On 16 March 2022, two changes to New York’s anti-harassment and anti-discrimination provisions were signed into law by Governor Hochul.
The first (A02035) requires the New York State Division of Human Rights (NYSDHR) to establish a toll-free, confidential hotline for complaints of workplace sexual harassment.
The second (S5870) prohibits employers from disclosing employee personnel files for opposing unlawful workplace harassment or discrimination or for initiating or participating in complaint procedures under the New York State Human Rights Law (NYSHRL). In addition, the New York Senate has passed additional proposed legislation that is currently pending in the Assembly.
Effective 14 July 2022, the NYSDHR will be required to establish and maintain a toll-free, confidential hotline to provide assistance to employees complaining of workplace sexual harassment. Employees who call this hotline will be assisted by pro bono attorneys recruited by the NYSDHR. Information regarding the hotline will be added to all required workplace posters and sexual harassment materials by the NYSDHR in collaboration with the New York Department of Labor. The hotline will not extend to other forms of discrimination or harassment covered under the NYSHRL.
Effective immediately, the anti-retaliation provisions of the NYSHRL specifically prohibit employers from disclosing or releasing an employee’s personnel file in retaliation for opposing unlawful workplace harassment or discrimination or for initiating or participating in complaint procedures (except where necessary to respond to or defend a civil or criminal action or in a judicial or administrative proceeding).
The law was further amended to permit the Attorney General to commence a proceeding against an employer upon information and belief that the employer has violated, or is about to violate, this new provision.
There are even more changes on the horizon. The Senate has passed multiple bills addressing workplace harassment and discrimination that are pending in the Assembly.
Consistent with the New York City Human Rights Law, one proposed amendment (S566A) would increase the amount of time that an employee has to file a complaint of sexual harassment with the NYSDHR from one year to three years. Another proposed amendment (S849A) would increase the statute of limitations for any lawsuit brought under the NYSHRL from three to six years.
The other pending bills both relate to settlement agreements. One (S766) would prohibit no-rehire clauses from any agreement in which an employee or independent contractor releases claims against an employer. No rehire clauses are common in many settlement agreements and prevent an employee from applying for employment with the employer in the future (and protect the employer from future litigation if that employee is not hired). Inclusion of a no-rehire provision will not affect the enforceability of the agreement itself.
Finally, there is an amendment that would further weaken employers’ ability to enforce non-disclosure provisions in settlement agreements. Currently, non-disclosure provisions are only allowed where they are the employee’s preference and require a period of review and revocation if included. This law would further restrict such provisions by prohibiting the parties from agreeing to a liquidated damages amount in the event of a breach. Notably, inclusion of such a provision would render the entire agreement unenforceable.
Employers in New York should be aware of these changes and ensure that their workplace posters, policies, and settlement and separation agreements, and other documents are consistent with the current law.
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