a fully signed lease agreement. Similarly, a person can demonstrate they have authorization from the property owner to rent or lease the property by providing a potential tenant with proof of agency. 

The problem with this new law is that the Legislature does not actually require those looking to lease out their real property to prove that they are indeed the owner of the property. If the Legislature actually wants to protect potential tenants from rental fraud, they need to revise this law immediately and require that persons seeking to rent out real property provide proof of ownership or agency authorization incident to such rental.

Those who commit rental fraud and are caught will face penalties subject to a fine of up to $1,000.00 and/or up to six months imprisonment. Do you think the punishment fits the crime? 

In the meantime, potential tenants can and should take additional steps to protect themselves where the Legislature has fallen short. As rental fraud has become a hot topic in Suffolk, potential tenants should do their research, as well as request proof of ownership from those who are leasing properties. If a lessor refuses or cannot provide proof of ownership or agency authorization, it may be best to continue the house hunt.

Starting on April 30, 2022, the annual interest rate on money judgments arising out of consumer debt will be reduced from 9% to 2%.

The new law amends New York Civil Practice Laws and Rules §5004.

It's important to note that if the previous 9% interest rate applied to an ongoing judgment, the creditor has up to sixty (60) days from 4/30/2022 to issue and amend the interest rate to 2%. Any money collected in excess of the judgment amount shall be returned to the debtor. However, if the money was collected prior to 4/30/2022 to satisfy the debt in in full or in part, then the debtor has no right to a refund or remedy.

A new law seeks to reduce bias against injured workers in low-income brackets who cannot afford attorneys' fees.

New York's Workers’ Compensation law has been amended to include awarding attorneys’ fees for the following services:

• 1/3^rd of one week’s compensation for awards made directing the continuation of weekly compensation benefits for temporary total or partial disability;

• 15% of the increased compensation when an award is made that increases the amount of compensation awarded or paid for a previous period(s) of temporary total or partial disability;

• 15% of the compensation due in excess of the employers/carrier’s previous payments when an award is made for loss of use or permanent facial disfigurement;

• 15% of the compensation due in excess of the employer or carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for permanent total disability or permanent partial disability;

• 15% of the compensation due in excess of the employer/carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for death benefits; and

• 15% of any benefits to be paid by the employers/carrier when an award is made under a waiver agreement.

New York State has adopted Sick Leave requirements for employers to follow under NY Labor Law § 196-b. With the new rule having become effective on 12/22/21, employers and their HR teams need to get up to speed quickly. 

The new rule requires employers of 3 different categorical sizes to provide a minimum number of paid sick leave hours for employees depending on the size of the employer and its net income. 

The rule does the following:

• Establishes standards of how employees shall accrue sick leave at a rate of no less than 1 hour per every 30 hours worked; 
• Protects employees from having to disclose confidential health information to employers as a condition to taking sick leave; 
• Sets up conditions for employees carrying over unused sick leave over to the following calendar year; 
• Creates protections to prevent employers from retaliating/discriminating against employees for exercising his/her sick leave rights; 
• Requires employers to provide written records of sick leave accrual upon employee request; 
• Requires that employees returning from sick leave be restored to their position prior to the sick leave with the same pay & other terms / conditions of employment; & 
• Allows for collective bargaining agreements to be entered into that provides for paid sick leave. 

Before the rule became effective, employers commented and expressed their concerns, under the regulatory process, and the government's responses have clarified the following facts:

• Newer employees will abuse sick leave because the rules allow employees to immediately use sick leave upon accrual; 
• Carrying over unused sick leave days to following years is problematic (per DOL, employers may either: (1) give employees the option to voluntarily elect to use & receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave);
• Conflicts can arise between sick leave requirements and other leave policies if not clarified in the employer's policy manual;
• Employee abuse systems need to be in place within an employer's policy manual or issues will arise; and
• Collective bargaining agreements need to be addressed to comply with the new rule.

This new sick leave rule will continue to raise concerns by employers and employees, but proactive employees with great policy manuals / collective bargaining agreements, which have been updated to reflect the new rule will win the day. Otherwise, there are going to be a lot of discrimination and retaliation claims when sick leave issues arise. 

1) Vaccine/Mask Mandates

• NYC Vaccine Mandate

NYC, via an Order of the Commissioner of Health and Mental Hygiene, now requires that all employers ensure that its workers are vaccinated against COVID-19. All private sector workers had to receive their first dose of a COVID-19 vaccine by December 27, 2021 and a 2nd dose 45 days later. Employers are further required to verify and keep a record of each worker's proof of vaccination. Workers may seek a reasonable accommodation for a qualifying disability or sincerely held religious belief. Violators may be penalized $1,000 per violation.

• OSHA (Federal) Mask Mandate

Citations (with large monetary penalties) for non-compliance with the OSHA vaccine mandate for all employers with 100+ employees is scheduled to begin on January 10, 2022. OSHA's mandate requires that qualifying employers ensure that all employees "be vaccinated or wear a protective face covering and take weekly tests." While the Sixth Circuit upheld the vaccine mandate, the U.S. Supreme Court will hear oral arguments on the vaccine mandate on January 7, 2021. Stay tuned to our blog for updates.

• NYS Mask Mandate 

Governor Hochul's statewide mandate requiring face mask/covering at all indoor public places is currently effective until January 15, 2022 (to be re-evaluated after this date). The mandate does not apply to indoor public areas that require proof of vaccination as a condition of entry. However, a business cannot "mix and match" i.e. permit individuals who show proof of vaccination to enter mask free while permitting those who do not present proof of vaccination to enter wearing a mask. Either no one is permitted entry that cannot provide proof of vaccination or everyone must wear a mask (whether vaccinated or not).

2. New York State HERO Act

On May 5, 2021, the NY HERO Act was signed into law in order to protect employees against exposure and disease during an airborne infectious disease outbreak. The HERO Act requires employers to take certain measures to protect their employees in the event of an outbreak including implementing an exposure prevention plan. On September 6, 2021, NYS Dept. of Health designated COVID-19 as a highly contagious communicable disease, which means that employers must currently have a written airborne infectious disease policy in effect.

3. Notice of Employee Monitoring

Pursuant to a new law signed by Gov. Hochul, beginning on May 7, 2022, employers in NYS who wish to monitor or otherwise tap telephone calls, e-mails, or internet access of an employee via any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must post the notice of electronic monitoring in a visible place in the office. Businesses will be subjected to fines for violations.

4. Cannabis Use in the Workplace
The Department of Labor issued guidance on Section 201-D of the NY Labor Law which prohibits an employer from discriminating against employees for using cannabis outside of the workplace on their own time. While, per the guidance, an employer may prohibit cannabis use during work hours, an employer may only discipline employees (where employee did not use cannabis during work hours) who "manifest specific articulable symptoms of impairment" due to cannabis use. For example, odor of cannabis, without more, is insufficient to discipline an employee.

5.  Whistleblower Protections

Effective January 26, 2022, employees/independent contractors will have significantly expanded whistleblower protections, pursuant to 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.

6. Shared Work Program

Employees, without fear of retaliation, may petition their employer, in writing in advance of a layoff or within ten (10) days after a layoff to implement a “Shared Work” program (A 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).

7. Requirement to Include Minimum and Maximum Salaries for all Posted Positions

Beginning in April 2022, unless vetoed by January 14, 2022, a new law will require NYC employers to include in all job advertisements, the minimum and maximum salaries for the posted position. Positions extend to jobs, promotions, or transfer opportunities. Employers that fail to include the minimum and maximum salaries will be in violation of the NYC Human Rights Law.

8.  Mandatory Enrollment in Retirement Plan

As of December 22, 2021, cooperatives have received 8 exemptions from the Housing Stability and Tenant Protection Act, which otherwise restricts landlords' rights as to their tenants.

When the Housing Stability and Tenant Protection Act came out, we repeatedly tried to explain to co-op boards, property managers (managing agents), real estate brokers, local NAR boards, and courts, amongst others, that this law applied to co-ops regardless that it clearly was not the intent of the legislature. To a non-lawyer intent of the legislature matters, to a lawyer the rules of statutory interpretation matter and you never get to the intent of the legislature if the statute is clear on its face, which the Housing Stability and Tenant Protection Act is. You see, co-ops are landlords and their shareholder-owner-occupiers are tenants. This is longstanding settled law, which  created a huge predicament for co-ops. 

Thankfully, roughly 2 years later, the law is finally fixed as follows:

• GOL 7-108(1-a), the deposit or advance limit of one month’s rent will no longer apply to owner-occupied cooperative apartments;
• RPL 226-c, the notice requirement for rent increases of 5% or more / non-renewal will no longer apply to owner-occupied cooperative apartments;
• RPL 238-a(1)(a), the preclusion of charging fees to review applications will no longer apply to  compensate managing agents and/or transfer agents for the processing, review, or acceptance of such prospective tenant’s application to become a shareholder of such co-op; 
• RPL 238-a(1)(b), the cap on fees for applications of $25 is inapplicable to applications from prospective shareholders to co-ops, but the limitation of only charging up to the actual cost remains;  
• RPL 238-a(2), late fees are now permitted on owner-occupied cooperative, but only up to 8% of monthly maintenance fee and only where the proprietary lease or occupancy agreement is updated to reflect such percentage;
• RPAPL 702(2), the limited definition of rent for purposes of a judgment in a summary proceeding is inapplicable to owner-occupied cooperatives to the extent that the proprietary lease or occupancy agreement is updated to reflect a different definition;  
• RPL 235-e, the 5-day non-payment of rent notice does not need to be sent by certified mail to co-op owner-occupants to the extent that the proprietary lease or occupancy agreement is updated to reflect a different method of serving notice; and 
• RPL 234, attorneys’ fees may be awarded to either party in the event of a default judgment concerning a co-op owner-occupant to the extent that the proprietary lease or occupancy agreement is updated to reflect the availability of such fees. 

A new NYS law requires all food service establishments with a grease trap / interceptor to ensure that it's designed to withstand expected loads & prevent unauthorized access. This law is effective 1/10/2022. 

The law also calls for the State Fire Prevention & Building Code Counsel to create regulations about warnings / design requirements for grease traps.

Beyond providing for local governments to adopt local laws to enforce this new law, it definitely establishes exposure to restaurants for personal injuries. Restaurateurs and landlords should ensure compliance and modify their leases to establish who is responsible for compliance.