Posts filed under ‘COVID-19’

The One Thing All Credit Unions Have In Common

The one thing all credit unions have in common regardless of their size or where they are located is that they are struggling to hire and keep employees.  At least that seems to be the case anytime I’ve talked to a credit union or anyone in any business who is trying to find employees over the last several months.  The March unemployment statistics released on April 1st indicate that this trend is likely to continue for the foreseeable future and that inflation is likely to continue to impact your operations more than at any time since the early days of the Regan administration. 

The good news is that we are beginning to see the light at the end of the tunnel when it comes to covid’s impact on the economy.  According to the Department of Labor, while there are still 1.6 million fewer people employed than in February 2020, the employment rate for males is back to its pre-pandemic level, and there are some industries that are actually exceeding the 2020 employment.  Overall, the economy picked up 562,000 new jobs in the first quarter. 

But all this growth continues to come with pernicious consequences for employers.  Most importantly, “average hourly earnings of all employees on private nonfarm payrolls increased by 13 cents to $31.73 in March. Over the past 12 months, average hourly earnings have increased by 5.6 percent”.  In addition, the Wall Street Journal noted that the job market remains incredibly tight.  There are more job openings than unemployed people.  As a result, workers are quitting at record rates “leaving some companies short-staffed, at least temporarily”.  Sound familiar?

And of course inflation is continuing to impact your credit union, both operationally and as an employer.  While the 5.6% increase in wages is dramatic, it’s nowhere near the 8% inflation rate.  Which brings us back to the days of Paul Volcker who, as Chairman of the Federal Reserve in the late 70s and 80s, tamed inflation but only after high interest rates triggered a recession.  The latest numbers demonstrate that the Fed has no choice but to continue to raise interest rates.  Whether history is destined to repeat itself remains to be seen. 

April 4, 2022 at 9:51 am Leave a comment

Five Things You Need to Know As You Start Your Credit Union Week

Here is a surprising long list of things you need to know that happened over the past few days.  Most of these would be worthy of a blog on their own, and may in fact expanded upon at a future date.  I am sure you can’t wait.

COVID Order Lifted by Department of Health

On Friday, the Department of Health announced that it was no longer designating COVID-19 as “an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act.”  This means that you may stop taking all those additional precautions outlined under your HERO Act workplace safety plan.  Let’s hope that we don’t have to reinstate these precautions in the near future, but remember that you have an ongoing obligation to ensure that your business is prepared to activate these plans.  As a matter of fact, you may want to see if there are any adjustments that should be made based on your experience implementing this mandate.

Service Facility Guidance Issued

On Friday, the NCUA issued this letter to credit unions providing additional guidance to multiple common-bond federal credit unions seeking to use shared service facilities, such as New York’s USNET, to satisfy field of membership and/or underserved area requirements. 

Prior to the regulation’s adoption, only multiple common-bond credit unions that had an ownership interest in a shared branch network could use network facilities to satisfy branch requirements when taking on a new membership group or moving into an underserved area.  The regulation extended this authority to any multiple common bond credit union that participates in a shared branching network.

The letter notes that:

For multiple common-bond federal credit unions adding occupational or associational groups, a service facility must allow a member to deposit shares, submit loan applications, or receive loan proceeds. For multiple common-bond federal credit unions adding an underserved area, a service facility in the underserved area must allow a member to deposit shares, submit loan applications, and receive loan proceeds.

New York State Strengthens Sexual Harassment Laws

On March 16, Governor Hochul signed legislation to further strengthen protections against individuals who claim they have been retaliated against by their employer for either reporting or assisting others in reporting harassment and anti-discrimination claims under state law.  Specifically, Chapter 140 of the Laws of 2022 explicitly makes it unlawful to disclose an individual’s personnel file in retaliation for testifying or bringing a harassment claim against an employer.  The law is already in effect and authorizes the Attorney General to take action she suspects of violating this provision.

Medical Bills to be Excluded from Credit Reports

In a classic example of claiming victory and conceding defeat the Wall Street Journal reported (subscription required) on Saturday that most disputed medical bills will be excluded from credit reports. 

Beginning in July, the companies will remove medical debt that was paid after it was sent to collections. These debts can stick around on a consumer’s credit report for up to seven years, even if they are paid off. New unpaid medical debts won’t get added to credit reports for a full year after being sent to collections.

The announcement comes at a time when the CFPB has repeatedly questioned the accuracy of credit reports and has a director who isn’t shy about highlighting examples of what he perceives as inappropriate conduct against consumers.

New York State to Hold Series of Cybersecurity Symposia

Last, but not least, New York State’s Department of Financial Services announced that it will be hosting a series of cybersecurity symposia to mark the five year anniversary of New York’s Cybersecurity regulations.  Happy Anniversary!  Something tells me this is more than an academic exercise.  The DFS is examining ways in which it may update these regulations and these virtual discussions could provide an early indication of where it is headed.  The first symposium is scheduled to take place March 29, 2022.

March 21, 2022 at 8:25 am Leave a comment

The Mask Mandate is Alive and Well

Good morning, folks.  I’m here to tell you that you can grab a second cup of coffee before hitting speed dial for your HR attorney. 

Yesterday, the Attorney General was granted a stay by New York’s Appellate Division, Second Department, which keeps New York’s Public Mask Mandate in place pending judicial review.  The decision comes a day after a lower court in Nassau County, on Long Island, ruled that the emergency rule issued by the State’s Department of Health was an unlawful exercise of regulatory power.

As an employer, what the U.S. Supreme Court’s ruling against OSHA’s vaccine mandate and the case being litigated in New York have in common is that they both deal with the power of the Executive Branch of Government to take unilateral action.  This means, among other things, that neither the U.S. Supreme Court’s decision, nor the ultimate decision by New York’s Courts, impacts the ability of employers to establish and enforce private requirements for their own workplaces.  It also means that the Legislature could pass a law incorporating these requirements, if it so chose.

Now, for those of you who want to join me as I delve into the weeds a bit. One of the biggest differences between State and federal regulation is how much more orderly the federal regulatory process is.  As long as I have been around New York State, the regulatory process has atrophied.  Emergency regulations are often promulgated without any real showing of an actual emergency other than the fact that time is running out to promulgate a mandated regulation.  Without taking any position on the ultimate outcome of this litigation, perhaps this case can get us all thinking seriously about reinvigorating proper regulatory practice. 

January 26, 2022 at 8:45 am Leave a comment

Are You Responsible for “Take Home” Covid?

Although the decision by the Supreme Court to block OSHA’s implementation of an emergency vaccine mandate/ testing requirement for businesses with 100 or more employees has understandably gotten a lot of attention, all employers should remain mindful of their ongoing responsibility to ensure a safe workplace during the pandemic. A case pending in California demonstrates precisely what I am talking about.

Rose Gomez vs LOGIX Federal Credit Union, et al. involves a credit union employee who is suing the credit union for negligently protecting its employees against Covid resulting in the death of her relative after she contracted the virus. The plaintiff alleges that despite the known risks of Coronavirus spreading after the declaration of local, state, and national emergencies, the Credit Union continued to group employees close together. This case and another in California dealing with a closely related issue are being scrutinized nationally as courts begin to examine employer responsibilities in responding to the pandemic.

Among the issues that are being litigated in New York and other states are the extent to which Worker’s Compensation laws block employees from making claims such as the one being brought against the California credit union and the extent to which these laws also shield employers against the claims of third parties who claim to have been made ill after an employee “took home the Coronavirus.”

And of course because New York is New York there are increased legislative and regulatory requirements of which New York credit unions should be aware. As I have explained in previous blogs, New York’s HERO Act mandates that employers promulgate baseline protocols in response to airborne infectious diseases and authorizes employees to sue over the violation of these protocols.

In other words, if you think yesterday’s decision by the Supreme Court made your life easier you are sadly mistaken. Employers have an ongoing obligation to respond to the Covid pandemic and the courts will be defining the contours of those obligations for years to come.

January 14, 2022 at 9:23 am Leave a comment

Use This Flexibility While You Have the Chance

Yours truly has been under the weather, but now that I’m back in the saddle, there’s a lot to talk about. 

My sleeper pick for the most important regulatory amendment that no one is talking about is the NCUA’s decision to extend for another year the increased flexibility given to credit unions during the pandemic to purchase eligible obligations and loan participations. 

Loan participations, which allow credit unions to purchase parts of loans they did not originate, and eligible obligations, which permit credit unions to purchase entire loans, provide an essential means of liquidity for the industry.  When used properly, they allow credit unions to avoid excessive concentration risk by selling all or portions of some loans and permitting other credit unions to get into the action by purchasing these loans. 

There are, of course, important restrictions on both of these products.  First, when it comes to loan participations, federal regulations limit the amount of participations that can be purchased from any one lender.  Secondly, when it comes to eligible obligations, the borrower must either be a member of the purchasing credit union or the loan must be refinanced within 60 days of purchase so that the borrower is a member. There are exceptions to this rule for qualifying credit unions purchasing the assets of liquidating credit unions. 

Let’s not forget that in March 2020 the economy was put into a self-induced economic coma.  The NCUA responded by, among other things, temporarily raising the maximum aggregate amount of loan participations that a FICU may purchase from a single originating lender to the greater of $5,000,000 or 200% of the credit union’s net worth and temporarily suspending certain limitations on the types of eligible obligations that a FICU may purchase and hold. In one of its last acts of 2021, the Board concluded that the continued economic uncertainty justified continuing these regulations for another year.  This conclusion has already been vindicated as the economy continues to produce contradictory smoke signals on a weekly basis. 

These temporary amendments provide potential benefits that go beyond the immediate economic situation.  The existing eligible obligation regulations are too restrictive now that more and more platform lenders are getting into the business of facilitating loan participations and eligible obligations.  While the explosion of these services offers expanded opportunities, particularly for smaller credit unions looking for a way to use all those deposits, credit union membership requirements continue to place restrictions on the use of these platforms by the industry.  By extending flexibility for another year, credit unions can further demonstrate that traditional regulations are needlessly restrictive and actually inhibit safety and soundness.

On that note, stay warm and enjoy your day.

January 10, 2022 at 9:31 am Leave a comment

OSHA Mandate Alive and Well, For Now

Usually I dedicate my last blog of the year to highlighting what’s best about the credit union movement, but recent events have made me feel like an extra in a movie where Scrooge meets Groundhog Day. Here’s more news on the OSHA mandate with which employers of 100 or more individuals must be in compliance with, starting January 10th.

On November 5th OSHA issued an Emergency Temporary Standard (ETS) generally requiring employers with 100 or more employees to either mandate all of their employees wear masks and agree to get tested on a weekly basis or mandate all of their employees get vaccinated.

Groups opposed to this standard ran to court quicker than the Omicron variant is spreading. The Court of Appeals for the Fifth Circuit issued an order banning OSHA from enforcing the emergency standard. On Friday, the Court of Appeals from the Sixth Circuit reversed this ruling meaning that you should be preparing to comply with OSHA’s mandate. The next stop is the Supreme Court.

Remember that the core legal issue that the courts are ultimately deciding is not whether employers can mandate that their employees get vaccinated or wear a mask but whether OSHA has the legal authority to issue health and safety standards related to a pandemic. In the meantime none of this has any impact at all on New York City’s mandate requiring employers to mandate that employees working in an office be vaccinated starting December 27th.

This is not a very merry note on which to end my last blog of the year, so Merry Christmas, Happy New Year, thanks for reading and let’s hope that 2022 is a heck of a lot better than the last two years that have preceded it.

December 22, 2021 at 9:09 am Leave a comment

The Direct and Immediate Impact of New York’s COVID Mandate

Yours truly gives himself a wide scope to delve into when it comes to material for this blog. But, I never thought I’d be delving into New York’s Public Health Law as part of my research. But then again we live in strange times, don’t we?

As I’m sure you know, on Friday Governor Hochul announced that businesses are required to either insist that individuals show proof of vaccination or require everyone to wear a mask before entering a building.  This has a direct and immediate operational impact on your credit union.

Most importantly, it applies to your credit union regardless if it is state or federally chartered. In addition, unlike the proposed OSHA mandate which is currently being litigated, it applies to all businesses regardless of how many employees they have.  It also applies to all credit union branches.  You can comply with this new mandate by either requiring all persons entering a branch to show prove that they have been vaccinated or, more realistically, by requiring all persons entering a branch to wear a face mask. 

The new mandate can be enforced by the Department of Health and also by the Department of Labor. Remember that under New York Law, your employees have an explicit right to bring issues regarding the spread and prevention of airborne infectious diseases to your attention and sue you in the event that you fail to take appropriate remedial action.

What I am getting at is that New York’s new mandate will have a more direct impact on your credit union than the proposed OSHA mandate. And whereas the OSHA mandate may never make it through the legal gauntlet, states such as New York have long had the statutory and regulatory framework needed to directly address public health issues. Remember, pandemics have been around for hundreds of years but states and localities have historically had the primary responsibility to deal with them.

On that note, put that mask on and enjoy the day.

December 13, 2021 at 9:13 am 1 comment

NY’s Hero Act Takes Center Stage

With the emergence of the omicron variant (doesn’t that sound like something out of a bad Arnold Schwarzenegger movie?), it may very well feel like we are extras filming a bad sequel, but I’m here to remind all of my faithful readers that the newest surge is coming about under a new statutory mandate which will impact your credit union’s operations regardless of whether you are a state or federal credit union.

I’ve talked about the Hero Act in the past but I think it is worth one more mention as businesses prepare for potential restrictions even as the legality of federal mandates continues to be litigated.

The Hero Act refers to New York State legislation which created minimum state level standards for businesses responding to an airborne infectious disease. Think of it as a state level OSHA mandate but only for airborne infectious diseases as declared by NY’s Department of Health. When the legislation was first enacted in April 2021, we were hopeful that employers would simply have to adopt an infectious disease plan and file it away. In September, however, the Department of Health declared COVID-19 and airborne infectious disease. Now with the emergence of a potentially more infectious variant which may be resistant to existing vaccines, employers should remind themselves of what they have committed to in their workplace policies and the consequences for non-compliance.

For example, in your policies you’ve detailed protocols on a broad range of issues ranging from mask wearing protocols to the appropriate distances between employees.  These are more than aspirational goals. As a matter of New York State law, employees have the right to bring violations of these workplace policies to their employer’s attention. If the employer fails to “cure these conditions” an employee may ultimately refuse to work based on a good faith belief that continuing to do so would expose them to an airborne infectious disease. You can also face fines and litigation.

The bottom line is that not only should you have an airborne infectious disease plan in place but you should make sure that it is being followed and that you have a procedure in place for documenting and responding to employee concerns.

In the meantime, the State has not imposed any additional health and safety requirements for your credit union at this time. However, yesterday Governor Hochul did urge businesses to “encourage” their employees and patrons to wear masks indoors. 

On that happy note, enjoy your day.  Yours truly is going to be scheduling his booster shot.

November 30, 2021 at 9:29 am 1 comment

Where Do Credit Unions Stand With Vaccine Mandates?

In September the President took two dramatic steps in response to COVID-19, both of which are now subject to litigation: He issued an Executive Order requiring all executive branch agency employees and their contractors to get vaccinated. Secondly, he ordered OSHA to promulgate emergency workplace safety standards mandating employers with 100 or more employees require their employees get vaccinated or agree to get tested for the vaccine on an ongoing basis.

In yesterday’s blog, I explained that credit unions are not subject to the President’s Executive Order because NCUA is an independent agency. In response, a reader asked me if this also meant that credit unions with 100 or more employees were exempt from the OSHA mandate. With the usual caveat that my opinions are my own, and not a substitute for legal advice from your retained attorney, the answer is that credit unions would be subject to OSHA’s vaccine mandate, but it remains to be seen whether or not it will ever take effect.

The financial service industry has not had to give much thought to OSHA in the past because it has never been made subject to industry specific workplace safety standards. Under the law regulating OSHA, however, an employer is any business engaged in commerce, a category which certainly includes credit unions of all shapes and sizes. As a result, if the OSHA mandated vaccine requirement ever takes effect, every credit union with 100 or more employees will have to comply. 

But it is far from certain that this requirement will ever make it through the legal gauntlet. The Court of Appeals for the Fifth Circuit has already issued a nationwide order blocking OSHA from implementing the emergency standard. In its decision, the Court explained that OSHA was exceeding the power given to it by Congress because the vaccination mandate “is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.” BST Holdings, L.L.C. v. Occupational Safety and Health Administration, United States Department of Labor, 2021 WL 5279381, at *4 (C.A.5, 2021)

The next stop is the Sixth Circuit, but there is virtually no doubt that the issue will ultimately be decided by the Supreme Court, a court which has taken an increasingly narrow view of administrative powers.

So where does this leave credit union HR professionals as they ponder next steps? Most importantly, if you were hoping that the law would mandate that your employees be vaccinated, then you should prepare yourself for disappointment. That being said, no matter what happens with the President’s proposals, your credit union still has all the authority it needs to mandate vaccination and/or testing if it chooses to do so for those employees in the workplace.

On that note, enjoy your Thanksgiving and don’t let your crazy Uncle Al get under your skin.

November 23, 2021 at 10:13 am 1 comment

Fast And Furious: New COVID Guidance

Remember how in early July we were deluding ourselves into thinking that we were fast approaching a post-COVID nirvana in which we could all frolic freely without needing face masks, debating vaccine mandates or worrying about holding backyard barbecues?

Fast forward to mid-November and regulators are adjusting to a world in which COVID is a chronic condition and we have to adjust to this new normal. For credit unions in general, and compliance folks in particular, this means updating policies and procedures to make sure that you are keeping up with the latest COVID inspired dictates. Here are some of the latest developments I’ve spotted over the last week and a half:

  • The NCUA announced that it was extending the authority of federal credit unions to hold meetings remotely provided they have adopted the appropriate bylaws and send the appropriate notices to their membership. Remote flexibility is one of the good things to come out of the pandemic and I for one am glad to see that credit unions can continue to take advantage of this common sense measure.
  • Federal regulators, including the NCUA, recently announced that mortgage servicers were no longer going to be given a “get out of jail free card” when it comes to complying with RESPA’s mortgage servicing rules.

              In April of last year the same group of regulators issued a joint statement explaining that, “the current crisis could cause temporary business disruptions and challenges for mortgage servicers, including staffing challenges.” As a result, the regulators announced that they were giving servicers greater flexibility to comply with Regulation X. The same group of regulators now feels that the adjustment period has ended. The other day they announced that “servicers have had sufficient time to adjust their operations… agencies will apply their respective supervisory and enforcement authority to address any non-compliance with Regulation X”.  This one is a bit of a head scratcher to me because I could swear there is still plenty of evidence that staffing shortages persist and that members are still in need of enhanced forbearance assistance.  At least according to the CFPB.   

  • Never to be ignored, on October 28th New York’s Department of Financial Services issued its own guidance detailing its continuing expectations for mortgage servicers to work with consumers impacted by the pandemic. The guidance also encouraged servicers to participate in a new program being unveiled to provide financial support for eligible borrowers. I will have more about this program in the coming days.

On that note, visualize your post-COVID happy place and get to work.

November 16, 2021 at 9:24 am Leave a comment

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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