Later this week, on October 11, 2019, several important changes are coming to the New York Human Rights Law (“NYHRL”).
As you may recall, last year the New York legislature enacted legislation prohibiting employers from requiring nondisclosure sexual harassment claims in Nondisclosure Agreements (“NDA”) unless the employee requests confidentiality. As of next week, that prohibition is strengthened to include all claims of discrimination, harassment and/or retaliation in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination … that would prevent the disclosure of the underlying facts and circumstances … unless the condition of confidentiality is the complainant’s preference.” If the employee requests confidentiality, then the Agreement may contain this provision.
Notably, the law does not prohibit the confidentiality of the settlement amount or of the NDA itself.
NDAs now must also be written in plain English and in the primary language of the employee. In addition, they must give the employee at least 21 days to consider the NDA and contain a 7 day revocation period if the employee wishes to revoke their consent.
Additionally, as of January 1, 2020, NDAs must include that employees are not prohibited from “speaking 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 New York State and New York City have strengthened their stances on sexual harassment and discrimination, New York employers must remain vigilant and stay abreast of all of the changes in the law and adapt accordingly. If NDAs do not abide by the above requirements, they will not be enforceable.