We recently published a client alert concerning pending New York State legislation expanding worker protections under the New York State Human Rights Law (NYSHRL). On August 12, 2019, Governor Cuomo signed that legislation into law. Accordingly, employers should be aware of the following new legal requirements and their corresponding effective dates.
Effective immediately, employers must provide their employees, both at the time of hire and during the required annual anti-harassment training, a copy of the "employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program." Notice must be provided in the employee’s primary language, if the state has published a model policy in that language.
As of October 11, 2019:
- An aggrieved employee will no longer be required to show that harassment is "severe or pervasive" in order to assert a claim under the NYSHRL. Instead, aggrieved individuals need to demonstrate only that they were subjected to "inferior terms, conditions or privileges of employment because of the individual’s membership in one or more … protected categories." The employer may assert an affirmative defense that the complained-of conduct does not rise above the level of a “petty slight or trivial inconvenience.”
- To prevail in harassment cases under the NYSHRL, individuals will no longer be required to demonstrate they were treated less favorably than individuals outside their protected class.
- In response to harassment claims under the NYSHRL, employers may no longer invoke the Faragher/Ellerth defense (which generally requires complainants to utilize their employer’s internal complaint procedure prior to seeking relief from a court or administrative agency). Earlier legislation required employers adopt policies preventing sexual harassment in the workplace. This new legislation states employers who have adopted such policies are nevertheless not protected from potential liability.
- A prevailing employee may be entitled to an award of punitive damages under the NYSHRL.
- A prevailing employee will be awarded reasonable attorney’s fees.
- Non-employees providing services to a business (such as contractors, vendors, subcontractors and consultants) have standing to assert a claim of discrimination, harassment or retaliation under the NYSHRL.
- In a settlement agreement concerning any claim of discrimination under the NYSHRL, confidentiality provisions must be at the complaining party’s preference. The complaining party must be given twenty-one days to consider the confidentiality provision prior to execution, and seven days after execution to revoke it.
- "[E]xcept where inconsistent with federal law," employers may not compel arbitration of any claim of discrimination, harassment or retaliation under the NYSHRL. In light of the fact a federal court recently held the Federal Arbitration Act (FAA) "sets forth a strong presumption that arbitration agreements are enforceable and that this presumption is not displaced by" New York’s 2018 law prohibiting the arbitration of claims of sex harassment, it is likely that, for most employers, the FAA will preempt this provision of the law. Latif v. Morgan Stanley, No. 18-cv-11528 (S.D.N.Y. June 26, 2019).
As of January 1, 2020, confidentiality agreements ancillary to employment must include a specific carve-out for communications with "law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee."
As of February 8, 2020, the definition of an employer under the NYSHRL is expanded to include an employer of any size.
As of August 12, 2020, the limitations period for asserting a claim of sex harassment under the NYSHRL is expanded from one year to three.
Action Items for Employers
Employers should take immediate steps to ensure their anti-harassment policy as well as the information presented at their annual training sessions, is distributed to all employees at the time of hire and when the training is conducted.
Additionally, employers are reminded to take the following steps in anticipation of the effective dates set forth above:
- Review all employment-related agreements to ensure that the required carve-out from non-disclosure/confidentiality provisions is included;
- Review settlement agreements to remove non-disclosure/confidentiality provisions where the agreements involve claims of harassment, discrimination, and/or retaliation under New York State law; and
- Review arbitration provisions in all employment-related agreements to ensure that they are governed by the Federal Arbitration Act, which preempts state law banning arbitration.