We have said this before and we will say again: New York is definitely in the running to supersede California as the most challenging state for employers. New York has implemented new requirements which will require employers to revise their employee handbooks, offer letters and employment agreements.
For example, employers need to look at any form offer letters, employment agreements or confidentiality agreements that contain non-disclosure clauses. Any such letters or agreements that are entered into after January 1, 2020, will need to include carve-outs for the disclosure of any factual information related to any future claim of discrimination, unless the provision explicitly notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the EEOC, the state division of human rights, a local commission on human rights, or an attorney retained by the employee.
New York employers should also remember that, since October 2019, confidentiality provisions in releases of any discrimination claims (not just harassment claims) are only valid if the employee has been given 21 days to consider the confidentiality provision, and 7 days after execution to revoke it. Moreover, the employee cannot waive the 21-day period, as they might when considering a release of a claim under the Age Discrimination in Employment Act; they must wait at least 21 days before they sign the agreement.
New York has also passed a new law prohibiting discrimination based on an employee’s or dependent’s reproductive health decision-making. While I suspect that few New York employers would have considered engaging in such discrimination, the law is unusual in that it also requires employers who provide employees with an employee handbook to include a notice of employee rights and remedies under this new law in the handbook.
If there is one message that I would want my readers to take away from this blog post, it is that you should never assume that an employee handbook, offer letter, employment agreement or severance agreement that was drafted by your very capable employment lawyer several years ago will be forever compliant. Also bear in mind that New York and California are not the only states where new employment requirements have been enacted. It’s probably a good idea to check with your human resources expert or employment lawyer to make sure that your forms are still good.