Client Advisory: Attention Employers – Be Ready for Expanded Protections Against Workplace Harassment and Discrimination
By: Carter Conboy
On August 12, 2019, Governor Andrew M. Cuomo signed into legislation comprehensive new workplace legislation, a measure to expand the opportunities for employees to assert claims of workplace harassment and discrimination.
Portions of the new law will expand upon the protections implemented in June 2018 for victims of workplace sexual harassment (see our prior Client Advisories here and here) and brings New York State law in line with the protections afforded to employees under the New York City Human Rights Law.
Lowers the Burden of Proof for Workplace Harassment Claims
Previously, the New York Human Rights Law required an employee to prove “severe or pervasive” workplace harassment. The new legislation eliminates the “severe or pervasive” requirement and allows claims of harassment to be asserted if an employee can show “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more protected categories.” The new law also eliminates the use of Faragher-Ellerth, a common affirmative defense used by employers when an employee failed to follow the employer’s internal complaint procedures, among other things. Employers will no longer be able to raise that defense in State claims.
Extends the Statute of Limitations
The NYHRL provided a one-year statute of limitations for an employee to report a claim of sexual harassment to the New York State Division of Human Rights (NYSDHR). The new law expands the statute of limitations from one year to three years.
Amends Potential Damages
The NYHRL allowed the award of punitive damages and discretionary attorney’s fees in housing discrimination cases only. The new law will permit an award of uncapped punitive damages and require the award of reasonable attorney’s fees in cases of employment discrimination by private employers.
Amends the Definition of Covered Employer
Previously, the NYHRL applied to employers with four or more employees (except for cases of sexual harassment). The new law defines a covered employer to include all employers within the state, regardless of size.
Expands on the Protections of Non-Employees
The NYHRL protected non-employees, including contractors, subcontractors, vendors, consultants, or others providing services, from sexual harassment in the workplace. The new law expands those protections to include all forms of discrimination in the workplace.
New Rules on Non-Disclosure Agreements
Since July 2018, employers have been barred from including non-disclosure provisions in matters of sexual harassment claims unless the non-disclosure is the preference of the claimant. The new law expands this beyond sexual harassment claims to include any claim involving discrimination based on any protected class unless the non-disclosure is the preference of the claimant. If a claimant agrees to non-disclosure, they have 21 days to consider the terms and conditions. If, after 21 days, non-disclosure is still the claimant’s preference, all parties need to sign a “plain English” non-disclosure agreement. The claimant then has 7 days to revoke their signature.
Additionally, the new law requires that all non-disclosure or confidentiality agreements clearly set forth that the applicant or employee is not prohibited from speaking with law enforcement, the NYSDHR, the EEOC, a local commission on human rights, or an attorney in cases of discrimination.
Mandatory Arbitration Prohibitions Expanded
Employers were prohibited from enforcing, as a condition of employment, the mandatory arbitration of sexual harassment claims. The new law expands the prohibition of mandatory arbitration to all claims of discrimination on the basis of any protected class. Additionally, it requires the courts to interpret the NYHRL liberally regardless of the federal rollback of rights.
Additional Requirements on Sexual Harassment Prevention Training
Under the new law, employers will be required to provide employees, at the time of hire and at every annual sexual harassment prevention training, a notice containing the employee’s sexual harassment prevention policy and any information that was presented at the employer’s training program. The Notice must be in both English and the employee’s primary language.
Compliance and Claims
What are you doing to ensure your workplace is prepared and in compliance? Have claims been made against your business? Do you anticipate new claims with the expansion of these laws and the extension of the statute of limitations? If you are not in compliance, are not prepared to be, have questions about these new workplace harassment protections, or if you have or anticipate new claims, seek legal advice.
The attorneys of Carter Conboy have decades of experience representing employers and management in a wide-range of labor and employment issues, including counseling, planning, risk management, administrative proceedings, response to emergency and critical issues, representation before labor boards, and litigation defense.
This Client Advisory is provided as a courtesy to the clients of Carter Conboy. It provides general information and is not intended as legal advice and does not create an attorney-client relationship between Carter Conboy and the reader. Should the reader desire additional information about the content of this Advisory and/or its application, please contact attorney Michael J. Murphy at firstname.lastname@example.org or Mackenzie C. Monaco at email@example.com and (518) 465-3484.