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A SMALL MANHATTAN co-op was struggling with a question: “Who’s responsible for replacing an air-conditioner sleeve? The sleeve was in place when the unit was sold by the sponsor to the current owner. The owner is happy to split the replacement cost with the board, but the board wants the owner to pay the entire amount.”

And Queens co-ops and condos are suing one another to get it back.

On December 14, 2017, the NLRB reversed the portion of an Administrative Law Judge’s 2014 decision that barred The Boeing Company’s rule prohibiting the use of cell phones to capture images or take video on company grounds. [1] In doing so, the NLRB overruled the standard set forth in the 2004 Lutheran Heritage decision [2], namely that a workplace rule is unlawful even if it does not explicitly restrict activity protected by Section 7 of the NLRA ( i.e. , employees’ right to self-organize), if “employees would reasonably construe the language to prohibit Section 7 activity.”

As noted in the Boeing decision, Lutheran Heritage had previously been applied to bar a host of workplace rules, including rules that banned “false, vicious, profane or malicious statements toward or concerning the … [employer] or any of its employees,” “unwillingness to work harmoniously with other employees,” and “negative conversations about associates and/or managers.”

The NLRB’s reasons for rejecting the Lutheran Heritage “reasonably construe” test included that it fails to take into account legitimate justifications for policies, rules, and handbook provisions, and that it has yielded unpredictable results, which has created uncertainty and litigation for employees, unions and employers.

In Boeing , the NLRB adopted a new two-part test when evaluating a facially neutral policy, rule, or handbook provision that could potentially interfere with the exercise of Section 7 rights. Under that standard, the NLRB will evaluate: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”

Applying the new standard, the NLRB focused on Boeing’s justifications for its no-camera rule, including that its facilities are targets for espionage by competitors, foreign governments and supporters of international terrorism, and held that the justifications far outweighed the limited adverse effect on the exercise of Section 7 rights.

[1] See The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001 , Cases 19-CA-090932, 19-CA-09048, and 19-CA-095926
[2] See Martin Luther Mem’l Home, Inc. d/b/a Lutheran Heritage Village-Livonia , 343 NLRB 646 (2004)

The Westchester County Bar Association features Jacob Amir in it’s November Member Spotlight.

Some co-op and condo boards are penny wise pound foolish. And then there’s the board at an 80-unit co-op in Wheatley Heights, Long Island, which decided to spare no expense when it set out to evict a shareholder who repeatedly flouted the co-op’s smoking ban. It was a gamble that came with no guarantees and could have cost the co-op a bundle in legal fees.

The continuing public exposure of sexual harassment by powerful executives and celebrities has shed light on the need for effective policies to prevent sexual harassment in the workplace.

The EEOC Select Task Force on the Study of Harassment in the Workplace issued an extensive report in June 2016. Among the primary findings in the report is that sexual harassment in the workplace continues to be prevalent, and that current training programs have not been effective.

The report outlines the components that effective harassment policies must contain and emphasizes three broad themes.

First, committed leadership and accountability are critical. The workplace culture cultivated by organization leaders has the greatest impact on the success or failure of any anti-harassment policy. If the organization’s leaders are not committed to the policy, it will fail. Policies will only be effective if they include accountability systems that require all employees to comply with the organization’s expectation and requirement that harassment is not tolerated.

Second, training programs must be amended to make prevention the primary goal instead of merely avoiding liability. Among the new approaches to training the report identifies is “bystander intervention training,” which gives coworkers the tools to intervene when they witness harassing behavior.

Third, organizations must realize that there are compelling business reasons for preventing harassment aside from potential damages awards issued by courts and agencies. Workplace harassment affects all workers, and its costs include decreased productivity, increased turnover, and reputational harm.

On November 7, 2017, the U.S. House of Representatives passed a bill narrowing the definition of “joint employer” issued in 2015 by the National Labor Relations Board in the well-publicized Brown-Ferris Industries matter. In Brown-Ferris , the Board adopted an “indirect or potential control” standard in finding that a waste management company jointly employed workers with a staffing agency. For decades prior to that decision, the Board had applied a “direct control” test to determine joint employment questions. Much of the business community has objected to the new standard, especially franchisors who have argued that their entire business model is threatened by it. A companion Senate bill will likely be introduced in the near future.

On October 31, 2017 New York City’s new salary history law goes into effect. The law, which applies to private employers of any size, bars employers from inquiring about a job applicant’s salary history, but permits employers to request an applicant’s compensation demands. The law also bars employers from seeking salary history information from an applicant’s current or former employers. New York City employers should review all job application forms to exclude questions about salary history, and train all interviewers to assure compliance with the law.

New York City’s new law continues a trend in the state. In 2016, Mayor de Blasio signed an executive order prohibiting city agencies from inquiring about the salary history of job applicants. In January 2017, Governor Cuomo signed an executive order prohibiting state entities from asking the salary history of prospective employees. In July 2017, the State Assembly approved a wage history law pertaining to private employers, which did not make it through the Senate. And last month, a wage history law was submitted to the Westchester County Board of Legislators.

Please join us at this year’s Co-op Expo on November 2, 2017. Partners Ken Jacobs & Domenick Tammaro are teaming up for a seminar at 2:30 to speak on the do’s and dont’s of dealing with problem residents.

In Yerushalmi Holdings, LLC v. Olumo Real Estate Corp., 2017 Slip Op. 30855(U) (Kings Cty. Sup. Ct.), Kings County Supreme Court recently enforced a contract signed by a party’s attorney that contained un-initialed handwritten changes.

Justice Sylvia G. Ash, J.S.C. of Kings County Supreme Court, Commercial Division granted the Plaintiff-purchaser’s motion for summary judgment on its claim for specific performance of a contract for the sale of real property. Justice Ash held that the contract of sale was valid even though it was signed on behalf of the Plaintiff by Plaintiff’s counsel. Justice Ash found the contract enforceable where there was no “no dispute that [Plaintiff’s counsel] signed the contract of behalf of Plaintiff…and that [he] was granted such authority by Plaintiff.” Thus, the contract was enforceable “as a matter of law,” and no further factual investigation of the circumstances was required.

Judge Ash also held the handwritten changes to the contract of sale were enforceable as a matter of law, even though they were not initialed. The Court held that “Defendants’ contention to the contrary [was] not supported by any evidence.” The Defendants alleged that they notified their attorney to cancel the contract upon receipt of the handwritten changes, but that claim was contradicted by their attorney’s testimony that she deposited the down payment and that her understanding was that the contract was not terminated.

The Yerushalmi decision sends a clear message to purchasers and sellers of real estate that they will be bound by the actions and omissions of their attorneys if their attorneys have been granted authority to act on their behalf.