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OPINION: How Municipalities Can Expand Public Engagement by Going Hybrid

Posted: October 13th, 2021

For those who hoped never to hear the phrase “new normal” again… we’re not there yet.

Yes, we are getting back to a “new normal” as the pandemic continues on. And while the Delta variant is posing continued challenges, many in-person activities have resumed. But for municipalities, with new updates to the New York State Open Meetings Law, maybe a hybrid style model is the best way to expand public engagement and follow the new guidelines.

New York Open Meetings Law

Governing state and local government meetings is a piece of legislation that covers public bodies such as municipalities. Known as the New York Open Meetings Law, or OML, Section 103 of the Public Officer’s Law states that public bodies at the state and local level in New York must give notice of meetings and allow the general public to attend at a facility that permits barrier-free physical access.

According to Section 102 of the OML, public bodies are defined as any entity that requires a quorum to “conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof.” Therefore, a public body is any state, county, or municipal government. And a quorum means a majority of body members needed to take formal action of matters of public business.

Essentially, the OML gives citizens the right to attend and listen to the deliberations and decisions that go into the making of public policy in an open and public manner, enabling them to educate themselves on current legislation and observe the performance of public officials.

New York State Response to COVID-19 and the OML

On March 12, 2020, former Governor Cuomo issued Executive Order 202.1. The order suspended the requirement that members of a public body physically convene; now, teleconferencing was permitted. Therefore, instead of providing a meeting location where the public could gather, if a municipality wanted to host a meeting, the Executive Order mandated that the municipality had to provide remote access to the general public.

In addition to suspending certain requirements such as an in-person and physical location, some new requirements were also established for the duration of the Executive Order 202.1 such as recording and transcribing meetings.

OML Fully Functioning Again?

On June 25, 2021, the State Disaster Emergency ended, removing the provision that suspended the Open Meetings Law. So this summer, the aspects of the OML related to in-person attendance (that were previously suspended) went back in effect.

Many municipalities found the shift back to in-person meetings startling. When the pandemic began, it had been a challenge for many municipal and state boards to gain familiarity with platforms such as Zoom. However, many members of the general public attending the meetings virtually quickly became accustomed to the ability to watch and participate in municipal meetings from the comfort of their own home. As more municipalities and the public became used to hosting and attending virtual meetings, it quickly became commonplace and convenient. The many positive outcomes of these meetings included that people who had never participated in the municipal process in the past were able to watch, listen and comment – estimates suggesting that public engagement actually increased during an otherwise dark time.

Virtual Access Extended

So with the Open Meetings Law fully functioning again, that means all government meetings need to be held in-person again, right?

Not so fast. Earlier this September, Governor Hochul signed legislation extending virtual access to public meetings. This means that meetings can be held remotely again as long as the public has the ability to view or listen to the meetings, and as long as the meeting is recorded and later transcribed.

For municipalities who were hoping for in-person meetings again but enjoyed the increased engagement of virtual meetings, perhaps a compromise with a hybrid style model is the best option.

What Would a Hybrid Style Look Like?

If a municipality were to host a board meeting implementing a hybrid style model, then the meeting could be held in the usual physical meeting spot in addition to on Zoom or another video platform. This way, public engagement could be maximized to its full potential and follow Governor Hochul’s legislation at the same time.[1]

A hybrid style could also address the matter of accessibility and inclusivity. People that don’t have cars or access to transportation could continue to attend virtual meetings and stay in the loop. After all, communities work best when the people living in them and the people leading them work together. Therefore, hybrid-style meetings are a solution to improve outreach, participation, and inclusivity. While the pandemic disrupted most of our lives, municipalities should capitalize on the opportunity to collaborate with the public and find more ways to include everyone.

Questions on how to navigate the Open Meetings Law now that virtual meetings have been extended? Contact us at 631-738-9100.

[1] If a municipality wishes to host a virtual meeting only (without a physical location tied to it), then Governor Hochul’s legislation allows this option.

NYS Appoints Cannabis Regulators, Moving Closer to Licensing Regulations

Posted: October 5th, 2021

By: Arthur Yermash, Esq. email

Tags: cannabis

Following the legalization of recreational marijuana and Governor Hochul being sworn in, the ball is finally rolling on establishing an Office of Cannabis Management (OCM) in New York State.

The OCM is the regulatory agency that will oversee New York’s legal cannabis industry. On September 1, the New York State Senate convened a special session to confirm Governor Hochul’s nominations: Chris Alexander as Executive Director of the OCM and Tremaine Wright as the Chair of the Cannabis Control Board (CCB). Alexander is a former policymaker for the Drug Policy Alliance and was involved in the creation of the Marijuana Regulation & Taxation Act. Wright is a former Assemblywoman and current Director of the Office of Financial Inclusion and Empowerment in the NYS Department of Financial Services.

OCM Executive Director Alexander’s role will be to oversee applications for licensing and permits for manufacturing, cultivating, processing, settling, storing and distributing cannabis. CCB Chair Wright will be responsible for the number of registrations, licenses and permits to be issued.

The approval of Governor Hochul’s picks means that New York State is moving closer to establishing regulations on cannabis licensing. The state legalized recreational marijuana this past spring after the issue took a backseat to the COVID-19 pandemic. Governor Hochul ordered the special session by saying she wanted “to jumpstart the long-overdue decisions pertaining to establishing cannabis in the state of New York.”

Following the NYS Senate’s special session to appoint New York’s cannabis regulators, on September 22, Governor Hochul announced her Cannabis Control Board member appointments: Ruben R. McDaniel, III and Jessica Garcia. As board members, McDaniel and Garcia will help create and implement the regulatory framework for New York’s cannabis industry. McDaniel is the President and CEO of the Dormitory Authority of the State of New York which provides construction, financing, and allied services. Garcia is Assistant to the President of the Retail, Wholesale Department Store Union, a national labor union representing workers along the food supply chain, as well as workers in non-food retail and healthcare.

The final two members of the five-person Cannabis Control Board include Adam W. Perry, Speaker Carl Heastie’s appointment, and Jen Metzger, Senate Majority Leader Andrea Stewart-Cousins’s appointment. Perry is an employment attorney, while Metzger is a former New York State Senator from the 42nd District.

Now that New York’s Cannabis Control Board is officially complete, and the Office of Cannabis Management has a director, that means that the regulatory process of legal marijuana can start to move forward with steps towards licensing, cultivation, production, distribution, sale, and taxation.

Visit our Cannabis Law practice area page to learn more about cannabis regulations, compliance, and licensing.

Hochul Activates NY HERO Act: What Should Employers Do Now?

Posted: September 13th, 2021

By: Arthur Yermash, Esq. email

Tags: coronavirus, labor & employment

This month, Governor Hochul announced that the Commissioner of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act.”

Former Governor Cuomo had previously signed the NY HERO Act into law on May 5, later amending the legislation in three main areas on June 11. The NY HERO Act requires employers to develop airborne exposure prevention plans and communicate them to employees. Under Governor Cuomo, the plans were required to be adopted by August 5 but were not required to be in effect. Now, Governor Hochul’s designation requires that the airborne infectious disease exposure prevention plans be activated by employers and abided by employees.

What Do Employers Need to Do Now?

Employers should understand what the New York State HERO Act entails. As we previously reported, the HERO Act has two main sections governing (1) the development and adoption of a workplace prevention policy for airborne infectious diseases, and (2) the creation of workplace safety committees.
Review the industry-specific templates posted by the New York State Department of Labor in consultation with the New York State Department of Health.
Ensure their airborne infectious disease exposure prevention plans meet the NYS DOL and NYS Department of Health minimum standards and model plans.
Communicate the plan to all employees. The prevention plan should be posted in the workplace in a visible location and distributed to all employees.
Lastly, employers and employees should follow their prevention plans and look out for any new guidance from the state.

CMM will continue to provide updates. For guidance on the NY HERO Act or adopting your own prevention plan now that plans must be activated, please contact us.

For more information on the NY HERO Act, read CMM’s “What Employers Need to Know about HERO Act Obligations” article here.

What Employers Need to Know About the New Federal Vaccine Mandate

Posted: September 13th, 2021

By: Arthur Yermash, Esq. email

Tags: coronavirus, labor & employment

On September 9, President Biden announced his six-part plan to combat the COVID-19 pandemic and Delta variant. Among these six points include vaccine mandates for employers with 100+ employees. Here, a look at Biden’s plan and what employers need to know regarding the new vaccine mandates.

All employers with 100+ employees must ensure their workers are vaccinated or tested weekly.

The Biden administration has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with more than 100 workers to introduce regular weekly testing or mandate the COVID-19 vaccine through an Emergency Temporary Standard (ETS).

A senior White House official has been quoted as suggesting that any business that does not comply with the new rules could face up to $14,000 in fines per violation; however, whether this ultimately becomes part of the OSHA rules remains to be seen. Companies will have to pay for the testing, but could be allowed to pass the cost on to their employees.

The mandatory vaccine or weekly testing will be implemented and enforced through OSHA’s ETS; however, no regulations have been released yet, which means there are no compliance dates as of this writing. When the ETS is released, it will most likely include similar guidance as the COVID-19 healthcare ETS that became effective this past June. The ETS will most likely supply fact sheets and summaries about the rule as well as implementation presentations and checklists. As for enforcement, OSHA will need to provide inspection procedures to establish uniform enforcement for employers.

OSHA is developing a rule requiring employees to be offered paid time off for vaccination and to recover if they are under the weather post-vaccination.

While earlier this year New York implemented up to four hours of paid leave to receive the COVID-19 vaccine (see DOL details here), OSHA will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS as well and the details remain to be seen.

Lastly, the plan requires the vaccine for healthcare workers at Medicare and Medicaid participating hospital and healthcare settings.

This action builds on the vaccination requirement for nursing facilities and will apply to nursing home staff as well as staff in hospitals around the country. This includes clinical staff, volunteers, and staff who are not involved in direct patient, resident, or client care.

CMM will continue to provide updates on the implementation of the “Path out of the Pandemic” plan. If you have questions on the new vaccine or testing mandate, please contact us.

“I’ll Take That One!”: How “Shopping” for Cases Makes SCOTUS the Most Powerful Branch of Government

Posted: August 18th, 2021

By: Joe Campolo, Esq. email

Tags: Supreme Court

During its 2020-2021 term, the Supreme Court agreed to hear 62 cases – a seemingly large number until you consider the nearly 7,000 it rejected. So how do the less than .01 percent of cases make it to the Supreme Court docket? You may think it takes superior scholarship and a little luck…and you’d be right. But sometimes you might just need to give the Justices the exact type of case they ask for.

The Process

Usually, the Supreme Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a state. Parties petition the Supreme Court to hear a case if they are not satisfied with a lower court’s decision. According to the Department of Justice, the primary means to petition the Court for review is to ask it to grant a writ of certiorari, which is an order issued by the U.S. Supreme Court directing the lower court to transmit records for a case it will hear on appeal. The Supreme Court will hear a case if at least four of the nine Justices agree to grant the petition for certiorari. This is called the “Rule of Four.” If three or fewer agree to grant the petition, then the Court must decline to hear the case.

How Do Justices Choose Which Cases to Grant Certiorari?

Sometimes, Justices might be interested in settling splits on an issue among lower Circuit Courts. This way, if a number of courts reach different conclusions about a law, the Supreme Court can step in and interpret the law and set a precedent for all the courts. Other times, the Court hears cases when they feel that lower courts have disregarded or misapplied Supreme Court precedent and the Justices want to correct it. Justices also choose cases to resolve conflict between federal and state laws. Through published opinions, it’s also not uncommon for Justices to encourage or even invite certain cases.

Wait, the Court Can Ask for Cases?

Yes, in opinions and dissents. Consider the Court’s rejection of Small v. Memphis Light, Gas & Water in April 2021.

In 1977, the Supreme Court decision in Trans World Airlines, Inc. v. Hardison established the precedent that an employer does not need to provide a religious accommodation to an employee that involves undue hardship on the employer. The Supreme Court rejected the opportunity to challenge this 44-year-old precedent when it declined to hear the Small case this spring.

Jason Small had worked as an electrician for over a decade at Memphis Light, but suffered an injury on the job in early 2013 that required him to change roles. Memphis Light offered him another position, which Small accepted, but with concerns that the new position would conflict with the practice of his religion. Small told the company that he attends services on Wednesday evenings and Sundays and asked for a different position or shift. Memphis Light denied the request. Small remained in the new position and used his vacation days when necessary to attend church. Eventually, Small asked to use vacation time on Good Friday, and the company refused. When Small missed work anyway, the company suspended him for two days without pay.

In 2017, Small sued Memphis Light, Gas & Water for violating Title VII of the Civil Rights Act of 1964, which requires employers to grant requested religious accommodations unless doing so would impose an “undue hardship” on them. On the eve of the trial, the District Court granted Memphis Light summary judgment, and the Sixth Circuit affirmed.

While the Supreme Court ultimately rejected Small, Justices Neil Gorsuch and Samuel Alito later wrote an opinion dissenting from the denial of the case in which they not-so-subtly voiced their desire for a case to be brought to the Court that could overturn Hardison. In their opinion about the Court’s rejection of Small, in which they referred to Hardison multiple times, Gorsuch and Alito wrote, “There is no barrier to our review and no one else to blame. The only mistake here is of the Court’s own making – and it is past time for the Court to correct it.” Using the medium of a public dissent, Justices Gorsuch and Alito voiced their opinion disagreeing with the other Justices that denied certiorari and advocated for the Court to correct what they deemed to be a past mistake.

In another published opinion, Justices Alito, Thomas, and Gorsuch concurred in the denial of certiorari of a 2020 case, Patterson v. Walgreen Co. However, despite their concurrence, and similar to the Small dissent, the Justices referenced Hardison. Justice Alito wrote, “I agree in the end that this case does not present a good vehicle for revisiting Hardison, but I reiterate that review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.” Essentially, while the three Justices agreed that Patterson v. Walgreen Co. was not the correct case through which to examine the precedent set by Hardison, they still invited cases that would challenge Hardison to come before the Court as a more appropriate “vehicle.”

History of Using Dissents to Invite Cases

The published dissent in the Small case and the concurrence in the Patterson case in which the Justices encouraged litigants in other cases to come forward that would challenge Hardison is not all that unusual. Justices have used published dissents as a way to show what cases they are looking for as well as solicit future attempts to win the “Rule of Four” needed to accept a case. The use of this practice has varied under different Chief Justices. Publishing dissents to garner support for cases was common under Chief Justice Warren Burger; however, Chief Justice William Rehnquist disliked the practice. Under Chief Justice John Roberts, publishing dissents to identify issues and express hopes for future cases has made a return.

While the Supreme Court doesn’t exactly have slim pickings when deciding which cases merit certiorari, they can encourage cases that challenge or address specific precedents to at least try and claim a spot on the Court’s docket. Therefore, it wouldn’t be surprising for more cases that challenge Hardison to petition the Court until one is finally granted review. Any middle schooler should know that the judicial branch of government can only interpret laws – not enforce them. Even Alexander Hamilton once said that the Judiciary branch would be the weakest of the three branches of government because it had no influence. But the practice of using dissents and majority opinions to ask for certain cases? That sounds like influence.

Judicial Dissolution: An Uphill Battle

Posted: August 5th, 2021

By: Patrick McCormick, Esq. email

Published In: The Suffolk Lawyer

Tags: commercial litigation, corporate, startups

When drafting limited liability company operating agreements, some variation of the words “The LLC is formed to conduct any lawful business activity” is used to describe the purpose of the entity. The wisdom of this approach was called into question in a recent judicial dissolution proceeding that came before the New York County Commercial Division (Masley, J.). Across the East River, on the very same date, the Commercial Division in Queens also issued a decision in a judicial dissolution proceeding (Livote, J.), involving shareholder oppression in a corporation. These recent decisions serve as a reminder to corporate shareholders and LLC members – and their attorneys – that dissolving a business entity is far more difficult than creating it.

Broad Purpose Clause: Lazar v. Attena LLC[1]

Petitioners Lazar and Sheinbaum commenced a special proceeding pursuant to LLC Law § 702 to dissolve three LLCs: Attena LLC, Hemera LLC, and Nessa LLC, all of which had been formed during the early 2010s. They also sought the appointment of a receiver to wind up the LLCs’ affairs as well as to restrain respondents Mor and Zichron from filing tax returns on the LLCs’ behalf without prior express written consent of the petitioners or the receiver.

In their petition, Lazar and Sheinbaum contended that the sole purpose of the LLCs was to acquire, own, and operate five multi-family properties in Manhattan. All the associated properties were sold by December 2015, rendering the intended purpose of the LLCs moot. Asserting that the LLCs had therefore “run their course,” the petitioners sought judicial dissolution.

LLC Law § 702 provides that “‘[o]n application by or for a member, the supreme court in the judicial district in which the office of the limited liability company is located may decree dissolution of a limited liability company whenever it is [n]ot reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.’ Thus, the court must determine whether it is ‘reasonably practicable to carry on the business’” of the LLC (citing Matter of 1545 Ocean Ave., LLC, 72 A.D.3d 121 (2d Dep’t 2010). To succeed, the petitioner must establish that “‘(1) the management of the entity is unable or unwilling to reasonably permit or promote the stated purpose of the entity to be realized or achieved, or (2) continuing the entity is financially unfeasible.’” Id. at 131.

Upon the Court’s examination, contrary to the petitioners’ assertions, the operating agreements of the LLCs all defined each entity’s purpose as “any lawful business purpose” – not to acquire, own, and operate the properties. The Court noted that the petitioners offered no evidence to support the claim that this general purpose of the LLCs to engage in “any lawful activity” was no longer occurring. The court found that the respective operating agreements did not limit the business purpose of the LLCs and that the petitioners provided no evidence that the LLCs were in “financial turmoil, insolvent, or otherwise cannot meet their debts and obligations” (a second potential basis for dissolution). The Court therefore dismissed the petition, pointing out that “Oppressive conduct is not sufficient.”

Lazar is a sharp reminder that when petitioning for judicial dissolution under LLC Law § 702, a broad purpose clause in an operating agreement will be a potential hurdle that must be overcome. When forming a new company, the last thing business partners want to think about it is dissolving it based on a future disagreement. But the LLC members and attorney should discuss this clause upon the LLC formation, and not treat it as an afterthought.

Shareholder Oppression: Hammad v. Jamal Kamal Corp.[2]

Petitioner Nedal Hammad was the 25% owner (as well as the president) of respondent corporations Maysa Realty Corp. and Jamal Realty Corp. (“Jamal Kamal”), both real estate holding companies. Nedal’s brothers (Jamal, Kamal, Omar, and Samir) owned the remaining 75% of the corporations.

In February 2017, the brothers made fourteen demands to Nedal regarding company operations. One demand was to stop making payments to Highcrest, another company owned by the brothers, because they thought Nedal was using Highcrest to drain money from the companies to enrich himself. Nedal continued to make payments to Highcrest, making payments for $29,850 from Maysa and $29,975 from Jamal Kamal in March 2017. Later that year, Nedal made distributions of $150,000 from Maysa and $160,000 from Jamal Kamal to himself and the brothers, including Jamal, without their approval. The brothers did not cash the distribution checks. Thereafter, the brothers elected Jamal president. Jamal, as president, retroactively changed the 2017 distributions made to Nedal. Following his removal as president, Nedal filed a petition for judicial dissolution of the companies under BCL § 1104-a.

Additionally, in late 2018, Maysa and Jamal Kamal made distributions of $509,400 and $499,900, respectively. Nedal’s share of these distributions were applied to his outstanding loans that were created by the re-classifications. These distributions were calculated to reduce the balance of Nedal’s loans to zero. Nedal was not notified of the distributions.

Pursuant to Business Corporation Law (BCL) 1104-a, a holder of 20% or more of the shares of a business corporation (which Nedal held) may seek dissolution if “the directors or those in control of the corporation have been guilty of illegal, fraudulent or oppressive actions toward the complaining shareholders.” Dissolution also is warranted if “the property or assets of the corporation are being looted, wasted or diverted.”

In determining whether to proceed with involuntary dissolution, the court must take into account (1) “Whether liquidation of the corporation is the only feasible means whereby the petitioners may reasonably expect to obtain a fair return on their investment; and (2) Whether liquidation of the corporation is reasonably necessary for the protection of the rights and interests of any substantial number of shareholders or of the petitioners.”

Here, the Court held that judicial dissolution was not warranted. The removal of Nedal as president did not constitute oppressive conduct. However, no acceptable justification was offered for the reclassification of the payments to Highcrest; although the brothers alleged that Nedal was self-dealing through Highcrest, they did not prove the allegations.

The Court also noted that Nedal’s reasonable expectations as a shareholder were to receive a dividend in proportion to his ownership. The oppressive conduct against Nedal was to remedy what the brothers viewed as his unauthorized and oppressive conduct. After the 2018 distributions were made to “equalize” the distributions among all the shareholders, the Court did not find that any “future oppressive conduct” was intended by the brothers, and Nedal will share in future distributions. Therefore, dissolution would not be an appropriate remedy. Instead, the appropriate remedy was to pay to Nedal the amounts paid to Highcrest that the brothers improperly reclassified as loans.

Hammad is a reminder that courts have a great deal of discretion when determining petitions for judicial dissolution in shareholder oppression suits. Specifically, when majority shareholders are able to continue company operations, judicial dissolution may not be the appropriate remedy; monetary damages for past wrongdoings may be more appropriate. Like Lazar, Hammad reminds us that breaking up can be hard to do.

[1] 2020 WL 5439528 (NY County Sup. Ct., Sept. 9, 2020)

[2]2020 WL 5755548 (Queens County Sup. Ct., Sept. 9, 2020)

High Bar for Tenants: Court Sides with Landlord in Harassment Case

Posted: July 29th, 2021

By: Patrick McCormick, Esq. email

Tags: landlord-tenant

Sitting in a rare en banc hearing in Francis v. Kings Park Manor, Inc. 992 F.3d 67 (2d Cir. 2021), the United States Court of Appeals for the Federal Circuit vacated the panel determination holding and affirmed the District Court’s dismissal of the plaintiff’s claims of intentional discrimination under the Fair Housing Act of 1968; Housing Discrimination claims under 45 USCA §§1981 and 1982; Housing Discrimination under NYSHRL; and negligent Infliction of emotional distress. The Court held that a claim by a tenant “alleging that his landlord failed to respond to reports of race-based harassment by a fellow tenant fails to state a claim for intentional discrimination.” The Court reasoned that “landlords typically do not, and therefore cannot be presumed to exercise the degree of control over tenants.”

Background

As alleged in the Complaint, Donahue Francis, a Black man, rented and lived in an apartment at Kings Park Manor, an apartment complex owned and operated by defendant Kings Park Manor, Inc. (“KPM”). Throughout 2012, Francis’s neighbor verbally attacked and attempted to intimidate him by making racist insults and at least one death threat. In March 2012, Francis reported his neighbor to the Suffolk County police, who informed KPM of the reported events. Francis renewed his lease “without comment” on May 1, 2012; thereafter, Francis wrote three letters to KPM, in which he recounted his neighbor’s behavior, the police involvement, and his neighbor’s arrest for aggravated harassment in August 2012. However, he did not allege in the complaint that he ever requested any action by KPM. His neighbor pleaded guilty to a charge of harassment in April 2013.

The Complaint

Francis’s Complaint asserted claims of racial discrimination against KPM under the Fair Housing Act (“FHA”), Section 1 of the Civil Rights Act of 1866, as amended and codified at 42 U.S.C. §§1981 and 1982, and the New York State Human Rights Law (“NYSHRL”), as well as a common law claim of negligent infliction of emotional distress. The Complaint also included a breach of contract claim against KPM. KPM moved to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court for the Eastern District of New York denied the motion as to Francis’s breach of contract claim, but otherwise granted it by dismissing Francis’s other claims against KPM.

A divided panel in the Second Circuit issued an opinion affirming the dismissal of Francis’s claims for negligent infliction of emotional distress but reversed the dismissal of his discrimination claims. Rehearing en banc was later ordered.

The Court’s Analysis

The Second Circuit, in a 7-5 en banc ruling, vacated the panel decision and affirmed the judgment of the District Court, holding that “(1) a landlord cannot be presumed to have the degree of control over tenants necessary to impose liability under the FHA for tenant-on-tenant harassment, (2) Francis fail[ed] to state a claim that the KPM defendant intentionally discriminated against him on the basis of race in violation of the FHA, Civil Rights Act, or the NYSHRL; and, (3) Francis fail[ed] to state a claim of negligent infliction of emotional distress against KPM under New York law.”

Because the plaintiff’s claims were not premised on direct evidence of landlord discrimination, the Court analyzed the claims under the McDonnell Douglas burden-shifting framework.[1] The Court found the complaint “lacks even ‘minimal support for the proposition’ that the KPM defendants were motivated by discrimination intent” and that “only untethered speculation supports an inference of racial animus of the part of the KPM defendants.” The Court recognized that Francis claimed these allegations establish that defendants intentionally discriminated against him under the “deliberate indifference” theory of liability. The Court held that, even if this theory applied, “Francis has failed to state a claim because his complaint provides no factual basis to infer that the KPM defendants had “substantial control over [the harassing and the context in which the known harassment occur[red].” Nor can such control be reasonably presumed to exist in the typical arms-length relationship between landlord and tenant, unlike the custodial environments of schools and persons.”

The Court further explained that the typical powers of a landlord over a tenant – such as the power to evict – does not establish the “substantial control” necessary to state a “deliberate indifference” claim under the FHA.

Significantly, the Second Circuit went to lengths to distinguish the Seventh Circuit’s determination in Wetzel v. Glen St. Andrew Living Community, LLC 901 F.3d 856 (7^th Cir. 2018), which “recognized a deliberate indifference theory of liability for a claim of discrimination under the FHH.” The Second Circuit distinguished Wetzel because there the allegations “gave rise to the plausible inference that the defendant landlord had unusual supervisory control over both the premises and the harassing tenants.” In addition, the Second Circuit found it significant that the landlord in Wetzel “was alleged to have affirmatively acted against the plaintiff.”

The Court also concluded that even if KPM had “substantial control,” Francis would have still failed to state an FHA claim for discrimination under a “deliberate indifference” theory because KPM’s inaction was not “clearly unreasonable” in light of the circumstances described in the Complaint.

Conclusion

While the Court’s decision emphasizes the particular facts in this case, it seems that the Court’s analysis and application of the law to those facts, coupled with its analysis of the Second Circuit’s determination in Wetzel, result in a very high bar for tenants to overcome. The decision also gives significant protections to landlords faced with intentional discrimination claims based on allegations that the landlord failed to respond to allegations of fellow tenant’s race-based harassment.

[1] McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiffs have specific, “reduced” pleading burdens in cases subject to the McDonnell Douglas analysis. For a plaintiff’s claim to survive a motion to dismiss under the McDonnell Douglas analysis, he must plausibly allege that he “(1) is a member of a protected class, . . . (2) suffered an adverse . . . action, and (3) has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.” While plaintiff did allege, “in a conclusory fashion” that the KPM defendants intervened against other tenants regarding non-race related violations of their leases or of the law, the Court held that “there is no factual basis to plausibly involve infer that the KPM defendants’ conduct with regard to Francis was motivated by racial animus.”

Communication in Negotiation: Cialdini’s Six Principles of Persuasion

Posted: July 15th, 2021

By: Joe Campolo, Esq. email

“Communication is key in negotiation” and “negotiation is an exercise in communication” – phrases you’ve probably heard so many times that they’ve become meaningless. What if instead, we said that negotiation is about communication and persuasion. That’s what the research of Dr. Robert Cialdini, an expert in the field of influence and persuasion through evidence-based research, has revealed. According to Cialdini, negotiation is about persuasion and how one can present their ideas to others through effective communication in a way that moves them. By using Cialdini’s six principles of persuasion, you can use scientific and psychological-based claims to improve success in your own negotiations – and improve your communication skills while doing so. Here, a closer look:

Reciprocity

This principle states that people tend to give back to others what has been given to them – encouraging giving when you receive and making clear that you should be the first to “give.” Cialdini points out that what you’re giving should be personalized and unexpected.

For example, if you’re negotiating with a client around the holiday season, you could send them a holiday gift as a way to show that they can trust you. This can keep the relationship going in a meaningful way, especially if you send a personalized card. Research shows that client and customers are more likely to be touched by personal gestures such as a handwritten note or an envelope with a handwritten address rather than pre-typed label. Since you sent the gift first, the client now has the option to send one back (or not), but regardless, they will not forget the gesture you made.

Scarcity

People want what they can’t have – they crave exclusivity. In negotiations, it’s important to tell people about the benefits of your proposal. However, a more effective way of communicating is to highlight what makes your offer unique and what your counterpart stands to lose if they fail to consider it.

Say you’re negotiating the sale of a property or building. As the seller, you could consider mentioning to the potential buyer that there are others interested in buying as well so there isn’t that much time available to think about the offer. (Of course, if you use the scarcity principle to create a sense of urgency, you have to consider the ethics and be careful not to make fake claims that could risk your reputation.)

Authority

People follow the lead of those they perceive to be credible and knowledgeable – so it’s critical to communicate your expertise before you even start a negotiation.

An “expert introduction” is one way to establish credibility before a negotiation even begins. For example, if you are a client who calls an insurance company seeking to speak with an agent, the receptionist may transfer you to “Auto Agent David,” or to “Auto Agent David, who has 20+ years of experience in the auto industry and was recently recognized by an industry publication for his work.” Through this small extra detail, Auto Agent David’s authority just increased in your eyes.

Commitment & Consistency

People do not like to make large commitments. Therefore, it’s important to look for and ask for small initial commitments that can be made easily as a gateway to something bigger. For example, in a negotiation, if you are able to get your counterpart to agree to something smaller once, they are more likely to agree to something bigger later. Say you’re negotiating with a potential sponsor of your company event and want them to contribute a certain amount of time or money, you might want to start by asking for something minimal. Then, after they agree, you can ask them for more, or if you’re satisfied, the next time you host the event, you can ask the company to donate more than they did the first time.

Liking

People generally say yes to those that they like or feel more connected to. Furthermore, people like those who are similar to them, pay them compliments, and cooperate with them. When you are in a negotiation, sometimes a simple action like giving your counterpart a compliment and exchanging some personal information can create a more positive and successful interaction. Before starting a negotiation, try identifying a similarity that you and your counterpart share. This will set the stage for an agreeable outcome for both parties.

Consensus

The final principle is consensus – people look to the actions of others and try to mimic them. People like to be in the majority and feel safe there. That’s why a sign asking people to recycle might help; however, a sign adding that a certain percentage of the population recycles could be even more effective. By encouraging action (or inaction) from people by pointing out what others are doing, people will generally follow the behaviors of others to determine their own. This is often referred to as “FOMO” or “fear of missing out” where people want to feel included and be a part of a pack.

And there you have it: Cialdini’s six principles of persuasion can help sway a negotiation in your favor when properly executed (ethically, of course). You’re probably already employing some of these principles in your daily life. For instance, giving compliments might seem effortless and a part of your personality, but that means you’ve already mastered the principle of “liking.” Likewise, you might already gear up to ask people for bigger commitments by asking for little ones first – that means you’ve been putting the principle of “commitment & consistency” into effect. The next time you find yourself facing an unswayable friend or foe, try one, two, three (or all) of Cialdini’s principles out.

What Employers Need to Know about HERO Act Obligations

Posted: July 15th, 2021

By: Arthur Yermash, Esq. email

Tags: coronavirus, labor & employment

As the pandemic continues on, New Yorkers may not be surprised to learn that a new law has been passed addressing safety in the workplace in connection with COVID-19 as well as future airborne infectious disease outbreaks.

Governor Cuomo officially signed the New York Health and Essential Rights Act (HERO) into law on May 5, 2021. The legislation amends the New York Labor Law by adding two new sections governing (1) the development and adoption of a workplace prevention policy for airborne infectious diseases, and (2) the creation of workplace safety committees.

What You Need to Know about Airborne Disease Prevention Plans

The NY Hero Act requires the New York State Department of Labor (NYSDOL) to develop minimum standards for private sector employers to follow to help prevent the spread of airborne infectious diseases, such as COVID-19, in the workplace. These standards may differ among industries but will include elements familiar to employers who have already reopened: face coverings, employee health screenings, cleaning protocols, social distancing, and the like. The DOL has until June 4, 2021 to issue the standards. Employers do not have to adopt the NYSDOL’s industry-specific prevention plan models, but if they choose to create their own, the plans must meet or exceed the NYSDOL minimum requirements and be created with employee participation (for non-unionized workers). Most employers will also be required to provide notice of their prevention plan by June 4, as well as post it in a prominent location in the workplace, provide it to all employees upon reopening after a period of closure due to airborne infectious disease, provide it upon hire, and distribute it in the employee’s primary language if other than English (provided there is a model policy developed in that specific language).

Although Governor Cuomo signed the current version of the Act, he also stated that he had been in talks with legislators to amend the law to ease the burden on employers, giving them time to immediately cure violations, limiting litigation to situations in which employers act in bad faith, and to provide more time for the DOL and employers to enact the new standards. Violations of the law could result in monetary penalties.

What You Need to Know about Workplace Safety Committees

Effective November 1, 2021 for private sector employers with 10 or more employees[1] or an annual payroll over $800,000 and a workers compensation experience modification of more than 1.2, another provision of the HERO Act provides protections for employees who would like to form a workplace safety committee or report a health and safety plan violation. The law sets standards and requirements for committees like this and includes an anti-retaliation provision for employees. This will allow employees to engage in committee activities without fear of retaliation. Additionally, if an employer fails to comply with NYSDOL standards, employees may bring a claim against their employer for failing to follow NYS Labor Law.

What Do Employers Need to Do Now?

While the DOL model prevention plans are not yet available, employers should begin reviewing their policies and preparing for the upcoming compliance deadlines on June 4 and November 1. For guidance on the NY Hero Act minimum standards and adopting your own prevention plan, please contact us.

On June 11, Governor Cuomo signed legislation amending the New York State HERO Act in three areas:

Prevention Plans:

The amendments extend the deadline for the NYSDOL to publish its model plans to July 5, 2021 instead of the previous deadline of June 4. The updates to the Act also include set deadlines – employers will have 30 days after the DOL publishes the model standards to adopt their own disease prevention plans and 60 days to let employees know about any updated safety protocols.

Workplace Safety Committees:

The HERO Act provided protections for employees of certain private sector employers who wanted to form workplace safety committees. While the original HERO Act did not specify restrictions for workplace safety committees, the updates to the Act allow employers to limit such committees to one per worksite. The Amendments also limit committee meetings during working hours to two hours and committee training to four hours.

Private Causes of Action:

Governor Cuomo has also upheld his statement from our earlier article below in which he proposed to amend the Act to ease the burden on employers. The updates to the Act require employees to provide employers with 30 days’ notice before filing lawsuits and allow the employer time to correct the violation. This means that unless an employer demonstrates an “unwillingness to cure a violation in bad faith,” employees will not be able to bring suit if the employer corrects a violation in time. Lastly, the Amendments remove the Act’s ability to allow for recovery of liquidated damages in a private cause of action.

On July 6, 2021, the New York State Department of Labor, in consultation with the New York State Department of Health, published an Airborne Infectious Disease Exposure Prevention Standard and a Model Airborne Infectious Disease Exposure Prevention Plan.

Also published were industry-specific templates for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

What Now?

Employers now have 30 days to adopt a written exposure plan, either following the NYSDOL’s model plan or creating their own following NYSDOL standards. The plan must be communicated to employees and posted in a visible location.

It’s important to note that while an exposure prevention plan is required to be adopted and posted, it is not required to be in effect until the New York State Commissioner of Health designates an airborne infectious disease.

[1] The Act defines employees to include individuals such as part-time workers, independent contractors, domestic workers, home health and personal care workers, and seasonal workers.