Governor Kathy Hochul is expected to sign into law amendments (S5870 / A7101) to the New York State Human Rights Law (NYSHRL) that would modify the definition of unlawful retaliation to include "disclosing an employee's personnel files because he or she has opposed any practices forbidden under [the NYSHRL] or because he or she has filed a complaint, testified or assisted in any proceeding." If signed, the law would take effect immediately.

The stated purpose is to prohibit the "release of personnel records to discount victims of workplace discrimination." The amendment would still permit employers to disclose personnel information "where such release is necessary to respond to a complaint, civil or criminal action, or judicial or administrative proceeding."

The amendment, however, is not well-defined. Specifically, it does not define what is considered a "personnel file," nor does it explain what action would be considered a "disclosure" of those files—matters that presumably will be left to future regulations. At its core, the amendment would prohibit an employer from communicating with the media or through other public avenues about the misconduct or performance problems of an employee who has lodged a complaint of discrimination or harassment.

The justification for the amendment refers to "recent events" involving the "leaking of personnel files with the intent to disparage or discredit a victim or witness of discrimination in the workplace." This is apparently a reference to allegations in the report issued by New York Attorney General Letitia James that officials in former Governor Cuomo's office provided journalists with personnel information regarding an employee who accused Cuomo of harassment.

The amendment allows individuals who believe an employer has released personnel information to (i) file an administrative complaint (such as with the Governor's Office of Employee Relations, the State Division of Human Rights, or the United States Equal Employment Opportunity Commission) or (ii) file a lawsuit directly in court. The NYS Attorney General may also initiate an enforcement action, even before a violation has occurred, if a violation is believed to be imminent.

Next Steps

Employers should carefully monitor the release of any information about an employee who has made a complaint of harassment or discrimination and make sure that managers and supervisors understand that they are not authorized to make any public comments about such employees on behalf of the employer.

DWT attorneys will monitor and report on any guidance issued regarding this amendment to the NYSHRL, as well as any further amendments, and are available to provide advice and counsel to employers in New York to ensure compliance.